state:hood

Nitin Sawnhey, Homelands

Michelle Staggs Kelsall on Dis:Order

In 2017, the Special Rapporteur on human rights and the environment, David Boyd, remarked with a fervour that matched the gravity of his message:

“Today’s dominant culture and the legal system that supports it are self-destructive. We need a new approach rooted in ecology and ethics […] We are part of nature: not independent, but interdependent.”

Boyd’s statements are noteworthy in that environmental laws today are largely anthropocentric – they favour nature only to the extent that human beings benefit from it. In this piece,  I argue that ecocentrism is not the mere antithesis of anthropocentrism; it is an exercise wherein one looks at laws protecting the environment as more than merely serving human needs.

This analysis is directed at the need to (dis)order international law by shifting liberal internationalism from primarily anthropocentric to ecocentric. In re-aligning state consciousness, it furthers approaches wherein one conceives the environment as a harmonious relationship between its various constitutive objects. It goes beyond a utilitarian outlook towards nature to one which perceives the existence of nature as not only an interdependent entity with humans but also as an entity independent from human beings; one that merits equal care.

In proposing this new conception, I use an ecofeminist lens to reconceive the relationship between different elements of the environment. Borrowing from Kelsall’s critique (Kelsall, p. 729) of the liberal international order, this reflection proposes an approach that decentres States from their position as the primary actors in international law. With this approach, international law must include a plethora of other actors, including indigenous communities, non-state actors, and organisations that contribute to the existence of the environment as a collective entity in the decision-making process.

State Supremacy and the Other Hierarchies Sustaining Environmental Exploitation

Environmental exploitation must be contextualised through the lens of imperialism, colonialism, and the numerous forms of othering that operate to sustain it. This contextualisation is reflected in ecofeminist theory. Ecofeminism argues that the exploitation of the environment is characterised by patterns of inter-species discrimination and oppression entrenched in hierarchies within international law; wherein firstly, the State and its citizens are at the apex and, secondly, there exists a dichotomy between ‘human’ and ‘nature’ within the State itself. There is little doubt that States illustrate anthropocentrism in the reproduction of ingrained schemes of subordination. States are an institutional structure that orders this understanding of the environment vis-a-vis humans, positing a hierarchy wherein the environment is often othered. For instance, the World Charter for Nature of the United Nations General Assembly, which advocates for the non-wasteful use of natural resources, observes in its introduction that humanity benefits from healthy ecological processes and biological diversity. Furthermore, the Paris Agreement, too, at its heart, is a primarily anthropocentric endeavour, in that it primarily concerns the rights of humankind. The current framework fails to fathom harm to the environment as one separate from harm to the State.

During COP-26, the imagery of Tuvalu’s foreign minister Simon Kofe, who addressed the United Nations climate conference in Glasgow from a waterlogged podium, is acute: climate change is sinking multiple island nations whose economies run on sectors threatened by environmental destruction such as tourism, agriculture, and fishing. These threats, however, are not a mere geographical happenstance; rather, they result from historical antecedents inseparable from their contemporary unequal social hierarchies, reflecting hierarchies within states as well. This imagery is noteworthy, given that it is the COP that has championed the Paris Agreement Rulebook, which gave birth to the concept of Nationally Determined Contributions (‘NDCs’). Reproducing hierarchies on a national level, the COP continues to further the supremacy of the State; these contributions allow individual countries to outline their climate ambitions. Although the Paris Agreement specifically provides for a forum for the participation of indigenous communities via its NDCs –   the inclusion of indigenous peoples continues to depend on the will of State actors. This, in turn, implies that the people who have been most affected continue to be ignored and silenced by state actors.

I do not, however, wish to recentre the legal limbo surrounding nature by merely decentring States and humans. In fact, this may be quixotic, considering that States and (many) humans have been the cause of ongoing environmental disasters. Right from the devastating impacts of the United States in Operation Ranch Hand to the unheeding actions of the Russian Government in their destruction of Ukraine’s landscape with their seizure of the Zaporizhzhia Nuclear Power Plant and destruction of the Nova Kakhovka Dam—States have for long posed risks of long-term environmental catastrophe. Thus, an approach that merely decentres them from the discussion would be counter-productive to the broader aim of ecocentric policy-making. An ecocentric approach must rather entail that anthropocentric policy-making strives to reorient itself to a common end, one which guarantees environmental integrity. It conceives the environment as one of which humans constitute an integral, although not principal, element.

