27 Nov Finding the Human-Nature Equilibrium: A Reply to Nivia
[Rafsi Albar is an undergraduate student, teaching assistant, and researcher at the Faculty of Law, Universitas Gadjah Mada, Indonesia. He is an editor at Juris Gentium Law Review, the country’s foremost student-run publication.]
A few days ago, Opinio Juris published a post by a dear colleague of mine, Nivia. There, she addressed how my proposition on the use of a New Haven approach in determining states’ obligations in respect of climate change does not provide sufficient due regard to the interest of nature. She posited two premises: 1) that anthropocentrism is a hollow concept that essentially man’s greed above nature’s longevity, and 2) that a North-South dichotomy does not hold water by virtue of the global economy’s dynamism which, among other things, render ideas like nationally determined contributions (NDCs) practically redundant.
The purpose of this writing is to address the first of the two claims. I believe it is crucial to point out a few things that had been overlooked in the construction of her arguments. This writing at least serves to remind the readers of some fundamental suppositions in international environmental law (IEL) which, as a byproduct, help to answer the latter concern and even more. As someone whose works revolve around human rights, my aim here is not to defend anthropocentrism at all cost but rather to 1) acknowledge the gaps that exist between the human-centred and nature-centred logics, and then 2) redirect the discourse to a more productive path. In so doing, I will invoke and contextualise the learnings from one of Tim Hayward’s monumental pieces, “Anthropocentrism: A Misunderstood Problem,” into two main layers of argumentation.
Intergenerational Equity: An Inalienable Concept in IEL
Perhaps one of the most repeatedly said jargon in IEL is the intergenerational equity. Its paramount importance, which can be traced back to the 1972 UN Conference on the Human Environment in Stockholm and more formally later in the 1987 Brundtland Report, is a result of mankind’s collective realisation after decades of high-speed race to exploit whatever can be found in nature. More than just a concept for policy-making, the idea of preserving nature for our children and grandchildren is, by broad definition, anthropocentric. The idea of putting humans first is not something that should be seen narrowly such that it seems to be a narrative of greed. While it is true that some who benefit —in economic terms—from unlimited pursuits of exploitation would advocate for as much leeway as possible, one may not and must not turn a blind eye to the fact that we have made progress over the years in ensuring the broader objective of inheriting a world with a similar or even better condition than the one we were born into.
Bridges have been made between IEL and the international human rights regime—which mainly acts as a vessel for anthropocentrism—both by instruments more closely tied to the prior and the latter. The 2007 UN Declaration on the Rights of Indigenous Peoples stipulates in Article 25 that indigenous people “have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations.” This is significant for a couple of reasons. First, it recognizes the intersectional character of not just humans and the environment but culture as well. Second, it accords this nuanced relationship a framework for co-creation to attempt to preserve what we have for future generations. On the other hand, the 1998 Aarhus Convention enshrines the need and ways for the public to be involved in matters pertaining to the environment.
The same sentiment has been displayed by jurists globally, from domestic to international levels. To start with, study has shown that 74% of constitutions provide some form of protection for the intergenerational right to a healthy environment. The Inter-American Court of Human Rights, in Advisory Opinion (OC-23/17), not only concedes with the UN in seeing the matter as a cross-age issue (see Paragraphs 53 and 59) but also explicitly draws the correlation between the natural environment and the upholding of human rights, today and tomorrow. To these ends, a conversation on the case in point (i.e. climate change) necessitates a similarly holistic viewpoint at the foremost.
Survival as a Common Intragenerational Motivation
If, under any circumstance or for any reason, the intergenerationality argument does not suffice, the second should be able to do the convincing as it appeals to our fundamental need: survival. Even when putting the interest of future generations aside, our very own egotistical tendencies would direct us to endeavour saving our planet. In simple terms, the first requirement for economic exploitation is the existence of humans and nature. This is where one of the arguably most overused terms in our time comes into play: sustainable development.
The 1982 UN Convention on the Law of the Sea is arguably the most comprehensive when it comes to the basics of sustainable development as in addition to a section for conservation of the high seas (Part VII, Section 2), the entire text embodies a collective spirit upon which modern ideals of sustainability, like that codified by the 1992 Rio Declaration, are built. UNCLOS and the treaties under its regime all share the same remarkable trait; they open the widest doors of opportunity for parties wishing to reap economic benefits from the sea so long as they stick within certain boundaries that stem from the common heritage of mankind (CHM) principle. Despite its abstract quality, CHM chiefly proffers a situation for everyone to come together and make use of what we have in order to govern resources so as to prevent us from coming to a tragedy of the commons. In a sense, economic maths even encourages stakeholders to act ‘rationally’ by not being as short-sighted as sceptics think they are.
Indeed, it is important to note that one may not presume that every actor would act in certain ways deemed ideal, especially not when interests clash. Alas, case laws again come in handy to provide a sense of where the line is drawn. Drawing upon precedents mentioned in my original article, the Pulp Mills and Gabčíkovo-Nagymaros cases respectively demonstrate that compliance with legal obligations like performing adequate assessments by, for example, leveraging scientific knowledge would minimise the potential for misconduct or mishaps. As such, the question to be answered in this regard is what sorts of incentives and disincentives should be given to ensure that expectations are lived up to.
Building a Productive Discourse
“Earth provides enough to satisfy every man’s needs, but not every man’s greed.”
The quote by Gandhi is one that serves as a strong reminder of how we, humans, are born with the innate proclivity to fulfil our desires in whatever ways, including destructive ones. Continuing to debate which one of anthropocentrism or ecocentrism is inherently better is rather pointless. There can be arguments made for both sides, and there is not a single correct way to answer this perennial question. I concur with Nivia in that being too focused on satisfying human needs is dangerous, but I would not go as far as to say that it is an outdated concept that should be brushed off in the name of preservation. Instead of asking if human interest should be taken into consideration when thinking of states’ climate change obligations (or anything to do with the environment for that matter), we should be thinking about how it should be incorporated into the larger scheme of things.