environment

This article has been written by Gazal Sancheti.

Abstract

There cannot be any denying on the fact that our environment is the most valuable asset Earth has endowed us with. It fosters life and imbibes all the life forms. Yet, we as mankind have failed miserably in taking care of the same environment in which we live, and due to which we live. Today, global warming, pollution of tens of different forms, loss of biodiversity, ecological imbalance etc., are not mere concepts or theories but have become the sad reality. Of course, there are national as well as international laws, conventions and treaties to combat environmental issues, very less effort are made by the masses to protect the environment. This article, by trying to present environment as a common property of each one of us, attempts to strike a chord in the heart of the reader to make his inner self aware and active of the various responsibilities and duties he has towards the environment, as though it actually is his own property which he needs to take care of. Viewing environment as a common property also alters the very essence of environmental legislation from being laws and rules that one has to comply with to a duty which one ought to exercise towards using something which is commonly owned so that one person’s enjoyment/use doesn’t affect the enjoyment/use of others. 

When we talk about the concept of ‘property; we find that the term has different and varied usages. It might mean ownership or title, and at the same time, it may also mean the res over which such ownership may be exercised[1]. This article shall deal with each of these notions one by one subsequently and see if the environment fits into the scheme.

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Environment as a ‘Thing’

The idea or concept of ownership is always used in reference to a ‘thing’[2], it becomes important to see whether the environment can actually be considered as a ‘thing’ under law or not.  As John Austin defined, a thing is a permanent object, excluding persons, which is perceptible through or can be sensed via the senses.[3] While the dictionary meaning of ‘thing’ is varied across the books, two common features which are seen in every definition are-

  1. The element of permanence, and
  2. The element of physical unity.[4]

In law, the usage of the word ‘thing’ is even broader.[5] 

However, even in the legal arena, the usage of the word is far from consistent.

“A thing may mean:

  1. A thing in the material sense which is corporeal and tangible and has an organic or physical unity, e.g., a horse or a block of marble, or
  2. A thing which is corporeal and tangible, but consists of a collection of specific things, e.g., a flock of sheep, or
  3. A thing which exists in the physical world but is not material in the popular sense,g., electricity, or
  4. A thing which is neither material, corporeal, nor tangible but is an element of wealth, e.g., a copyright or a patent, or
  5. A thing which is not material and which is not directly an economic asset or element of wealth, e.g., reputation.”[6]

The aforementioned idea regarding the various legal uses of the term ‘thing’ is wide enough to encompass the environment as a ‘thing’ in it. The environment can certainly be considered as a thing under point number 3, as something which exists in the physical world, but is not material in the popular sense. It should be here noted that while some basic elements of the environment, like natural vegetation, water and soil, are corporeal and tangible; the corporeal existence of certain elements like climate is disputable. Hence, in order to prevent unnecessary confusion and divergence of viewpoints, it is best to consider the environment as a thing under the aforementioned point 3.  

Now that the environment can be considered as a thing under law, we can definitely consider it as a res which can be owned. The determination of the type of such ownership will be dealt with subsequently.

‘Owning’ the Environment

As per Salmond-

“Ownership connotes the relation between a person and an object forming the subject-matter of his ownership. It consists, in a complex of rights, all of which are rights in rem, being good against all the world and not merely against specific persons.”[7]

Ownership has been defined by many jurists in different ways, however, there are some essential characteristics of ownership which remain constant among all the varied concepts of ownership-

  1. The owner of a thing has the right to possess it. Whether he is in actual possession of the thing owned or not is immaterial so long he has the right to possess the thing,
  2. The owner of a thing has the right to use and enjoy the thing which he owns,
  3. The owner of a thing has the right to destroy, consume and/or alienate the thing which he owns,
  4. Ownership is indeterminate in duration, and lastly
  5. Ownership has a residuary character.[8]

Ownership can be of various kinds-

  1. Corporeal and Incorporeal Ownership,
  2. Sole and Duplicate Ownership,
  3. Trust and Beneficial Ownership,
  4. Legal and Equitable Ownership, and lastly
  5. Vested and Contingent Ownership.[9]

For the present purposes, we shall focus only on the second category- Sole and Duplicate Ownership.

Sole and Duplicate Ownership

When the ownership of a thing is vested in only one person it is known as sole ownership, whereas, if the same is vested in more than one person at the same time, it is called duplicate ownership.[10] Duplicate ownership can arise in a lot of ways, one of such way is that of co-ownership, in which the title of one owner is rendered consistent with the title of the other owner by the existence of reciprocal obligations of use and enjoyment.[11]

Further, co-ownership can be of two types- Joint Ownership and Common Ownership- the main difference between them is that in the former the ownership is non-inheritable, whereas, in the latter, the ownership is inheritable.[12]

In case of common ownership, when the owner of a property dies, his property can be inherited by his successor, whereas in case of joint ownership, the title of ownership dies with the owner. 

The pertinent question now is that whether the environment can be said to be commonly owned, that is, whether environment can be a common property?

