The Climate Crisis: The Ignored Case For The Legal Personality And Rights Of Mother Nature By Koikoibo Dieworimene.





 

Introduction


Despite the glaring facts and science of climate change, and the need for urgent action, world governments continue to dabble and dribble around the needful: to stop the emission by stopping the destructive extraction and changing the mentality that enables the exploitation of Earth-to keep the oil in the soil, the coal in the hole and respect the Earth. Rather, proposed solutions by industry players and big shots include carbon offsetting, carbon capture and sequestration and other market-oriented mechanism that encourage continuous extraction and exploitation of the Earth. All false solutions in favour of fossil.



This worrying lack of desire or will to stop is further evident in the just released Production Gap Report by leading research institutes and the United Nations Environment Programme (UNEP), which finds that governments still plan to produce more than double the amount of fossil fuels in 2030 than what would be consistent with limiting global warming to 1.5°C. The Earth will continue to burn and suffer without the needed redress. This is troubling and upsetting. It is against this backdrop, and ahead of the forthcoming 26th Conference of Parties, that this piece sets out to present, again, the case for the Rights of Mother Earth.


The Declaration


On April 22 - Earth Day, 2010, approximately 35,000 people from 140 countries under the aegis of the World People's Conference on Climate Change and the Rights of Mother Earth ("the Conference"), convened in Cochabana, Bolivia. The outcome of the Conference was the proclamation of the Universal Declaration of the Rights of Mother Earth ("the Declaration"). The Conference in Bolivia is widely praised for being an inclusive discussion on the vital issues resulting in the Declaration that demands respect for the Earth, unlike the preceding meeting in Copenhagen in 2009 which was reportedly "untransparent and undemocratic".


Drawing inspiration from previous documents like the Universal Declaration of Human Rights, 1948 and the Earth Charter, 2000, the Declaration contains a Preamble and four Articles with provisions aimed at guarding the Earth. The Preamble of the Declaration admits that 'we are all part of Mother Earth, an indivisible, living community of interrelated and interdependent beings with a common destiny.' and gratefully acknowledges 'that Mother Earth is the source of life, nourishment and learning and provides everything we need to live well.'


Article 1, entitled 'Mother Earth', states that the Earth is a living being with inalienable rights arising from the same source of existence; that these rights are to be had without distinction of any kind 'such as may be made between organic and inorganic beings, species, origin, use to human beings, or any other status.' Article 2 is an enumeration of the 'inherent rights of Mother Earth'. The rights include the right to life and exist; the right to be respected; the right to generate its bio-capacity and to continue its vital cycles and processes free from human disruptions; the right to clean air; the right to water as a source of life; the right of every being to be free from torture or cruel treatment by human beings, etc.


Article 3 enshrines obligations for human beings with respect to Mother Earth. It begins by stating that every human being is responsible for respecting and living in harmony with Mother Earth, and goes on to enumerate obligations for both public and private institutions of state, including the obligation to 'establish precautionary and restrictive measures to prevent human activities from causing species extinction, the destruction of ecosystems or the disruption of ecological cycles.' Article 4, the last, is entitled 'Definitions', and it defines the term 'being' to include ecosystems, natural communities, species and all other natural entities which exist as part of Mother Earth.


Legal Status of the Declaration


The provisions of the Declaration appears to stem from the legal and jurisprudential theory which opposes twentieth-century laws that address nature as "resource", to be owned, used, and degraded. Nevertheless, however attractive its provisions are, the Declaration remains a 'soft law' as it is yet to be adopted by the United Nations General Assembly and incorporated in a binding instrument. Though it has the potential of morphing into 'hard law' in the future even as the world explores solutions to the climate crisis, it presently does not have any legally binding force.


Justification and Arguments for the Rights


In Africa as it is in other indigeneous populations, there is a philosophy of reciprocity and respect for nature ingrained in the traditions of indigenous populations. There are forests one cannot touch, lakes one cannot fish in, fishes one is not allowed to eat (at least not until a particular season arrives) and so on. This philosophy conceive nature as sacred and its resources are used only as long as nature can regenerate. By the way, these are the societies that are called 'primitive' societies by supremacists. The paradox.


