Can kaitiakitanga save the planet?
20 December 2019
Opinion: There's no legal requirement for states to care for the Earth. But we must take responsibility and kaitiakitanga is the key, writes Klaus Bosselmann.
At the opening speech for last year’s Climate Week at the United Nations in New York, Prime Minister Jacinda Ardern presented the Māori concept of kaitiakitanga as the key for combating climate change.
She explained it in this way: “It means guardianship. But not just guardianship, but the responsibility of care for the environment in which we live, and the idea that we have a duty of care that eventually hands to the next generation, and the one after. We all hold this responsibility in our own nations, but the challenge of climate change requires us to look beyond the domestic. Our duty of care is as global as the challenge of climate change.”
“Guardianship”, “responsibility of care”, “duty of care”, “beyond the domestic” - what does that all mean? Can kaitiakitanga save the planet? Jacinda Ardern called on UN Member States to take their responsibility for the global environment seriously. Yet, the many terms and expressions she used to describe something quite basic is revealing. There is in fact no legally relevant duty of states to care for the Earth. As bizarre as it may sound, under international law, states have no enforceable obligation to protect the natural environment either domestically or globally. They may choose to do so, but they are not legally required.
States are legal entities, therefore “persons” with rights and responsibilities. The concept of state sovereignty gives the state exclusive rights, both internally and externally. States have, for example, the right to control their own territories and the right to exploit the natural resources within their boundaries as they see fit. Or the right to prevent other states from interfering with their “domestic affairs”. States also have responsibilities, for example, to not intentionally harm the territory of other states. Or the responsibility to protect citizens from harm. Fortunately, international law holds human rights in high esteem, so much so that states must respect and protect human rights and not just within their own territory.
One of the most important developments in international law has been the emergence of the Responsibility to Protect (R2P) principle. This requires states to uphold and protect human rights against states not willing or able to do so. R2P walks a fine line between state sovereignty and human rights. It is often ignored, but it is unlikely to be discarded anytime soon. Parallel to R2P and even more promising is the doctrine of sovereign states as trustees of humanity.
Universal human rights are constitutional to international law and a constraint upon state sovereignty. According to legal academic Professor Eyal Benvenisti, states must therefore act as trustees of human rights across national boundaries. Anything less would, in fact, threaten the very promise of human rights. The trusteeship sovereignty concept has great potential for meeting the two biggest threats of the 21st century, i.e. threats to human rights and threats to the Earth system, our home.
As bizarre as it may sound, under international law, states have no enforceable obligation to protect the natural environment either domestically or globally. They may choose to do so, but they are not legally required.
Earth trusteeship is the legal response to Jacinda Ardern’s call for environmental responsibility. The ethics of guardianship are deeply embedded in Māori and other indigenous cultures, but are also rooted in religious traditions and often referred to in contemporary socio-ecological texts.
From a legal perspective, we can think of Earth trusteeship as an obligation of the state to protect the integrity of Earth’s ecological systems - including the atmosphere and oceans (climate system!). More than 25 international environmental agreements refer to the duty of states to cooperate in order to protect and restore the integrity of Earth’s ecological systems. What is missing is the willingness of states to take this duty of care seriously and accept it as a legal obligation.
Elements of Earth trusteeship already exist in many countries. Examples include constitutional obligations of the state to protect the environment, environmental rights or progressive environmental laws. A good example is New Zealand’s Resource Management Act, if implemented and interpreted correctly, namely to respect non-negotiable environmental bottom lines.
Notably, the 2014 Te Urewera Act, the 2017 Te Awa Tupua (Whanganui River Settlement) Act and the 2017 Te Anga Putakerongo/Record of Understanding for Mount Taranaki recognise certain ecosystems - a national park, a river and a mountain - as legal persons. They have to be represented by guardians who speak and act on their behalf. This is the kind of Earth trusteeship (or guardianship) that Prime Minister Ardern had in mind in her plea to UN Member States.
Earth trusteeship is a new, but already widely-supported, concept. More than 80 human rights, human responsibilities and environmental organisations, including the New Zealand Centre of Global Studies, have recently formed the Earth Trusteeship Initiative. On December 10, 2018, the day of the 70th anniversary of the Universal Declaration of Human Rights, they launched the “Hague Principles of a Universal Declaration of Responsibilities for Human Rights and Earth Trusteeship” in the Peace Palace, The Hague. In my opening remarks for this event I said:
“What on Earth are we doing? For 70 years now we have human rights, yet more people are deprived of their most basic needs (material security, freedom of movement, freedom of expression etc.) than ever before. Treating all human beings as equal and in dignity is still an unfulfilled dream. And for 50 or so years, states produce policies and laws to protect the natural environment, yet these have not in any way stopped runaway climate change, biodiversity loss or growth madness. They have not reversed detrimental practices that could ultimately bring us down as a species. We are destroying Earth, our home, arguably because we have no firm sense of responsibility for her and for our common destiny. We urgently need a universal declaration of responsibilities for human rights and Earth trusteeship.”
The core message of the Hague Principles is that humans are members of the Earth community (of all living beings), which defines what responsibilities we as members have. Human rights are a prerequisite for any form of social organisation and totally indispensable. In fact, they require trusteeship responsibilities that each of us must accept and likewise our institutional tool of governance, the sovereign state. But human rights are not as fundamental as responsibilities we and our political institutions have for Earth. The Hague Principles call for a legally-binding commitment of states to Earth trusteeship.
In the Anthropocene (the period during which humans have dominated the climate and environment), Earth trusteeship exercised by people individually and collectively is the key. Without it, we would be saying that Earth doesn’t matter and that human survival doesn’t matter either. That simple.
Klaus Bosselmann is professor of law, director of the New Zealand Centre for Environmental Law at the University of Auckland and chair of the Earth Trusteeship Initiative.
This article reflects the opinion of the author and not necessarily the views of the University of Auckland.
Used with permission from Newsroom Can kaitiakitanga save the planet? 20 December 2019.
Alison Sims | Research Communications Editor
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