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Environmental law and the dharmic principle

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RG_tree_om_blog_20160829The recent history of “global” approaches to the environment has shown that they began full of contradictions and misunderstandings, which have continued to proliferate under a veneer of internationalisation. To provide but a very brief roster, there was in the 1970s the “Club of Rome” reports, as well as the United Nations Conference on Human Environment in 1972 (which produced the so-called Stockholm Declaration). In 1992, the UN Conference on Environment and Development (Rio de Janeiro) was held and was pompously called the “Earth Summit,” where something called a “global community” adopted an “Agenda 21.” With very much less fanfare also in 1992 came the Convention on Biological Diversity, and signing countries were obliged to “conserve and sustainably manage their biological resources through global agreement,” an operational conundrum when said resources are national and not international.

In 2000 came the “Millennium Summit,” at which were unveiled the Millennium Development Goals, which successfully incubated the industry of international development but had almost nothing to do with the mundane practice of local development. In 2015 came the UN Sustainable Development Summit, which released a shinier, heftier, more thrillingly complex list of sustainable development goals. During the years in between, the UN Framework Convention on Climate Change and its associated satellite meetings (three or four a year) spun through every calendar year like a merry-go-round (it is 22 years old, and the very global CO2 measure for PPM, or parts per million, has crossed 400).

The visarjan (immersion) of Shri Ganesh. The idol is accompanied by huge crowds in Mumbai. Photo: All India Radio

The visarjan (immersion) of Shri Ganesh. The idol is accompanied by huge crowds in Mumbai. Photo: All India Radio

Looking back at some five decades of internationalisation as a means to some sort of sensible stock-taking of the connection between the behaviors of societies (ever more homogenous) and the effects of those behaviors upon nature and environment, I think it has been an expensive, verbose, distracting, and inconclusive engagement (but not for the bureaucratic class it sustains, and the “global development” financiers, of course). That is why I find seeking some consensus between countries and between cultures on “ecocide” is rather a nonstarter. There are many differences about meaning, as there should be if there are living cultures left amongst us.

Even before you approach such an idea (not that it should be approached as an idea that distinguishes a more “advanced” society from one apparently less so), there are other ideas, which from some points of view are more deserving of our attention, which have remained inconclusive internationally and even nationally for fifty years and more. Some of these ideas are, what is poverty, and how do we say a family is poor or not? What is economy and how can our community distinguish economic activity from other kinds of activity (and why should we in the first place)? What is “education,” and what is “progress”-and whose ideas about these things matter other than our own?

That is why even though it may be academically appealing to consider what ecocide may entail and how to deal with it, I think it will continue to be subservient to several other very pressing concerns, for very good reasons. Nonetheless, there have in the very recent past been some efforts, and some signal successes too, in the area of finding evidence and intent about a crime against nature or, from a standpoint that has nothing whatsoever to do with law and jurisprudence, against the natural order (which we ought to observe but for shabby reasons of economics, career, standard of living, etc., do not).

Clay cooking pots and decorative terracotta. A craftsman and his wares at a weekly market in Kerala.

Clay cooking pots and decorative terracotta. A craftsman and his wares at a weekly market in Kerala.

These efforts include Bolivia’s Law of the Rights of Mother Earth, whose elaborate elucidation in 2010 gave environmentalists much to cheer about. They also include the recognition by the UN Environment Programme, in incremental doses and as a carefully measured response to literally mountainous evidence, of environmental crime. This is what the UNEP now says, “A broad understanding of environmental crime includes threat finance from exploitation of natural resources such as minerals, oil, timber, charcoal, marine resources, financial crimes in natural resources, laundering, tax fraud and illegal trade in hazardous waste and chemicals, as well as the environmental impacts of illegal exploitation and extraction of natural resources.”  Quite frank, I would say, and unusually so for a UN agency.

Moreover, there is the Monsanto Tribunal, which is described as an international civil society initiative to hold Monsanto-the producer of genetically modified (GM) seed, and in many eyes the most despised corporation ever-“accountable for human rights violations, for crimes against humanity, and for ecocide.” In the tribunal’s description of its rationale, ecocide is explicitly mentioned, and the tribunal intends to follow procedures of the International Court of Justice. It is no surprise that Monsanto (together with corporations like Syngenta, Dow, Bayer, and DuPont) is the symbol of industrial agriculture whose object and methods advance any definition of ecocide, country by country.

This ecocidal corporation (whose stock is traded on all major stock markets, which couldn’t care less about the tribunal) is responsible for extinguishing entire species and causing the decline of biodiversity wherever its products are used, for the depletion of soil fertility and of water resources, and for causing an unknown (but certainly very large) number of smallholder farming families to exit farming and usually their land, therefore also exiting the locale in which bodies of traditional knowledge found expression.  Likewise, there is the group of Filipino investigators, a Commission on Human Rights, who want forty-seven corporate polluters to answer allegations of human rights abuses, with the polluters being fossil fuel and cement companies, including ExxonMobil, Chevron, and BP, and the allegations include the roles of these corporations’ products in causing both “global warming and the harm that follows.”

A 'gudi' and 'bhagwa dhvaj' hoisted by a home in Goa for Gudi Padwa, the festival which marks the beginning of the new year.

A ‘gudi’ and ‘bhagwa dhvaj’ hoisted by a home in Goa for Gudi Padwa, the festival which marks the beginning of the new year.

Such examples show that there is a fairly strong and active manifestation of the movement to recognise ecocide as a crime under international law. However, to find such manifestations, one has to look at the local level. There, the questions pertain more tangibly to the who, what, and how of the ecological or environmental transgression, and the how much of punishment becomes more readily quantifiable (we must see what forms of punishment or reparation are contained in the judgments of the Monsanto Tribunal and the Philippines Commission).

Considering such views, the problem becomes more immediate but also more of a problem-the products of industrialised, mechanised agriculture that is decontextualised from culture and community exists and are sold and bought because of the manner in which societies sustain themselves, consciously or not. It is easier to find evidence for, and easier to frame a prosecution or, the illegality of a corporation, or of an industry, than for the negligence of a community which consumes their products. So the internationalisation (or globalisation) of the idea of ecocide may take shape in a bubble of case law prose and citations from intergovernmental treaties but will be unintelligible to district administrators and councils of village elders.

My view is that searching for the concept which for the sake of semantic convenience we have called ecocide as an outcome of an “internationally agreed” idea of crime and punishment will ultimately not help us. I have such a view because of a cultural upbringing in a Hindu civilisation, of which I am a part, and in which there exists an all-embracing concept, “dharma,” that occupies the whole spectrum of moral, religious, customary, and legal rules. In this view, right conduct is required at every level (and dominates its judicial process too), with our literature on the subject being truly voluminous (including sacred texts themselves, the upanishads, various puranas, and works on dharma).

Perhaps the best known to the West from amongst this corpus is the Arthashastra of Kautilya, a remarkable legal treatise dealing with royal duties which contains a fine degree of detail about the duties of kings (which may today be read as “governance”). This treatise includes the protection of canals, lakes, and rivers; the regulation of mines (the BCE analogue of the extractive industries that plague us today); and the conservation of forests. My preference is for the subject of ecocide and its treatment to be subsumed into the cultural foundation where it is to be considered for, when compared with how my culture and others have treated the nature-human question, it becomes evident that we today are not the most competent arbiters, when considering time frames over many generations, about how to define or address such matters. The insistence on “globalising” views in fact shows why not.

(This comment has been posted at the Great Transition Initiative in reply to an essay titled ‘Against Ecocide: Legal Protection for Earth’.)

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