Environmental justice

M Shahrukh Shahnawaz
Thursday, Sep 22, 2022

The large-scale destruction caused by the recent floods should be a sign for Pakistan to urgently implement environmental rights. This will require a broad approach as environmental laws are usually human-centric, not eco-centric.

Justice requires that all living beings and planet Earth are equally respected and protected. Human security is important (the UNGA adopted the resolution on human security in 2012), but it is not possible without environmental protection.

Many countries have now recognized the rights of nature, especially that of the rivers, in their constitutions. In 2008, Ecuador became the world’s first country to constitutionally recognize the rights of nature, and Bolivia passed the first-ever ‘Law of the Rights of Mother Earth’ in 2010. A few years later, Australia introduced the ‘Rights of Nature and Future Generations Bill 2019’, and the Supreme Court of Colombia gave the Amazon River the right to legal protection in 2018.

Some countries, however, took an opposite turn. In 2020, a US district court in Ohio struck down the Lake Erie Bill of Rights and declared it unconstitutional, and the Indian Supreme Court revoked the decision of the Uttarakhand High Court which granted the Ganges and the Yamuna the same legal status as humans. The Uttarakhand High Court had cited that New Zealand granted legal personhood status to the River Whanganui in 2017.

The reversal was unfortunate especially since the Salt Satyagraha of 1930 is the earliest example of the fight for the environmental rights of the people of the Subcontinent against the British monopoly over salt, which was available naturally and in abundance. It was fortunate to see that the Supreme Court of Bangladesh declared all its rivers a living entity in 2019.

River Indus which gave birth to the Indus valley civilization was once worshipped. Even the words ‘Hindu’ and ‘Hind’ are derived from the River Sindhu and Sindh – the name ‘Indus’ also derives from the word ‘Sindhu’. This river is now drying and dying.

The Indus has the lower riparian rights under the customary international environmental law and various international instruments, including the Madrid Declaration (1911), the Declaration of Montevideo (1933), the Helsinki Rules on the Uses of the Waters of International Rivers (1966), and the Convention on the Law of the Non-Navigational Uses of International Watercourses (1997).

The constitution of Pakistan is silent on environmental rights; legal experts think that Article 9, which ensures the right to life, and Article 38(d), which requires the state to provide basic necessities of life, can be used to include environmental rights. Both the federal and provincial governments can approach the Council of Common Interests under Article 155 if their interest in water is prejudicially affected.

Not many laws offer legal protection to the Indus, but the Indus River System Authority Act 1992 has established the Indus River System Authority for regulating and monitoring the distribution of water sources of the Indus in accordance with the Water Accord among the provinces.

The Indus Waters Treaty (1960), provides a mechanism to resolve disputes between Pakistan and India with the help of the World Bank, but is silent on protecting the Indus. The Lahore High Court in the ‘Asghar Leghari v Federation of Pakistan and Others’ case recognizes the concept of water justice, and the Khyber Pakhtunkhwa River Protection Ordinance 2002 prohibits construction along the rivers, highlighting the efforts towards recognizing the rights of the rivers.

Pakistan needs a new law which grants the Indus the right to be considered a legal and living entity. The same law should provide protection to the people whose survival depends on the river and devises a mechanism for cooperating with neighbouring countries like China and India whose actions can harm the Indus since the two countries are the upper riparian states.

Unless there is interprovincial, intergovernmental and interstate cooperation, and the flow of the Indus is not disrupted by any unwanted constructions, the river could never regain its lost glory.

The writer is a lawyer and teaches at the University of Karachi.

The writer is a lawyer and a faculty member at the Department of International Relations, University of Karachi.