Rethinking Ecocentric Policy Making

Anthropocentric biases are visible within ostensibly ecocentric laws as well. For instance, ecocide is often conceived to be the first ‘non-anthropocentric’ international wrong. The proposed definition of the crime outlaws “severe and either widespread or long-term damage to the environment” if the act is unlawful within the domestic or international realm. For lawful acts that may nevertheless cause “severe and either widespread or long-term damage to the environment.”, the Independent Expert Panel adds another standard. It is that these acts must be further committed with a reckless disregard for the environment (in excess of the social and economic benefits anticipated). Thus, as Romina Pezzot previously argued, the definition of ecocide adds an anthropocentric balancing test, wherein even wanton environmentally destructive acts –  ones which meet the threshold of severe, widespread, and long-term environmental damage – would be lawful as long as they are lawful within the State—an easy endeavour, given the current anthropocentric biases that guide State policy.

The 2017 Whanganui Agreement shows that ecocentric perspectives are not unfathomable from an international law standpoint. Recognising the rights of nature, this agreement effected the demands of a successful petition brought by the Maori people in domestic courts for recognising the rights of rivers. Similarly, in Colombia, under its Jurisdicción Especial para la Paz (peace jurisdiction), the Colombian Transitional Tribunal recently recognised that the Katsa Su and Cxhab Wala Kile territories, belonging to the indigenous Awá and Nasa peoples, have been victims of the Colombian civil war. In delivering this decision, the Tribunal further granted participation to indigenous communities, guided by the rights of the natural object and not the human property interests.

Furthering this stance in an international justice setting, the Inter-American Court of Human Rights held that the right to a healthy environment exists irrespective of the effects of degradation on human beings.  The court went on to order specific measures of reparation for the restitution of the environment, including actions for access to adequate food and water, and for the recovery of forest resources and indigenous culture.

These precedents highlight an ecocentric approach by contributing to disrupting patterns of oppression within the relationship between human beings and nature. Not only do they lead to a reappraisal of traditional ideas of who constitutes an actor under international law; they also pave the way toward a better understanding of reparations and restorations to those affected, for instance, indigenous communities. However, these decisions remain an anomaly; most of the celebrated environmental laws today still offer piecemeal redressal at best.

Anthropocentrism in Environment and Security Studies

Climate Change today is also a threat multiplier. Since 1990, at least eighteen violent conflicts have been fueled by the exploitation of natural resources. In Sierra Leone, diamonds triggered the war between 1991 and 1999, claiming over 75,000 lives, causing 500,000 Sierra Leoneans to become refugees, and displacing more than half the country’s population. In fact, research suggests that over the last sixty years at least forty per cent of all intra-state conflicts have a link to natural resources. While environmental factors are rarely, if ever, the sole cause of violent conflict, the exploitation of natural resources and related environmental stresses can be implicated in all phases of the conflict cycle; from contributing to the outbreak and perpetuation of violence, to undermining prospects for peace.

In a growing body of jurisprudence on environment law and security, many scholars argue that governance systems comprise several overlapping and mutually influencing spheres operating at varying spatial and temporal dimensions. Contemporary scholars, for instance, study how social instability and economic deficits may contribute to environmental deterioration.

In Closing: Leaving You at the Starting Point

Today, the critique of environment law is largely based on a pre-existing ‘inductive protocol’. (Kelsall, p. 734)— one in which the environment is often othered. The thrust of this piece urges the reader to rethink celebrated piecemeal environmental policy making. It questions policies that originate from the acquiescing to the sovereignty of the State, leaving out key stakeholders. It is thus pertinent for States to (re)conceive environmental policy-making through an ecocentric lens, to question our anthropocentric biases that have historically excluded communities from deliberations and other processes central to their sustenance.

An application of this argument would recognise the diversity of the participants affected by climate change, and the disparate experiences in affected communities. It would further rethink the primacy of the State and advance the participation of key stakeholders in the political processes which create and guide environmental policy making. Kelsall’s critique invites formulating a new conception of the liberal international order to question the implicit biases and tacit agreements that guide our conceptualisation of the law as it exists today. It is here I believe that the starting point to addressing the climate crisis lies.