Only a few days after the Whanganui River case was decided, the Gangotri and Yamunotri glaciers in India were declared living entities by the Uttarakhand High Court. The two glaciers are considered sacred by the indigenous peoples and their acceptance as legal entities includes wide parts of the Himalayas and the rivers Ganga and Yamuna flowing out of the two glaciers in the Himalayas. On March 20 2017 the High Court declared “the Glaciers including Gangotri & Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests wetlands, grasslands, springs and waterfalls, legal entity/legal person/juristic person/juridical person/moral person/artificial person having the status of a legal person, with all corresponding rights, duties and liabilities of a living person, in order to preserve and conserve them. They are also accorded the rights akin to fundamental rights/legal rights” (Margil 2017).
I want to address this last case study from a methodological point of view because its shows several interesting features of the Rights of Nature debate. I will outline again the pragmatic dimension on a local level, as well as the connection to climate change issues on the global level. Another reason for engaging with this case is the elaborated argument about rights subjectivity, made by the judges, that entails as well a concept of Stewardship.
Two Outstanding Judges and the Climate Change—Connecting the Global and the Local
The judges main reason must have been the aim of securing the very existence of the Glaciers and the related rivers endangered by global warming, climate change and pollution. In India, most of the rivers are polluted by urban settlements, farming pesticides and industrial effluents freely flowing into the water, despite stringent laws. The two judges Rajiv Sharma and Alok Singh made the following argument: “The past generations have handed over the ‘Mother Earth’ to us in its pristine glory and we are morally bound to hand over the same Mother Earth to the next generation” (Jagati 2017).
On the basis of the biographies of the justices Rajiv Sharma and Alok Singh, who were responsible for declaring Ganga and Yamuna living entities, the Hindustan Times journalist Anupam Trivedi calls them “environment crusaders” (Trivedi 2017). Both judges started their careers in 1982 and we know about their strict environmental policy from 2016 on. In November 2016 they opposed glacier taxes for tourists. One day before declaring the glaciers legal entities, they called the Uttarakhand Pollution Control Board to blame hotels, ashrams and industrial units for wasting the Ganga River. I am not sure if “environment crusaders” is the right expression to frame the engagement of the two judges. It certainly seems as though they are critical of mass tourism, as can be highlighted in another case from November 2016, in which they banned liquor in three districts, most probably in order to protect traditional shrines from being misused.
One could easily argue that it just takes regional conflicts, like it was the case in the two previous examples of Ecuador and New Zealand, and ambitious justices to promote the Rights of Nature as a means of individual interests. I think one cannot deny this strategic dimension of the attribution of rights, but two points are more interesting for my own argument. On the one hand the use of the language of Rights of Nature might be strategically motivated, but the language itself is not a utilitarian one. On the other hand the cases, however delicate they might be, do show clearly that Rights of Nature went from utopia to reality in the sense that they are de facto accepted by an ordinary institution of modern nation states.
My argument in the remainder of the text will be that both, the non-utilitarian character of individual rights as well as the acceptability of such a language, are creating a normative surplus in order to confront universal problems like global warming and climate change. The idea of a normative surplus expresses the notion that rights possess their own conceptual sphere of normativity. Once they are acknowledged they create obligations and opportunities that are not anymore identical with concrete political or economical interests that might have motivated their very acceptance in the first place. This notion of Rights is similar to Ronald Dworkins conception of individual rights as “political trumps” (Dworkin 1977: XI).
One important source to justify the Rights of the Glaciers is a report the NASA Earth Observatory gave in 2001. To highlight the shrinking of the Gangotri Glacier the scientists argued: “Currently 30.2 km long and between 0.5 and 2.5 km wide, Gangotri glacier is one of the largest in the Himalaya. Gangotri has been receding since 1780, although studies show its retreat quickened after 1971. […] Over the last 25 years, Gangotri glacier has retreated more than 850 m, with a recession of 76 m from 1996 to 1999 alone” (NASA 2001).
The NGO Community Environmental Legal Defense Fund (CELDF) which assisted Ecuador and more than 30 communities in the United States in advancing the Rights of Nature into law, considers the case of the Indian glaciers as an important step forward for the growing Rights of Nature movement. The director of the institution Mari Margil stated that “In declaring that ecosystems are persons, the High Court is recognizing that nature is capable of having rights. This is a critical step forward to transforming nature from being considered property under the law, to being recognized as possessing inherent rights as healthy, natural ecosystems.” The Rights of Nature are seen as necessary to secure the ability of ecosystems to remain healthy and thrive. According to this position, ecosystems should not only be considered as available resources for human use but as living entities with inherent rights. Following activists like Marit Margil: “The collapse of ecosystems and species, as well as the acceleration of climate change, are clear indications that a fundamental change in the relationship between humankind and the natural world is necessary” (Margil 2017). The argument for the inherence of rights can—as we already saw in the cases of Ecuador and New Zealand—be provided by an indigenous cosmovision. The need to change our relation to nature as argued by theorists of global climate change and the earth-system analyses is another way to justify it. This second type of argumentation can be seen most clearly in the example of India we are currently dealing with.
