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Ecological Sustainability and The Law

Author: Cormac Cullinan - Director of EnAct International and Cullinan and Associates Inc

( Article Type: Sustainable Development )

The pursuit of well-being
The aspiration to achieve a high standard of human well-being is common to almost all human societies. What divides them is how to achieve it. Today the vast majority of governments seek to improve human well-being by promoting endless economic growth and measure their progress primarily by monitoring the country’s gross domestic product (GDP) or GDP per capita. They do this despite the fact that even the person who created the concept of GDP, Nobel Prize laureate Simon Kuznets, warned against treating GDP as a measure of human well-being.
Underlying the belief that increasing GDP will increase human well-being and happiness is the belief that more material goods lead to greater satisfaction. This belief, coupled with the desire to enhance status, power and security by acquiring greater material wealth, has created an insatiable demand for material goods and energy that is driving the rapidly accelerating destruction of the natural systems that provide all the material resources (clean water, air, food, minerals, etc.) on which we depend. This has already dangerously destabilised the climate.

Civilisation as we know it is unviable
Instead of by protecting and enhancing Earth as the source of well-being, the dominant forms of civilisation today are pursuing ‘economic development’ (instead of ‘human development’ in the sense of achieving one’s full potential as a human being) at the expense of the Earth. This means that these civilisations are not ecologically sustainable and hence unviable in the longer term, as is becoming increasingly obvious as ‘environmental crises’ - from climate change to soaring extinction rates and water shortages – become more severe and more frequent. Indeed it is difficult to overstate the magnitude of the ‘environmental crises’ that faces us at the present time. Globally the human population is consuming not only what ecosystems produce each year but is also consuming the ecosystems themselves. As we impair these natural relationships we diminish Earth’s capacity to maintain the conditions conducive to life and reduce the flow of future benefits, and so diminishing the prospects of our children and those of most other species, flourishing or even surviving.
The authoritative Millennium Ecosystem Assessment (MA) concluded that approximately 60% (15 out of 24) of the ecosystem services that it examined are being degraded or used unsustainably, including: fresh water, capture fisheries, air and water purification, and the regulation of regional and local climate, natural hazards, and pests. Since human life is sustained by these ‘ecosystem services’, what the MA is telling us is that that Earth’s capacity to give life to human beings has already been very significantly compromised and that human activities are continuing to worsen the situation.

Dysfunctional governance systems
An increasing number of people today are committed to transforming their personal lives and the societies in which they live in order to make them ‘sustainable’ – that is capable of continuing in the long-term. What few recognise is that the overall effect of our current legal system is to legitimise and encourage unsustainable human practices, rather than to prevent them.
Our governance systems are defective because they are based on a false understanding of how the Universe functions, and of our role within it. The core falsehood is that we humans are separate from our environment and that we can flourish even as the health of Earth deteriorates. In fact, we have convinced ourselves that our health and well-being depends on exploiting the Earth as fast as possible. The exact opposite is true: we have evolved within, and remain an inextricable part of, the community of life on Earth. This illusion of independence is exacerbated by the myth that we are the ‘master species’ whose destiny it is to run this planet for our own benefit. The dominant cultures in our world are as convinced of the superiority of our species over others and of our right to rule and exploit the planet as most white South Africans once were about their right to oppress other South Africans.
Laws have been used to ‘hard-wire’ these mistaken beliefs into the structure of our societies. For example, the law has reduced all other aspects of the Earth and all other creatures to the status of objects for the use of humans. Other living creatures have no rights, and for as long as they are legally defined as ‘things’ (as slaves once were), the law will regard them as incapable of having rights.

Shifting to an Earth-centred perspective
In order to achieve ecological sustainability, we need to make a dramatic philosophical shift from a worldview which places human beings at the centre of the Universe, to a view that sees the maintenance of the integrity of the whole Earth system as the overriding concern. This will also require us to expand our understanding of ‘community’ to include nonhumans, and to base our decision-making on what is good for the Earth Community as a whole. This may sound strange, but we should remember that this more comprehensive understanding of the nature of community has prevailed for most of human history, and is supported by the great wisdom traditions of many cultures. It is also an understanding that is inherent in African cosmologies and customary law.

