Above: Protesters demonstrating against the practice of fracking and demanding that it be banned, in New York in October 2014/Photo: UNI
The Permanent Peoples’ Tribunal (PPT), a human rights institution established in 1979 and based in Italy, was asked to examine the extent to which the gas extraction technique of hydraulic fracturing (or fracking) impacts human rights and climate change. It conducted a session on “Human Rights, Fracking and Climate Change” last year and issued an advisory opinion on the issue. One of the members of the PPT panel who participated in this session was legal scholar and Professor of Law in Development at the University of Warwick, UK, Upendra Baxi from India. Excerpts from the paper:
As a 2016 survey of the scientific literature observed, the oil and gas industry, together with many members of the scientific community, generally use the term “fracking” as “shorthand for one particular type of well stimulation method”….
The fracking frontier is unusual in two respects. First, physically and technologically speaking, it is even more “extreme” than many other frontiers. Fracking targets sprawling, widely-distributed mineral formations that have never previously been subject to such thoroughgoing devastation, using new, extraordinarily resource-intensive forms of physical, chemical, hydrological, legal and cultural engineering.
Second, the fracking frontier is often more “granular” than linear, and can impinge on almost any type of landscape or ownership regime, urban and suburban as well as rural. One community may be disrupted by it, while an adjacent community partly escapes. Yet each point on this gigantic, scattered frontier must be connected to many other locations via pipelines, compressor stations, liquefaction plants, container ships and so forth. In the United States alone, there are already more than one million frack wells across the country from New York to California, occupying at the surface alone a land area more than three times the size of Yellowstone National Park, together with thousands of kilometres of new pipeline corridors. In Australia, too, the industry constitutes a vast “footprint rolling across groundwater-dependent ecosystems, agricultural land and people’s homes” alike….
One of the ways in which fracking affects the “entire Earth community to which humans belong” is through its contribution to climate change. Fracking is an important component of the growing threats to global agriculture, ocean and coastal ecosystems, and human and nonhuman health and welfare that stem from global warming. Accordingly, the climate effects of fracking are routinely left out of industry and official assessments of its negative effects, which typically do not include even such unsatisfactory surrogate descriptions of climate impacts as “social costs of carbon” and, again, treat “uncertain” as equivalent to “having no effect”….
The rights of nature are considered as ecological rights to differentiate them from environmental rights that stem from human rights. These ecological rights are oriented to protect vital cycles and different evolutionary processes, and not only threatened species or natural areas. They defend living systems, all forms of life, ecological cycles and rhythms. You can still eat meat, fish, or cereals, for instance, inasmuch there is a guarantee that ecosystems would still function with their native species. In this context, ecological justice aims at securing the persistence and survival of species and their ecosystems as a whole, as networks of life. Beyond compensation to humans for the environmental damage, what is proposed is a restoration of affected ecosystems. In concrete, two justice systems will have to be applied at the same time: environmental justice for people and ecological justice for nature. These are structurally and strategically bound together.
However, beyond a merely theoretical and academic approach, it should be noted that both in the history of human rights and in the more recent history of the development and acknowledgment of the rights of nature, it was the agency of movements, of social and political actors that has contributed and continues to contribute to its further refinement, recognition and to the establishment of new categories. It is a constituent process from below from which the rights of nature have emerged: from indigenous peoples that reject the commodification of their Mother Earth, to communities opposing extractivism that recognise that the mere anthropocentrical approach is leading to the destruction of planet Earth, we can therefore affirm that people are calling for the recognition of the rights of nature with all its political, cultural, social, economic and spiritual implications, as a fundamental element of the peoples’ rights. Without ecological justice there will be no social justice, and vice versa.
The shift from nature as an object to nature as a subject has begun. In reality, this vision has been present in the perception of indigenous peoples for a long time now. And in a powerful effort the rights of nature have been recognised for the first time in a constitution by the Constitutional Assembly of Montecristi in Ecuador in 2008. Bolivia then adopted a law on the rights of nature in 2010. Elsewhere in the world these examples have been followed. In November 2016, the Colombian Constitutional Court recognised similar rights to the Rio Atrato. The High Court of Uttarakhand in Nainital, Northern India, issued a verdict stating that the Ganges and Yamuna rivers are living entities and declaring the Himalayan mountain ranges, glaciers, rivers, streams, rivulets, lakes, jungles, air, forests, meadows, dales, wetlands, grasslands and springs “as the legal entity/ legal person/juristic person/juridicial person/moral person/artificial person for their survival, safety, sustenance and resurgence” and declaring “the entire animal kingdom including avian and aquatic […] as legal entities having a distinct persona with corresponding rights, duties and liabilities of a living person” (2018).
In March 2017, the Whanganui river in New Zealand was acknowledged as having to appeal to the court, through two of its representatives, one of the Whanganui iwi tribe and another from the Crown community. In 2013 the Te Urewera national park was recognised as a legal entity with the same rights of a person. Land has no owner. Rather it is managed by the Crowns and Tuhoe. We can also cite the Environmental Code of the Loyalty Islands Province, New Caledonia (2016); or the Yarra River Protection (Wilipgin Birrarung murron) Act, 2017, passed by the Victorian Parliament, in Australia. At the subnational level, the Tamaqua county in Pennsylvania was the first US municipality to approve a local ruling that recognises Nature’s right to exist, thrive and evolve. Since then as many as 36 communities in 7 US States (Pennsylvania, Ohio, New Mexico, New York, Maryland, New Hampshire and Maine) approved similar rulings that codify the rights to nature.
In Nepal, a process is underway to recognise the rights of nature through a Constitutional Amendment. On the other hand, a group of North American citizens filed a claim asking that the Rocky Mountains or the Nevada desert could sue individuals, corporations or state governments in the US.
The struggles for the rights of nature, in particular after the adoption of the Ecuadorean Constitution, increasingly assumes the universality of such rights. For instance, the Rights of Nature can be used as a tool to defend indigenous territories outside of Ecuador. In the case of the public claim aimed at stopping the construction of the Belo Monte Dam in Brazil, the Ecuadorean Constitution was taken as reference, while stressing that “it could be clearer and more proper to apply the rights of nature as regards the destruction of the Xingu territory”.
Many are the proposals aimed at universalising the rights of nature: for instance the Earth Charter—whose aim is that of offering a Great Charter or Planet’s Constitution—promoted within the UN system and its organisations since 2000, or the Universal Declaration of the Earth’s Rights, initiated by EnAct International, issue for quite some time, and has offered significant contributions.
In 2014 civil society organisations of all the continents convened the International Nature’s Rights Tribunal, that represents an ethical space for the realisation of these rights.
From the above, it is clear that the rights of nature are a global issue and the time has now come to promote the Universal Declaration of the Rights of Nature at the United Nations, on the basis of the proposal that was adopted in the Earth Summit of Tikipaya, Bolivia in 2010. Equally urgent is the establishment of an international tribunal that could judge environmental crimes against people and Nature, as also proposed in the course of the same Summit….
The way forward is the continuing struggle by the people from the bottom up, from the streets, in the media, throughout civil society and in the courts. To the extent that international agencies and legal instruments, state legislation and court decisions reflect the will of the people as demonstrated by resistance to the violations of State and non-State bodies, the rights of nature will be protected.