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Nature Has Rights Too
[Rachel's Introduction: "Having a law is one thing, its implementation is another. The precautionary principle has not been enforced, for example, on big projects like the Three Gorges dam on the Yangtze river in China, which has now been declared a disaster by the government."]
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By Vikram Soni and Sanjay Parikh
Several enlightened environmental principles have been drafted within the last three decades, from Stockholm (1972) to Rio (1992) to Bali (2007). There is the precautionary principle balancing human development with protection of the natural environment and valuable natural resources (have we really balanced it or have we created climate change?), the 'polluter pays' principle to repair any environmental damage caused by the polluter or industry (how do you repair the loss of a natural resource when the damage is irreversible?) and the principle of respecting carrying capacity (look at mega cities and mega dams including Delhi, Mexico City, Tokyo or Shanghai and the Three Gorges dam).

At Bali we were still struggling with the text on mitigating climate change. It is ironic that the world's biggest polluter, the United States, is the only country not to have made a written commitment to reduce greenhouse gas emissions. More so as it is the American lifestyle of conspicuous consumption that is driving climate change.

Clearly, declarations have not worked and it is too late to set general principles. The present contingency demands just one rule: keeping development away from irreplaceable natural resources like rivers, lakes, mountains and forests, for our survival and the survival of future generations.

Human rights and human survival

Human rights commissions are obligatory national and international vigilantes in all democracies. Human rights are about inequities between one set of human beings and another set. These can range from usurping the sovereign rights of one nation by another more powerful nation, to more local violations. They come up when the rich and powerful exploit the poor and disenfranchised. They reveal themselves in violence against women, violence against members of lower castes and creeds and other such instances. They are horrible acts and are often portrayed graphically.

But violations against nature too can be equally appalling, though they are often viewed through the filter of "environmental damage". The Stockholm Declaration accepts the environment as part of basic human rights -- the right to life itself.

The United Nations Millennium Report and the International Panel on Climate Change (IPCC) reports both indicate that 60% of the earth's ecosystems (land and water) are experiencing terminal loss. And this natural resource loss, be it of the Amazon forest, whales and sharks of the sea, elephants and tigers on land, rivers and lakes, glaciers on mountains, or aquifers below the ground, is strongly impacting human life.

Whereas human rights occupy centrestage and deal with human conflict, loss of natural resources threatens human survival itself. We must understand that the fundamental human rights on which human survival depends are nature's rights. Human rights for survival and for future generations are really nature's rights.

The subterfuge of language

Language is such a powerful medium of communication that it colours all our metaphors, beliefs and imagination. But language can also craft deception -- it can wash over commonsense and sensibility. This has happened in the present scenario of extreme material consumption powered by the global free market. Let us see how.

Whether it is government or courts or the global free market, the seductive vision of development has become so pre-emptive that the few remaining original forests, our biodiversity treasury, are being destroyed to make way for huge mines or dams or lucrative real estate projects. And we attempt to balance the destruction with "compensatory afforestation", words that suggest that whatever damage is being done can be undone or compensated by artificial plantation. To the unschooled and unsuspecting, this would appear to be a fair trade-off for development. But it is like giving sanction to the insane notion that it is okay to kill all wild tigers as long as we replace them by farming the same population in captivity. Can valuable natural biodiversity that has evolved over thousands of years ever be compensated? Such subterfuge finds acceptance by court and government and is often subsumed in the dangerous cliche "sustainable development". If sustainable development finishes off all our biodiversity, heritage and resources, is it admissible?

"Green buildings" is acceptable currency in the destruction of valuable heritage and resources. In the popular imagination, the word "green" is so comforting that it clouds the real loss, which is irreplaceable. So do modern terms like "eco-tourism" and "eco-friendly development", where the prefix "eco" works to trample the true value of the natural resource. Natural water resources are being exploited by commercial building activities for short-term profits; and there's the magical phrase "water harvesting". Apart from depleting an irreplaceable natural resource like a deep underground aquifer or a floodplain, it is a well-kept secret that water harvesting saves no more than a fraction of the original resource.

We have to remove the hypocrisy of these "green" cliches from our dictionary before such language seals our fate.

A Nature's Rights Commission

Having a law is one thing, its implementation is another. The precautionary principle has not been enforced, for example, on big projects like the Three Gorges dam on the Yangtze river in China, which has now been declared a disaster by the government. The Tehri dam on the Ganga, in a seismic Himalayan zone, and the Sardar Sarovar dam on the Narmada in India may follow suit.

Another notion is that poverty is itself a cause of pollution and that economic development will remove poverty and improve the environment. Poverty alleviation is often misused to justify development at the cost of environmental degradation. Let's see what is happening to people who have no link with the global economy but live simply amidst pure unpolluted streams, clean air and forests. The environment is what gives their life a quality that cannot be bought, and they have preserved it this way. Their simple lifestyle is non-invasive. But now this basic and essential resource is being whittled away by big companies that acquire huge swathes of virgin land for mining or "development", leaving these people mute and destitute.

In the present climate, when we have already lost over half our natural resources, it is evident that principles like 'the polluter pays', 'the precautionary principle' or 'sustainable development' do not work anymore -- we are well past the point of precaution -- and must be changed to stop further damage to resources that cannot be created by man.

Instead, we must have a Nature's Rights Commission made up of concerned citizens and scientists whose integrity is above any political and monetary affiliation. There is a precedent for this. The Israeli parliament -- the Knesset -- has set up the Israeli Commission for Future Generations as an inner-parliamentary entity. Its charter is to safeguard valuable natural heritage and natural resources. Its role is to oversee each legislative process, with special regard to long-term issues, and to prevent potentially damaging legislation from passage in the Knesset. This commission has been given the authority to initiate Bills that advance the interests of future generations.

We only need a simple law that provides absolute protection to all valuable natural resources, be it forests, rivers, aquifers or lakes. The law will be a public trust doctrine, which has its basis in the ancient belief that nature's laws impose certain conditions on human conduct in its relationship with nature. This relationship has to be kept in absolute trust. It was for this reason that, under Byzantine law, the concept of jus gentium, a law for all people and nations, was developed to protect nature's resources. Later, this led to the public trust doctrine in the Magna Carta of the 13th century. More recently, the Water Framework Directive of the European Union recognises natural water resources as a protected heritage.

(Vikram Soni is UGC Professor, National Physical Laboratory, New Delhi. Sanjay Parikh is an advocate with the Supreme Court of India, New Delhi)

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