Based on my analysis of the concept of common property, for anything to be owned commonly, the thing has to something which is inheritable as it is only then that it can be passed on from one owner to the other, and the res has to be acquired by one of the two ways in which one is entitled to acquire ownership- 

  1. by operation of law, and
  2. by reason of some act or event.[13]

Inheritableness of Environment

It is not a hidden fact that today, man has claimed his ownership on every possible thing on the planet, and beyond. Amassing private property is considered to be the best way to ensure financial security of oneself and one’s descendants. We often come across people buying things like islands, lakes, landmasses on mountains and hills, beaches and much more. All these assets then become their private property, which often they pass on to their successors- which implies that all of this is, in fact, inheritable in nature. The various nation-states across the globe claim ownership over the water bodies surrounding their land territory as well as the airstrip over their land- and the same continues to be owned by the State for centuries and centuries. Today, each and everything which man can claim title over is owned by someone or the else. All of the aforementioned things are components of the environment- the land, the hills, water bodies, soil, air etc. Each of these components is inheritable- they may be passed on generations after generations. By this reason, it is not at all disputable or unclear that environment is inheritable- for what can be inherited as private property can also be inherited as common property.

Acquiring Environment Commonly

A thing which can be owned be acquired in either of the following two different ways-

  1. by operation of law,
  2. by reason of some act or event.[14]

There have been innumerable accounts of various jurists, philosophers and thinkers of how nature is something which has been given to the humans by God for the purpose of utilising the natural resources for the benefit of mankind. Thinkers like Hugo Grotius, Samuel Pufendorf, Thomas Aquinas and even John Locke, all begin from more or less the same starting point, and in fact, their entire theories on property revolve around justifying the private ownership of something which has been given by God to the mankind in common.[15]

Since they all seem to agree upon this one premise that mankind has received the goods of the Earth commonly, and then they set up their arguments to reach different ends, there can be one more argument from a different line of reasoning which leads to a different conclusion. The goods of the Earth are still commonly owned because they were received by the mankind in common and the entire mankind traces its origin to a single pair of ancestors, a fact which has been supported by both science and mythology all alike. 

That act of God wherein he gave nature to man is that act by which we have acquired the rest of the environment.

Implications of Environment being a Common Property

Since the environment is commonly owned by each one of us, each of us is under a duty which emerges from the entitlement or ownership of the environment. As discussed earlier in this article, the owner of a property has the right to possess, use, enjoy, alienate and destroy his property. Being the common owners of the environment, each man has the same rights. But when all of us have the same rights, all of us are also under a duty to let others exercise their right. What I mean by this is that none of us has the right to possess, use, enjoy, alienate and destroy the environment in a manner by which others, who also own the environment, as stripped off of their right to do the same, in other words,

“In the case of co-owners, the title of one is rendered consistent with that of the other by the existence of reciprocal obligations of restricted use and enjoyment.”[16]

This implies that our interaction with the environment in any manner should be conditioned by the obligation we have towards each member of the mankind so that our interaction with the environment doesn’t hinder theirs in any way.

Conclusion

Seeing the environment as common property and keeping in mind the obligations that come along with it, it is a duty that of each one of us to protect the environment from any further damage. Till date, the major reason that is given for environment protection is that we ought to protect the environment because it provides us with the means of life, without which the mankind wouldn’t exist at all. But viewing the environment as a common property opens the doors for a rather fresh idea that one is under the obligation to protect the environment for the sake of that obligation which arises from the fact of environment being a common property, that is, the obligation to possess, use, enjoy, alienate and destroy the environment in personal capacity in a way which doesn’t interfere with the right of other owners of the same environment. Hence, the need for protecting the environment is not due to the sake of the environment itself, but because of the obligation, we have as co-owners. A thief’s house can too be robbed, and therefore, before interfering with someone else’s right to interact with the environment as its co-owner, we need to consider the fact that someone might even interfere with our right to do the same. This also alters the need for environment protection centric legislation to focus only on a person’s duty towards the environment but allows it to also focus on a person’s duty towards others of his own kind. However, whatever be the focus or the reason, the ultimate goal should be to protect the environment we live in. 

Endnotes

[1] G.W. Paton, A Textbook of Jurisprudence, 505 (4th ed., 1972).

[2] R.W.M. Dias, Jurisprudence, 295 ( 5th ed., 2013).

[3] G.W. Paton, supra note 1.

[4] Id. at 506.

[5] Id.

[6] Id. at 507

[7] Dr. Avtar Singh & Dr. Harpreet Kaur, Introduction to Jurisprudence, 283 (3rd ed., 2009)

[8] See. Id. at 289-293.

[9] See. Id. at 289-293

[10] Id. at 290.

[11] Id.

[12] Id.

[13] Id. at 287

[14] Id.

[15] Zev Trachtenberg, The Environment: Private or Common Property?, 50 Oklahoma Law Review, 399 (1997)

[16] Dr. Avtar Singh & Dr. Harpreet Kaur, supra note 7, at 290


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