But it is quite simple. If human beings claim to have inalienable rights simply by virtue of their existence on Earth then why should not the Earth, which precedes the existence of humans equally have inalienable rights? The truthful answer to the logic has been denied in order to serve man's greed. Man wants to dominate - an idea that he seems to have justified even in his religious texts: "multiply and have dominion over all the Earth." But what kind of king destroys his own kingdom, the place of his dominion and throne? A failed king. Not to be overly religious, but human governments have failed in their 'divine mandate' to dominate, no, scrap that, tend the garden.


Through Law, governance of human conducts, with rights and obligations at the center of modern laws and legal systems, have been made possible. But the many existing laws of man are man-centered and have been unable to protect the Earth. Man's laws address nature as "resource", to be owned, used, and degraded. It has been an abusive relationship with the same character and consequences as colonialism. The colonialist exploits the resources of a foreign land for his benefit or that of his home country, believing that any damage done in the foreign country will not affect him or his home. Man seems to somehow believe that he has a "home country" apart from Earth, a delusion that has spurred him on to cook up laws that protect or promote his reckless exploitation of the "foreign country" Earth. A the-Earth-can-die-we-have-Mars-and-others mentality. This human-centered legal system is unjust just the same way the legal systems of countries that do not recognize human rights are considered unjust.


And because these man-centered laws have failed to prevent man from degrading the Earth, they must be restructured to capture the very nature of human being, that is, human-being-in-relationship-with-other-beings of Earth. No, not just because man will be affected by what happens to the other beings but for the very existence of the other beings without distinction as to their use or service to humans. I mean, human rights are inalienable because of our mere existence regardless of race, sex etc. and not because we serve Earth, right? Likewise should it be for the Earth's rights. The river should have the right to healthily take its course to meet the ocean for the sake of it and should be allowed to sue and seek redress when this right is violated.


The argument is that, if we say that nature cannot stand in court as it is not a being: what about Corporations and entities other than human beings, that have rights and can stand in court in the current legal systems? If corporations can have standing in court so should nature have rights and be represented in court.


It is not even a question of whether it can be done since it has been done before. In New Zealand, by virtue of Part 2, Article 14, of the Te Awa Tupua Act, 2017, the Whanganui River is a legal person that will be able to be represented in court proceedings and would have two guardians, one from the Crown and one from the Whanganui iwi. It explicitly grants legal personality to an entity within nature-the Whanganui River. Similarly, the Uttrakhand High Court in India recognized that both the Ganges and its main tributary as well as "all their tributaries, streams, every natural water flowing with flow continuously or intermittently of these rivers" would be "legal and living entities having the status of a legal person with all corresponding rights, duties and liabilities." The Ecuadorian Constitution also recongnizes the rights of Pacha Mama. So no, it's not out of this world to recognize the legal personality of nature. Just recently,  Pablo Escobar’s hippos (illegally imported) and their offsprings in Colombia, have become the first non-human creatures to be legally considered people by US courts. Again, it is not out of this world.


Let it be noted also, that there need not exist a link between legal subjectivity and the ability to bear duties. For instance, children have the right to be represented in court but do not bear any responsibility. In fact, even unborn children have been accorded certain rights and protection without reciprocal duties. Nature's rights do not need to have reciprocal duties.


The Promise of the Declaration to the Climate Justice Campaign


The Declaration promises to revolutionize the public perception of our relationship with the environment as well as reform laws which address nature as "resource", to be owned, used, and degraded. For example, under Nigerian natural gas legal regime, there is no outright ban of gas-flaring despite its scientifically-proven capability to degrade the eco-system; rather, companies are made to pay paltry sums for every cubic feet of gas flared to the continuous detriment of the ecosystem. Another example is the law that permits partial environmental impact assessment for projects in areas that are not designated as 'environmentally sensitive' in order to encourage development. All these laws place premium on economic development rather than sustainable development, and no doubt need to be jettisoned for eco-centered laws. The Declaration will serve as a catalyst for the reformation of legal systems, and the revision of global as well as national environmental laws & policies such as the ones cited above, from being anthropocentric to truly nature-centered.



