JURIST Guest Columnist Sanket Khandelwal, a B.A. LL.B.(Hons.) student from Dr. Ram Manohar Lohiya National Law University, Lucknow, India, writes about different approaches to environmental personhood. . .
A legal personality or a juristic personality is an entity other than a natural being which the law deems capable of holding such rights and duties which are normally accorded to human beings exclusively. The rights accorded can range from a few legal rights which the according authority conceives to be cardinal to the functioning of the entity to an array of fundamental rights that protect the entity in every domain.
Salmond defines a legal person as:
“any subject matter other than a human being to which the law attributes personality. This extension for good and sufficient reasons of the concept of personality beyond the class of human beings is one of the most noteworthy feats of the legal imagination.”
The idea of an environmental entity existing as a legal person owes its genesis to the scholarly work of Christopher D. Stone “Should Trees Have Standing? Towards Legal Rights for Natural Objects” and the work’s subsequent referral by Justice William Douglas in the 1972 US Supreme Court case of Sierra Club v. Morton. The case is, primarily, remembered for the dissenting opinion of Justice William Douglas who contended for different environmental elements to have a locus standi before the court of law for their own protection and preservation. According to him, by having the regulatory agencies speak for distinct environmental elements, we were holding back the interests of these inanimate objects as the regulatory agencies had started to be more and more “industry-minded” and consequently were giving in to the idea of development at the cost of the natural aesthetic wonders. He believed all those people who share a purposeful relationship with any given environmental body should have a locus standi to defend the environmental body and its values. He asserted that the idea of an environmental entity having a locus standi wasn’t all that outlandish since inanimate objects like ships and corporate entities were already recognized as an acceptable adversary for an array of adjudicatory processes. By granting environment a standing to be heard, he contended, there will be better sustenance of the ecological equilibrium and preservation.
Even today the essence of the principle propounded by Justice William Douglas back in 1972 can be discerned in a number of judicial pronouncements and legislation across the world that advocate for according of certain rights to nature and some even going out of their way in according legal personality to an array of flora and fauna and other environmental elements. These developments come in as a welcome change to the usual legal narrative which maintains an anthropocentric view and perspective to cases and disputes involving nature. Jurisdictions like New Zealand, India, Bolivia, Ecuador, etc. have come up with diverse conceptions of environment as a judicial personality and thus it is rendered necessary to understand the rationale involved in each of these scenarios.
In the year 2007, Ecuador went through the Citizens’ Revolution (“La Revolucion Ciudadana”) which saw Rafael Correa rising up the ranks to become the country’s president. In persuasion of his promise of an anti-neoliberalist Ecuador, President Rafael Correa called for creation of a new Constitution for the country. The indigenous groups of the country, with the help of National Confederation of Indigenous Nationalities of Ecuador (CONAIE), proposed for the incorporation of their concepts of sumac kawsay (Good Living) and Pachamama (Mother Earth) in the new constitution.
Thus, consequently, the 7th chapter of the country’s new Constitution titled “Rights of Nature” recognizes Pachamama as a legal entity engendering nature to have rights “to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution.” In order to enforce the rights of nature, any individual or group of individuals can petition on behalf of nature. Thus, Ecuador became the first country ever to recognize and enshrine rights of nature within its Constitution.
The chain of events in Ecuador were soon followed by similar developments in Bolivia. Much like Ecuador, the demand for rights of nature was made by the indigenous groups of the country. In 2010, the Bolivian government came out with the “Law of the Rights of Mother Earth.” The law incorporated 10 articles, which enumerated 7 specific rights to Mother Earth and her constituting life systems (i.e. all other biological creatures). It gave nature rights relating to life, regeneration, biodiversity, water, clean air, balance, and restoration. The law also goes on to recognize Mother Earth as “collective subject of public interest.” This was done so as to ensure the exercise and protection of nature’s rights. Thus, this was a marked departure from the anthropocentric perspective to an Earth community-based perspective. Subsequently, in 2012, a full version of the same law came into being called “The Framework Law of Mother Earth and Integral Development for Living Well”.
3) New Zealand
In New Zealand, much in resemblance to the above two countries, the march towards granting personhood to environmental elements was started due to efforts of a tribal community. The Maori tribe and a few of its sub-tribes considered the Whanganui river as their ancestor. This particular idea was crucial to the Maori worldview and thus they fought for the recognition of the same for more than 140 years. Their efforts finally bore fruit in 2014, when the government personified Te Urewera (formerly a National Park) and brought into being the country’s first environmental legal person.
Soon after, the status of Whanganui river followed signaling the end of New Zealand’s longest running litigation. The river was awarded legal status as a living entity. The status accorded meant that the law would now treat the harming of the river the same way as harming the Maori tribe. Consequently, to help enforce the river’s rights, two guardians were appointed.
