When Rachel Carson published Silent Spring in 1962, her words, with their graphic warnings about pesticides, gave rise to a new environmental consciousness that still hadn’t reached my corner of London by the mid-1970s, when I was a schoolboy. We learnt how to dissect the eye of a lamb but nothing of the human’s relationship to the natural world. Nor had the new consciousness filtered into mainstream teaching when I was a law student, with no environmental courses on offer even as the Earth’s ozone layer thinned and new global rules were proclaimed to protect the world’s oceans.
For international law, which was beginning to give serious attention to environmental issues, the moment of catalytic change came with the Chornobyl nuclear accident in April 1986. As radioactive rains fell in Wales and elsewhere, farmers were banned from selling their lamb. As a young academic, I was invited to Washington to a conference on international law and transboundary air pollution, about which I knew nothing.
One thing led to another, as I read Carson, delivered a lecture, published a book and started to write legal opinions on diverse subjects, from nuclear pollution to the conservation of whales. Along the way, a colleague introduced me to “Should Trees Have Standing?”, a law review article (and later a book) by a Californian scholar published a decade after Carson. Since our society is accustomed to “corporate personhood”, wrote Christopher Stone, why couldn’t natural ecosystems have rights of their own?
The responses to Stone’s ideas were generally muted, bemused or hostile. My initial reaction was pretty sceptical, coming of professional age as I did in a Britain that still had trouble imagining that humans had rights; recognising rights for trees, bees or rivers seemed a great leap.
Yet Stone’s article was so finely written and original, and far-reaching in its originality, that it sowed a seed that took root, gnawing away at my prejudices in favour of a legal order focused on the wellbeing of the human. I came to see that I was embedded in a legal order that put us humans at the heart of everything, and that the environmental rules with which I engaged had no interest in safeguarding the environment as an end in itself.
The heart of the issue raised by Carson and Stone was the fundamentally anthropocentric nature of our legal world, and over time other writers have taken up the cudgels for an approach that is more ecocentric, that makes the wellbeing of the natural world an end in itself. This is the direction now taken by renowned nature writer Robert Macfarlane, in his latest book Is a River Alive?
Acknowledging a debt to Stone, he takes us on a series of exhilarating journeys across the globe, urging us to vest rights in natural objects. Where Stone offered ideas of law, Macfarlane confronts the realities of the living, beating heart of the riverine world. He accompanies us to an Ecuadorean cloud forest and the headwaters of the Río Los Cedros; on to the “wounded creeks, lagoons and estuaries” of the dying waters around the city of Chennai in India; and then to the Mutehekau Shipu (or Magpie river), 600 miles north-east of Montreal. En route, we meet compelling characters — Rights of Nature fighters propelled by the writings of Ursula K Le Guin and John le Carré; individuals with steel-trap minds who can recite 400-line poems; and detritivore creatures that turn “the shit of life into something valuable” (a quality the human world is woefully short of these days).
With crystalline clarity and force, Macfarlane confronts the gross failure of our existing laws to protect rivers from harm, and homes in on developments that post-date Stone. He meanwhile acknowledges the beliefs of indigenous communities, who have embraced a nature-first worldview for millennia. He writes of Ecuador’s constitution, amended in 2008 to recognise actionable rights of nature; of a judgment of the Uttarakhand High Court, in 2017, decreeing that the Ganges river is recognised as a “living entity” with rights under the law; and of resolutions adopted by First Nations indigenous communities and local authorities that recognise the Magpie river to be a “legal person” with “fundamental rights”.
Such ideas are brought to life by the quality of the writing, the evocation of mood and place, the raw smells and energies that accompany Macfarlane, whether on a gentle walk into a Cambridge wood, or hurtling with mortal speed down a Canadian rapid. We are touched by the “steaming, glowing furnace of green” that is the cloud forest, or the “fine, drifting spray” thrown up by a “leaping and avid” stream. We feel the “cold burn down throat and into belly” of fresh water. We fear and wonder at the changes, from the “blue-black and glossy” of a river’s calmer run until it churns “green, gold and cream” at fall, and then “peat-brown” with the tranquillity of deep, slow water.