In addition to the strong influence of local indigenous rights movements that defend natural features in order to process their cultural self determination, the case of the glaciers Gangotri and Yamunotri clearly relates to worldwide problems like global warming and humanly caused climate change. The glaciers are not only important for the fresh water supply of the Indian people and the indigenous culture of various tribes, they are also seen as a symbol for global climate problems in general. Studies like the one mentioned above from the NASA Earth Observation are showing the importance of the glaciers both as indicators of climate change and as environmental features to prevent dysfunctions of local, regional and global ecosystems. The science discourse about climate change and possible ways to slow down or even stop global warming is amplified by the engagement of transnational NGOs like the Community Environmental Legal Defense Fund (CELDF). They contribute the idea of nature as a legal entity as a normative tool to solve environmental problems.
Understanding Mixed Motives and the Character of Rights and Stewardship
To deepen our understanding of the concepts of Stewardship, Rights of Nature and the relation between both concepts, it is necessary to deal with the specific argumentation of the judges. In the following passage I will analyses the two most important reports of the debate. The High Court of Uttarakhand at Nainital dealt with the Writ Petition (PIL) No. 126 of 2014 on March 20, 2017 (High Court of Uttarakhand at Nainital 2017a) and the Writ Petition (PIL) No.140 of 2015 on March 30, 2017 (High Court of Uttarakhand at Nainital 2017b). Both minutes do contain on 78 pages vast references to international environmental law, political and ecological issues of the Himalaya regions, religious insights of Hindu people as well as transcultural notes about political and environmental initiatives.
The character of my analyses is a discursive one that focuses on the ethical and scientific narratives employed by the judges to make their juridical argument work. I am less interested in the juridical details of the procedures as such. In the first subsection I argue that the multiplicity of sources and perspectives involved in the argumentation of the judges can be interpreted as a type of border thinking. In the second subsection I want to show the detailed understanding of the term juristic person that the judges apply and of the proposed concept of Stewardship.
Both cases explicitly draw on Hinduism to support the sacred status of the Ganges and Yamuna rivers. At the same time, the description of a juristic person is deeply rooted in European Western modernity. Therefore the two analysed texts can be located “at the intersection of the sacred and the legal” as Erin O’Donnell, a specialist of Environmental Law from the University of Melbourne has been arguing. Following this insight, we should draw attention to the way in which the combination of indigenous knowledge and modern rights language is articulated, since it can be said that these judgments “present powerful examples of the increasing relevance of rights-centred environmental protection” (O’Donnell 2017: 137).
On March 20, the judges stated: “Rivers Ganges and Yamuna are worshipped by Hindus. These rivers are very sacred and revered. The Hindus have a deep spiritual connection with Rivers Ganges and Yamuna. According to Hindu beliefs, a dip in River Ganga can wash away all the sins. The Ganga is also called ‘Ganga Maa’. It finds mentioned in ancient Hindu scriptures including ‘Rigveda’” (High Court of Uttarakhand at Nainital 2017a: 4).
It’s typical of that case that the traditionalist position is supplemented by statistical and scientific knowledge. The judges refer to the NASA material that we cite in the previous section of this paper: “Gangotri Glacier is situated in District Uttarakashi of the State of Uttarakhand. It is 330.2 kilometres long and between 0.5 and 2.0 km wide. It is one of the largest Glaciers in the Himalayas. However, it is receding since 1780. The receding is quick after 1971. According to the images of NASA, over the last 25 years, Gangotri glacier has retreated more than 850 meters, with a recession of 76 m from 1996 to 1999 alone. River Ganga originates from Gangotri Glacier” (High Court of Uttarakhand at Nainital 2017a: 5).
The textual analysis presents strong evidence that scientific as well as religious arguments seem to be equivalent for the judges, since they decided to express the local religious importance of the rivers and the function of this area for the planets ecosystem in one single sentence: “Both Ganga and Yamuna Rivers are revered as deities by Hindus. Glacial Ice is the largest reservoir of fresh water on earth” (6, 30 March 2017).
I would like to make two points here: Firstly, the judges are arguing in an in-between space to create a hybrid document. Since they refer to legal and religious structures at the same time, their narration represents a kind of border thinking (Anzaldúa 1987; Mignolo 2012) drawing from very different kinds of sources that on the first glance might seem to be incompatible or even contradictory. Acknowledging this, we can further observe that they not only cross the border of the science versus religion dichotomy. We can at the very least add the dimensions local versus global, modern vs. traditional, and holism versus individualism. The judges are referring their findings to a wide range of authors and positions, they mention the importance of trees from the Indian Mythology and in the religious life of indigenous people from different countries. Another topic is the role of globalization, the position of the poor countries, as well as a critique of developmentalism as such.