In India, much like in other countries, discrete environmental elements have been accorded with rights in the recent past, but with no major leaps in the domain. With no major legislation relating to nature’s rights, the progress has mostly been brought about by judicial pronouncements. In the case of T.N. Godavarman Thirumulpad v. Union of India, the apex court of the country stated that for proper justice to the environment it was necessary to drift away from the then prevalent anthropocentric perspective to a rather eco-centric one. Anthropocentrism involves appraising nature’s value for the benefits and advantages it can provide to humans. Contrary to this, Ecocentrism advocates for valuing nature for its own intrinsic value (nature-centered). On similar lines, there have been pronouncements relating to other living forms. In the case of Animal Welfare Board of India v. A. Nagaraja, the Supreme Court allowed that the Indian Constitution’s Article 21 right to life could be extended to non-human animals. Similarly, in 2013, India’s Ministry of Environment and Forests declared cetaceans as “non-human persons” in a bid to protect them from harm. The government stated that a research had concluded cetaceans to be highly intelligent and sensitive, and that dolphins “should be seen as ‘non-human persons’ and as such should have their own specific rights.”
The most important judicial pronouncement relating to Environmental personhood, though, came in 2017. The Uttarakhand High Court, in Mohd. Salim v. State of Uttarakhand, ruled that the two rivers, Gangotri and Yamunotri, are ‘living entities having the status of a legal person with all corresponding rights, duties and liabilities of a living person’. Soon after in Lalit Miglani v. State of Uttarakhand, the Uttarakhand HC declared that:
“the Glaciers, including Gangotri & Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests wetlands, grasslands, springs and waterfalls, are legal entity/legal person/juristic person/juridical person/moral person/artificial person having the status of a legal person, with all corresponding rights, duties and liabilities of a living person, in order to protect and conserve them.”
The ecosystem, surrounding Gangotri and Yamunotri, was also accorded rights akin to fundamental rights/legal rights. These two verdicts were challenged in the apex court of the country which ordered a stay provisionally.
Nearly a year after Uttarakhand High Court passed the above two orders, the Punjab and Haryana High Court, in Karnail Singh v. State of Haryana, came up with a similar ruling according the status of “legal person or entity” to animals in Haryana in pursuance of promotion of their welfare. The Court also declared every citizen ‘persons in loco parentis’ (in place of a parent) authorizing the state’s citizens to file petition on behalf of the animals harmed.
Last month too, the Punjab and Haryana High Court, while responding to a 2009 petition, declared Chandigarh’s Sukhna Lake to be a legal entity with rights, duties and liabilities of a living person. The court believed the decision to be imperative for the lake’s survival, preservation and conservation since the large-scale illegal construction in the catchment area, prevailing until then, had took an extensive toll on the ecosystem in and around.
What these developments bring forth is that, with the issue of climate change and rights of nature taking center stage in countries all across the world, legal personhood seems to have struck as a promising tool for observers because of the sheer unexclusive nature of corporate personhood that Justice William Douglas once contended. Just like Environmental personhood, the concept of corporate personhood had also met with a fair share of opposition. The idea of a corporate entity exercising its own rights and possessing duties, severally from the employees that actually run it, somewhat on par with the citizens of a country, did perplex the eminent jurists of the contemporary times just as the concept of environmental personhood does today. In its preliminary form, a primary upside to corporate personhood was that it provided a method to have a property in collective ownership and consequently the property could exist independently of any single person’s life span. With time it was seen that for better economic development, incorporation would be advantageous as contrary to the concept of partnership, a corporation continued to exist even after death of a partner. So, it’s evident that throughout history whenever the ambit of application of rights and duties is expanded it happens to seem unimaginable and unpractical. But once the abstraction is internalized and put into operation, it seems highly unremarkable and mainstream. Environmental personhood, as a concept, is traversing the same path in the legal sphere.
It’s apparent that the granting of legal personhood to environmental elements has always been undertaken with the intent of protecting nature and its elements. The progress, though, has been slow and largely in the form of judicial pronouncements. Apart from a few, none of the countries have endorsed any overt legislation to provide nature with rights or personhood. In view of the course that corporate personhood traversed on its way to the, supposedly, unremarkable present self, it becomes necessary for a precursory legislation to come into operation. Such exclusive legislation would act as an effective way to familiarize the society and nature observers with the edge that the concept of legal personhood provides over existing environment protection legal instruments in protection and conservation of distinct environmental elements. With environment protection laws throughout the world displaying their own set of limitations, in the light of climate change, the concept of Environmental Personhood becomes all the more crucial and enterprising.
But, conceptualizing a rights-based framework for protecting nature confronts us with a plethora of impediments. An entity bestowed with legal rights, within the Hohfeldian analysis of jural relations, is supposed to undertake certain corresponding duties as well, thus a person exercising a right to life has a duty to not endanger others’ lives as well, an idea which doesn’t seem all that practical from the outset. Even the transition from the present-day anthropocentric approach to the prospective eco-centric approach would mean that modern day states will have to change their perspective towards the concept of development since the latter puts highest stake on environmental protection and conservation. Also, according personhood to environmental elements would result in an overhaul in the relationship that man and nature have grown to share since the genesis of human civilization. But, nevertheless it is the change in the idea of relationship that man and nature share which has opened a whole new set of legal horizons for the rights of nature. The development of legal arguments in these horizons can possibly change the mindset of today’s society and normalize social imaginings of rights of nature and Environmental Personhood.
Sanket Khandelwal is pursuing his second academic semester of B.A. LL.B.(Hons.) from Dr. Ram Manohar Lohiya National Law University, Lucknow, India.
Suggested citation: Sanket Khandelwal, Environmental Personhood: Recent Developments and the Road Ahead, JURIST – Student Commentary, April 24, 2020, https://www.jurist.org/commentary/2020/04/sanket-khandelwal-environment-person/
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