Earth Governance
If the societies that dominate the world are ever to turn away from the destructive and potentially fatal direction in which they are headed, we must change not only our understanding of the role of humans within the Earth Community, but also our governance systems to ensure that humans act in accordance with this new worldview. We humans are an integral and inseparable part of the Earth Community. In the same way that a liver must regulate itself so that it not only functions efficiently internally, but also contributes to the health of the whole body, so we humans must govern ourselves in a manner that ensures that the pursuit of human well-being does not undermine the integrity of the Earth, from which our well-being is derived. Fortunately this process has already started and is rapidly gaining momentum. On 22 April 2010, more than 32 000 participants in the People’s World Conference on Climate Change and the Rights of Mother Earth held in Cochabamba, Bolivia proclaimed the Universal Declaration of the Rights of Mother Earth (the Declaration). The Declaration invites all people, organisations and states to adopt it, to co-operate in implementing it, and to support its adoption by the United Nations. It recognises that Earth is an indivisible, living community of interrelated and interdependent beings with inherent rights, and defines fundamental human responsibilities in relation to other beings and to the community as whole. (The Declaration uses the ancient term ‘Mother Earth’ to refer to this community in order to emphasise that humans should relate to the being that gives them life in a deeply respectful manner and not as an inanimate ‘resource’ to be managed.)
The Declaration recognises that all natural entities which exist as part of Mother Earth, including plants, animals, rivers and ecosystems, are subjects who have the inherent and inalienable right to exist and to play their role within the community of beings. It also acknowledges that because humans derive everything necessary for a good life from the living communities within which we live, we cannot maintain human rights and the freedom to live well unless we respect and defend the rights of Mother Earth. The Declaration is like the DNA of an ecologically sustainable society – any society that established governance systems that gave effect to the rights and responsibilities defined in it, would move into harmonious co-existence with Nature.

Changing governance in South Africa
It is important to appreciate that the defects in our governance system cannot be solved merely by legislative reform. The problem is not simply that our laws must be refined to make them more effective. In fact our laws, by and large, do accurately express the defective worldview on which they are based. Our governance systems, including our legal and political establishments, perpetuate, protect and legitimise the continued degradation of Earth by design, not by accident.
This means that achieving ecologically sustainable societies will require not merely adjusting our legislation to restrict the most environmentally-harmful activities (i.e. environmental laws), but completely re-thinking and transforming our legal and political systems. The crucial task is to regulate every aspect of human behaviour so that it contributes to, rather than undermines, the integrity and functioning of Earth’s systems.
The South Africa Constitution already gives everyone the right ‘to have the environment protected … through reasonable legislative and other measures that secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.’(emphasis added). Despite this, in many cases we are not only failing to achieve the goal of ecological sustainability, but accelerating away from it. One of the reasons this is happening is that although the law prohibits many activities that may harm the environment unless one has obtained a permit or other authorisation, the public bodies that grant those authorisations are not required to refuse permission for activities that do not meet the test of ‘ecological sustainability’. For example, the environmental impact assessment regime under the National Environmental Management Act 107 of 1998 does not make it clear that if an applicant for an environmental authorisation cannot prove that the proposed development be ecologically sustainable, the application must be refused. This must be changed. Sooner or later South Africa society will also have to come to terms with the need to provide legal recognition and enforcement of the inherent rights of the other beings in the Earth community to exist and to play their role within that community. Currently South African law does not even recognised the fundamental principle that all forms of life have intrinsic value, regardless of their usefulness to human beings, despite the fact that this has been recognised by many international instruments such as the 1992 Convention on Biological Diversity.

As more and more people accept that in the long-term human well-being can be achieved only within the context of a healthy Earth Community, they will begin to reorientate their lives, business and eventually, our societies, toward achieving this purpose. The challenge for us, and the next few generations, is to find novel and practical ways of drawing inspiration from the rich diversity of human experience as well as modern scientific insights in order to establish effective means of governing human behaviour to ensure that we contribute to the flourishing of the whole Earth Community instead of destroying it. Government of the people by the people is no longer sufficient. We need governance of the people by the people for Earth.

Editors Note:
The views expressed in this article by Cormac are articulated more fully in his book Wild Law (2nd Edition, Siberink, 2011), an expanded second edition.