Can Nature Have Locus Standi?

climate change

Can Nature Have Locus Standi?

The air we breathe, the water we drink and the food we eat, all come from nature. Nature plays an important role in balancing our lives. It regulates the environment but since the past many years it is in danger owing to the negative activities of humans against it, such as in terms of chlorofluorocarbons (CFC gases), deforestation and every kind of pollution. These activities cause disruption in nature’s work and processes. To protect nature from harms caused by humans, a movement was started in 1972 by Christopher D Stone, an American legal jurist. He argued about the rights of nature in his article called “Should Trees have Standing towards Legal Rights for Natural Objects”. In this article, he states that nature should have legal standing like other juridical entities such as partnerships, trusts and corporations. Moreover, he contrasts and compares the changes that have occurred in legal history by giving certain examples of the past like slaves, blacks, fetuses, women and even children, who did not have any legal standing. Even a father had the power to kill the child (infanticide) as the child was considered to be an object, a thing. Furthermore, pronouns for ships were referred to by courts in the feminine gender and now they too have an independent juristic life. In short, he has mentioned a movement which is away from the rights of people and towards the right of nature, and this phenomenon has also been admitted by U.S Supreme Court Justice William Douglas in his famous Sierra Club vs Morton case in 1972, in a dissenting note wherein he noted:

“Public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing     upon environmental objects to sue for their own preservation.” 

Rights of Nature Against People

We live in an age where we continue to ruin the environment at a horrifying rate although we understand the disastrous impact of our actions on both the environment and ourselves. This is the need of the hour for scholars to invent and propose alternative policies, institutional structures, and procedures that may aid people in reversing their dangerous course. A prime example of this type of undertaking is the proposal of Professor Stone’s article in which he briefly states that natural objects such as rivers, lakes, glaciers and trees should be given certain legal rights. Being fully aware of the fact that natural objects, if given legal rights, could not “voice” such rights, he suggests that when a natural object is being endangered, courts should, after a proper procedure, appoint a guardian for the natural object. The crux of the argument is that nature should be given the right of personhood like other juridical entities so that it can defend itself from the intrusion of modern civilization which is standing on the cruel edifice of nature against policies. This is the time to take a stand against the cruel policies of industrialization which comes into the shape of modernization. The most viable way to save nature is through the legalization process.

Can Rivers and Trees be Granted Legal Rights?

This is not the first time that nature has found itself attributed by law. In 2008, Ecuador became the first nation in the world to grant constitutional rights to nature. Article 71 of its Constitution describes that nature has “the right to exist, persist, maintain and regenerate its vital cycles”. Furthermore, it goes on to state that “every person, people, community or nationality” shall be able to demand the recognition of this right before public bodies.

Following are the contents of Article 71 of Ecuadorian Constitution, inscribed in the 7th Chapter of its Constitution:

“Nature or Pachamama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution. Every person, people, community or nationality, will be able to demand the recognitions of rights for nature before the public organisms. The application and interpretation of these rights will follow the related principles established in the Constitution. The state will motivate natural and juridical persons as well as collectives to protect nature; it will promote respect towards all the elements that form an ecosystem.”

In this matter, a suit was filed and won by the Americans in Ecuador (in the name of the Vilcabamba River and others), filed on behalf of nature in San Lorenzo and Eloy Alfaro districts in 2011. It was brought by the state which sued to stop illegal small-scale mining operations in the area.

Likewise, after the struggle of a 100-year campaign by the Whanganui Iwi, a local community in New Zealand, Parliament in New Zealand lately conferred the same status to the Whanganui River, making it the legal equivalent of a person, now the members of the community are being encouraged to press for a legal action in its name, just like a parent is able to file a suit on the behalf of the child.

Similarly, India, one of our neighboring countries, gave a judgment on the same basis in March 30, 2011. The High Court of the of the Indian State Uttarakhand stated:

“We, by invoking our parens patriae jurisdiction, declare glaciers including Gangotri and Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests wetlands, grasslands, springs and waterfalls, 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 preserve and conserve them. They are also accorded the rights akin to fundamental rights/ legal rights.”

The Situation in Pakistan

In Pakistan, the situation is different. No such constitutional developments have occurred in this regard except for the enactment of the Environmental Protection Act 1997. Moreover, the Environmental Protection Agency whose function is to materialize the Act in the true sense has failed to achieve it. On the other hand, Pakistan is among the top six countries in the world that will be most affected by environmental changes. If an immediate action is not taken within an appropriate time, the entire nation may have to face serious ramifications in terms of flooding like the one occurred in Pakistan in 2010 and 2011 due to climate change. Climate change not only brings natural disasters in the country but it also affects our economy in terms of lower productivity of goods and edible crops.

Hitherto, environmental law has been human-centric and stuck to the very idea that human beings need a clean and sustainable environment. This new approach is radically different from the one built on an opposing theory that nature is equally entitled to exist free from any interference by human beings. The polemics ask about the practicality of this novel approach for them. We have the model of New Zealand and Ecuador and according to which, on behalf of nature anyone can file a suit. In my opinion, since the last many years, immense changes have occurred from inappropriateness to legal rights in legal history. As it is known to all, in medieval era even women and children did not have legal rights but with the passage of time things have changed dramatically. From Magna Carta to the Bills of Rights to the abolishment of slavery, all have been historical milestones. Now the demand for rights of nature is not a big issue as stated above. Many countries have already given such constitutional rights to nature. So to solve the issue we have to legislate on this subject matter, not only for nature but also for our coming generations because “nature is life”.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Abdul Ghaffar

The writer is pursuing an LLB degree from Punjab University Law College. He has worked as an Intern at the Office of the Advocate General, Punjab and at Coca-Cola Beverages.



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