Macfarlane offers the power and timeliness of the natural world, in a style familiar to his many readers but now adopting a more overtly political tone, with a call for a new direction. Our classical laws, built around the human, have failed, and we need another way, one that ruptures the shackles of our learnt and inherited imaginations, and the limits of the legal intuitions that have trapped us. Let us imagine that a river lives and has rights of its own, Macfarlane argues.
“What does such a recognition mean for perception, law and politics?” His question is especially pertinent in a Britain where a “gradual, desperate calamity has befallen our rivers and streams”. Who, he asks, will protect the rights of the river? Who shall determine how its rights are to be balanced with ours? How will conflicts be resolved, whose rights will prevail, and who will decide? Today these are real questions in Ecuador, India and elsewhere.
Macfarlane calls for a compellingly different way of thinking, one that ditches the approach crafted in 1992, at the landmark UN conference in Rio, that “Human beings are at the centre of concerns for sustainable development”.
This is the established anthropocentric approach that dominates political discourse on matters environmental. It infuses our lawyers and judges and writers, and is to the fore once more in Just Earth, by Tony Juniper, an activist who has devoted his life to environmental matters and now serves as chair of Natural England, an official UK conservation agency.
Juniper’s latest book explores our existential challenges, recognising that our environmental programme is “ecologically doomed” and that “new ideas” are needed. His idea is to focus on social and economic factors, in the belief that less inequality and more fairness would offer greater respect for ecological boundaries, opportunities and a better quality of life “for everyone”.
The supporting evidence is thin, as is the claim that this would also offer cleaner rivers. Juniper wants action from “resource-focused” corporations, states devoted to “economic growth”, and indigenous groups, whose “nature-focused worldview” he celebrates but does not adopt. At the same time, he highlights the “stark divergence” between western and indigenous world views, and evokes King Charles III’s words recently offered in Dubai: “The Earth does not belong to us, we belong to the Earth.”
Yet the approach remains stubbornly anthropocentric, focusing on the human’s right to “a clean and healthy environment” and such matters, as well as laws that protect our “future generations”. The environment is, in effect, a sideshow, one to be protected to better safeguard ourselves.
Juniper’s argument may have legs and decency, but it doesn’t begin to approach the fundamentals of our inhumanities to nature, or how to address them. Nor is the approach “radical” or “ground-breaking”, as his publishers assert. It offers a tinker and a tilt at modern windmills, it feels tired and wholly eclipsed by the energy of Macfarlane’s ideas, his writing firmly inscribed in the power of Rachel Carson.
Carson helped us to think differently, and even nudged Richard Nixon into establishing the US Environmental Protection Agency. Half a century on, another Republican president seems to be hell-bent on destroying that institution and its achievements, eliminating most of its budget and many programmes, including the environmental justice office that addresses the poisoning of the poor and disadvantaged. “Drill, baby, drill”, Trump proclaims, a most modern embodiment of Carson’s piercing observation that man’s “war against nature is inevitably a war against himself”.
This I recently went to see for myself a couple of years ago, seated on a ledge in Utah, high above the snaking San Juan river as it coursed through the rock of Goosenecks State Park, hundreds of feet below. For three million years this now depleted river has cut its way through earth and rock, a magical combination of water, gravity, wind and ice. On the great scales of time, this natural world will be fine, my hiking companion suggested; it is only we who shall not.
Would it be so hard, Christopher Stone asked decades ago and Macfarlane asks again today, to find another way? It seems so, a question that resonates ever more powerfully.
Is a River Alive? by Robert Macfarlane Hamish Hamilton £25/WW Norton $31.99, 384 pages
Just Earth: How a Fairer World Will Save the Planet by Tony Juniper Bloomsbury £20, 368 pages
Philippe Sands KC is professor of law at University College London. His latest book is ‘38 Londres Street: On Impunity, Pinochet in England and a Nazi in Patagonia’ (Weidenfeld & Nicolson). His next book will be on ecocide
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