The Kenyan Environmentalist and Alternative Nobel Prize Winner of 2004, Sri Wangari Muta Maathai is cited with the following words: “To a very large extent, I think, globalization is a threat to the environment in countries that are not developed industrially, in countries that are poor, because these countries are looking towards globalization as an answer, and believe that corporations will get them out of poverty. Very often, these corporations simply do business, take their profits and go- leaving their problems behind. I want to say to them that unless we can appreciate that the planet is very small, that part of the problem is that you think you are doing something to a distant person, a different part of the world. But it will eventually come back to you. We must expand our concept of home, to make sure we see beyond our individual countries. The very first astronauts told us that they were overwhelmed by the fact that they could not see boundaries, and they felt a strong urge to come back home. Home was that small blue ball we’ve become familiar with on television, a small ball beyond borders. The whole planet is our concern, wherever we are. They are little things we can do in our lives, we can listen, we can consume less, because this is the only home we have, and we should leave it clean and green for future generations” (High Court of Uttarakhand at Nainital 2017b: 7).
The overall picture is completed by arguments about biodiversity and concrete conservation strategies for the alpine zone of the Himalaya. The biological statements about the ecosystem do mention the role of special components and species as well as their way of functioning together (High Court of Uttarakhand at Nainital 2017b: 11–17). Another important type of reference is the declarations of international environmental law involving also documents from the United Nations. These declarations are cited at the length (High Court of Uttarakhand at Nainital 2017b: 17–26). The so-called Stockholm Declaration (United Nations 1972) marks the kick off of the common globalized environmental policy. Other important steps are Resolution 37/7 of the UN General Assembly from 1982 which includes a World Charter for Nature and of course the Rio Declaration from 1992.
The trade and exploitation of species of wild fauna and flora is another topic addressed by judges. Particularly interesting is the Chipko Movememt from the 1970s. The movement from Uttarakhand gained world wide attention when mostly women started embracing trees to stop the deforestation. The non-violent movement was also inspired by Mahatma Gandhi and got its name from the hindi word “chipko” that means to “hold” or to “keep” something. The role of indigenous knowledge as well as the factor of social movements launching for world wide visibility show a clear resemblance to the investigated cases in Ecuador and New Zealand.
Besides this connection of the movement to global environmentalism activities, it contains moreover a very specific reference to Buddhism, translated by the judges into a political community of the non-human: “The trees in India are worshipped as incarnations of the goddess […]. The goddess of the forest, Aranyi, has inspired a whole body of texts, known as ‘Aranyi Sanskriti’. It means, “the Civilisation of Forest”. The metaphoric political body related to the religious sacrification of trees is then translated into the language of rights: “Trees and wild animals have natural fundamental rights to survive in their natural own habitat and healthy environment” (High Court of Uttarakhand at Nainital 2017b: 41).
Juristic Person and Stewardship
In the statement from March 20, 2017 the Judges argue for what we can call the contingency of juridical personhood: “The very words “Juristic Person” connote recognition of an entity to be in law a person which otherwise it is not. In other words, it is not an individual natural person but an artificially created person which is to be recognised to be in law as such“(High Court of Uttarakhand at Nainital 2017a: 7). They follow historical examples to show that the term “person” is not necessarily congruent with the category “human being”, since for instance slaves in ancient European times did not have the status of persons. The judges highlight a few historical evidences for this argument i.e., the distinction of “natural person” and “legal person” in the Roman law as well as the the introduction of cooperations as “artificial persons” that are nevertheless treated as “legal persons”. Consequently, the judges opt for a concept of legal personhood that does not derive from “natural” capacities like the freedom of the will, the ability to reason or to speak. The refutation of the internalist strategy to bound subjective rights to facilities of the (human) is completed by the externalist strategy that refers to the legal structure as a frame of definition: “We may, therefore, define a person for the purpose of jurisprudence as any entity (not necessarily a human being) to which rights or duties may be attributed” (High Court of Uttarakhand at Nainital 2017a: 9).
Two important points for our discussion of the Rights of Nature are following for the judges: On the one hand, stewardship is a very common way to deal with the rights and duties of legal persons that cannot stand for themselves. Children and artificial persons are the standard examples to claim the necessity of stewardship. On the other hand, the judges are making a utilitarian and therefore anthropocentric claim about the Rights of Nature. “A juristic person can be any subject matter other than a human being to which the law attributes personality for good and sufficient reasons. Juristic persons being the arbitrary creations of law, as many kinds of juristic persons have been created by law as the society required for its development” (High Court of Uttarakhand at Nainital 2017a: 10–11). What the judges have in mind is a progressist argument, namely, that the attribution of rights follows the requirement of social evolution. Nevertheless there remains the necessity to identify “good and sufficient” reasons to introduce new rights bearers into the legal context.
Consequently, the spiritual and physical contributions of the rivers for society are reiterated. Since they are important for Indian people, they should be protected. Interestingly, the judges do not see a contradiction between what has been called anthropocentrism and biocentrism.Footnote 4 In order to serve the societies’ interests best, a fully fledget legal status should be attributed to the rivers. Justifying human stewardship for the planet according to the judges means giving reasons in the interest of human beings by not making human interests the reason of the justification. In other words: Considering nature or certain features of the ecosystems as subjects of rights they are withdrawn from the immediate and absolute disposal of human beings in order to fulfil goals of the society that can be justified with “good and sufficient reasons”. In the case of India the recognition of the worldview of Hindu people as well as ecological arguments for the functioning of ecosystems are seen as “good and sufficient reasons”.