Nature’s locus standi: Taking the Environment to Court

With institutions, both public and private, defining the functioning of major world economies, we have come a long way from the early days of industrialization to extensive urban development and technical advancement. In this developmental process, vital players in the economy seem to have neglected the importance of safeguarding the natural environment.

Actions of individuals, corporations, and governmental organizations have resulted in all-round environmental degradation. At the onset of a new decade ahead, there is a pressing need to address the crimes against the environment and hold people liable for ecocide.

“Ecocide” is a term coined in 1970 by Professor Arthur W. Galston, to define harm to the environment. The Stop Ecocide Foundation defines ecocide as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.” 

This article aims to explore the history behind the development of ecocide, highlight the exigency to include ecocide as an international law enforceable under the International Criminal Court, and further understand the scope of bestowing juristic rights upon the environment.

Crimes against environment

In the last few years, especially since the 2016 publication of the policy paper of the Office of the Prosecutor of the International Criminal Court (ICC) on ecocide (crime against the environment), there has been an ongoing debate on including the concept within the four recognized crimes (genocide, humanitarian crimes, war crimes, and aggressive crimes) under the jurisdiction of the Court. Though ecocide has not been officially recognized in the statute, the mere discussion has invigorated the means of addressing climate and environmental justice.

Establishment of ecocide as an international crime could face hurdles, given that it is not a case of crime directed against humans in general. Humans are juristic individuals with rights intrinsically and extrinsically bestowed upon them. When the Roman Statutes inspired the procedural and substantive laws of the ICC, it was only these rights that were recognized. Environmental laws found their way only as allied topics involving illegal natural resource exploitation, land grabbing, and environmental damage.

However, in the current scenario, our environment has reached its breaking point. The limited natural resources we have need protection in terms of legal sanctions to hold liable those who engage in willful destruction of the environment.

Why is it hard to recognize ecocide as an international crime?

Unlike crimes against humanity, it is challenging to define what precisely constitutes crimes against nature. Nature is not just one entity altogether but is an umbrella term that comprises the living (plants and animals) and non-living (landscapes, water, and the like). Clearly, quantifying the damages and accurately demarcating the affected region becomes an arduous task. Thus, it is necessary for understanding these issues on a case-by-case basis. Consider the following.

Case 1: Oil Spills

Oil spills are either unexpected disasters or negligent actions that lead to an accident. In 1989, the Exxon Valdez (owned by ExxonMobil) collided with the Bligh Reef in Prince William Sound leading to wildlife and economic losses quantified at $2.5 billion. An investigation conducted during the cleaning process found that the captain of the ship had assigned the job of steering the ship to an unlicensed crew member, leading to the collision and the consequent environmental damage.

Case 2: Discharge of effluents into water bodies

Bellandur and Varthur lakes in Bangalore have been the recipients of industrial effluents and sewage wastes for over 50 years. Huge toxic froth formations have destroyed aquatic life. Additionally, the toxic effluents and garbage thrown into the lake caused the entire lake to catch fire in 2015. Efforts have been taken since then to fight for the protection of the lake. The National Green Tribunal and an NGO called Bangalore Environment Trust have made an appeal to the state government to take urgent steps to prevent such acts of criminal negligence. Mismanagement of waste and garbage has led to such disastrous consequences that effective reversal of damage is a difficult task.

Case 3: Cryptocurrency 

El Salvador became the first country to legalize cryptocurrency as a legal tender. Other nations are also moving towards digitizing their money. Cryptocurrency usage consumes large amounts of energy and fuel, which is detrimental to our natural resources. Japan’s Fugaku, an exascale supercomputer, is in the final stages of starting operations. It is rather ironic that the primary purpose of Fugaku is to fight the world’s greatest challenges like climate change. China has one of the most highly developed supercomputers in the world. The US has developed two of its own indigenous supercomputers which have been used by the US National Nuclear Security Administration and US Department of Energy.

Case 4: Nuclear Testing 

Despite the ratification of the Comprehensive Nuclear-Test-Ban Treaty (CTBT) by several countries, Israel, China, United States, Egypt, and Iran have yet to ratify it due to geopolitical and security concerns. Most of the countries under consideration have engaged in nuclear weapons testing, resulting in colossal environmental damage. When the United States conducted the Bravo Test in 1954—thousands of times more powerful than Hiroshima—it not only impacted human health, but also had vaporized an entire island leaving behind a crater.

Each of the above cases call for different approaches. Some are sheer negligence, while others are done with full knowledge and awareness that it would pose environmental hazards. Some are a one-time accident, while others inflict environmental harm on a continuing basis. What single formula addresses the environmental damage caused by each? How does one accrue rights to the environment? Can the environment itself be considered as an entity recognized by law?

Taking nature to court  

Standing tall in the west coast of New Zealand’s North Island, Mount Taranaki, a dormant volcano, was given the same legal rights as that of a person in 2017. It was recognized as a “legal personality in its own right” respecting the deep sentiments of the indigenous tribe, the Maori, who consider it sacred and integral to the identity of the community. Consequently, any harm done to the mountain would mean that the harm is being directly inflicted upon the tribe. The mountain was granted legal status following the Record of Understanding signed by the government and the Maori tribes. In the very same year, New Zealand’s Whanganui River was recognized as a legal person. The river was also an important identity of the Maori tribes who had fought for almost 150 years to get protection for the river. Back in 2014, Te Urewera (previously known as Te Urewara National Park), a mountain-cum-forest region bordering Hawkes Bay and the Bay of Plenty, was given legal status. In all these cases, the Polynesian tribe of Maoris’ associated nature as their very own ancestors.

Be it the river or the mountainous regions, it is considered “taonga (object or natural resource which is highly prized according to the Maori culture), as well as sources of food, shelter and spiritual connection for their people”. Signing the Treaty of Waitangi paved the way for providing legal rights to natural features like mountains and rivers. New Zealand’s step towards protection of a community has been beneficial in safeguarding the natural environment from destruction.

Many more attempts have been initiated across the world to establish legal rights in nature. In India, there have been attempts to provide legal standing to the Ganges and Yamuna rivers which are considered sacred by the Hindu community. There is an ongoing debate with respect to granting legal status to Lake Erie situated in Toledo, Ohio

Many of these ventures and successes to bring environmental personhood have been associated with indigenous communities’ spiritual beliefs and traditions. Still, the initiatives implicitly and unintentionally have paved the way for progress in environmental law and protection.

As mentioned earlier, nature comprises of both flora and fauna. When there is a forest fire or ocean warming, it jeopardizes wildlife and marine life, and disturbs the ecosystem. As far as India is concerned, in the case of Animal Welfare Board of India v. A. Nagaraja (2014), involving the protection of bulls from cruelty arising from Jallikattu (a traditional bull fight in the State of Tamil Nadu), the Supreme Court held that the right to life under Article 21 of the Indian Constitution can be expanded to include non-human animals. Following this, in the Karnail Singh v. State of Haryana, the Punjab and Haryana High Court held that animals should be given a legal status. 

In light of these developments, recognizing nature as a legal entity and giving it locus standi can catalyze the fight against environmental destruction and climate change.

Ksheeraja Satish  is a graduate from Stella Maris College.

Harshitha Satish is a graduate from Stella Maris College.

This post is adapted from Ksheeraja Satish’s paper, “Embracing Environmental Sustainability: The Case of Microsoft Corporation” available on SSRN.

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