The contents of the Declaration and laws inspired by it can be used to stem court actions in defense of 'ecosystems, natural communities, species and all other natural entities which exist as part of Mother Earth.' It is in this vein also that the newly defined crime of ecocide will be used by an environmental justice campaigner. Ecocide, defined as the "unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and widespread or long term damage to the environment being caused by those acts", is a direct affront on the rather dubious corporate personality of companies - which had been exploited by big polluters to perpetuate damage to the environment without fear of personal consequences. That is to say, the crime of ecocide when in force threatens to not only force defaulting companies to fold but also to tear right through the corporate veil and force complicit directors to answer for the consequences of their decisions in the name of companies. With ecocide, environmental litigants will go beyond the pay-to-pollute legal regime to a more effective you-pollute-you-pay-personally regime as officers of corporations who are complicit in environmental degradation risk long terms of imprisonment if not death.


Conclusion


In the words of Dr. Nnimmo Bassey, "the word 'resource', implies that nature's wealth is a bounty, ready for corporate robbery. But we as humans frame this dilemma of extraction incorrectly if we don't point out the intrinsic right of nature to survive on its own terms. Most importantly, we are part of Mother Earth, not apart from her. Her rights to exist and reproduce the conditions for all species' existence are not to be violated." We have seen the consequences of not heeding this warning.


The world has to be humble enough to recognize Mother Nature for who she is, if we are to survive the crisis. Fortunately perhaps, on December 22 of the same year the Declaration on Rights of Mother Earth was made, the United Nations General Assembly passed a resolution which they put the issue of Mother Earth's rights as an item on the UN agenda. It is also noteworthy that the idea of rights of Mother Earth has already made it into the national jurisprudence of many countries, including Bolivia, Ecuador, India, Colombia, New Zealand etc.


This, however slow, is progress for the Rights of Mother Earth. Let us note that even the Universal Declaration of Human Rights as a declaration of hope into a post-war world, had no legal basis as a document. Presently, however, over six decades later, its various provisions have become so respected by States that it can now be said to be Customary International Law and has been incorporated into the laws of many countries and also form the basis for the International Criminal Court. This is hope. But how much time do we have left before the Earth burns out? For how long do we intend to deny Mother Nature her rights and legal personality? The world must act with urgency.


Sources:


1. "Universal Declaration of Rights of Mother Earth", accessible at www.therightsofnature.org/universal-declaration/ (last accessed 23 October 2021)

2. 2021 Production Gap Report by UNEP available at https://www.unep.org/resources/report/2021-production-gap-report (last accessed 23 October 2021)

3. "General Assembly Proclaims 22 April 'International Mother Earth Day' Adopting by Consensus Bolivia-led Resolution", accessible at https://www.un.org/press/en/2009/ga10823.doc.htm (accessed 23 October 2021)

4. "Law of the Rights of Mother Earth", accessible at https://en.m.wikipedia.org/wiki/Law_of_the_Rights_of_Mother_Earth. (accessed 23 October 2021)

5. "Climatic Chaos and False Solutions" in To Cook A Continent by Dr. Nnimmo Bassey (published in 2012 by Pambazuka Press (ISBN: 1–906387–53–2))

6. "Rights of Nature; Rivers that can Stand in Court" by L.C. Percheromman, Resources 2018, 7(1), 13. Available online at https://www.mdpi.com/2079-9276/7/1/13/htm (accessed 23 October 2021)

7. "A Legal Case for the Universal Declaration of the Rights of Mother Earth" by Cummarc Cullinan. PDF available for download at https://therightsofnature.org/wp-content/uploads/pdfs/Legal-Case-for-Universal-Declaration-Cormac-Cullinan.pdf (downloaded 23 October 2021)

8."Pablo Escobar’s cocaine hippos legally recognised as people by US court" available at https://www.euronews.com/green/amp/2021/10/22/pablo-escobar-s-cocaine-hippos-legally-recognised-as-people-by-us-court (last accessed 25th October, 2021).

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