The Sovereign Stewards of Biodiversity 295
It is undoubtedly too difficult (or premature) to try to detach the legal
personality from the matrix of the rational, sovereign “man” and, above
all, from the attendant concept of private property (Davies, 2012). As Davis
and Naffine forcefully note, modern legal personhood has been defined and
constructed through property: “[t]o be a person is to be a proprietor and also
to be property – the property of oneself ” (Davies & Naffine, 2001, p. 5, n.
37; also see Grear, 2010, p. 51). The model of personhood remains that of
Macpherson’s “possessive individual” (Davies & Naffine, 2001, p. 56; Grear,
2010, p. 52; Naffine, 2003, p. 360) – one of the pillars of modern law which it
seems premature to tackle head-on.
One can, however, break the link between “subject of law” and “legal person”
(Kurki, 2019, p. 123; Pietrzykowski, 2017) and thus unleash the process of legal
subjectivation. The precedent set by the constitution of the modern legal person
in Europe between the 16th and 18th centuries shows that the pivotal moment
is when, through the attribution of new rights, a new politico-legal identity can
express itself. It is, therefore, necessary to follow the path that stretches from
rights to identity to the new subject of law, according to a sequence that Yves
Charles Zarka has already described: “The invention of the subject of the law
does not precede the modern definition of natural law but follows it” (Zarka,
1999, p. 261). Of crucial interest is that while legal subjectivation is a “process triggered by legal norms”, it “ultimately occurs outside the realm of law”
(Urueña, 2012, p. 35). It therefore leaves open the debate, informed by insights
from those concerned, the anthropology, the critical theory, on what is needed to
sustain the pluralism of practices of belonging and the expression of polyphonic
identities.
Returning to our thesis and conclusion, biocultural rights and the ethic of
stewardship allow a strategic reversal from alienating subject-making practices
to a new emancipatory process of legal subjectivation. At the very least, by
prompting an investigation into the ethical-political status of the subject (the
persona communis) to whom the new (biocultural) rights are granted, it fuels a
process of critical reflection on how to find a way for non-naturalist ontologies
in the international regime of biodiversity and international human rights laws.
As privileged inhabitants of the Global North, we feel a sense of unease
when asked to specify what the ethic of stewardship and the ethical-political
status should look like. But simple intuition won’t prejudge any further avenues to be opened: the reversal mentioned above probably takes us back to an
old tradition where the subject is a “sovereign” (subjectum) rather than a subservient subject or “assujetti” (subjectus) (Balibar, 2017). It therefore paves the way
for IPLCs to be seen as “sovereign” over their territories, lands and resources,
agents of their own past, present and future life, and able to forcefully express
“claims for alternatives to modernity” (Blaser: 882–3). The sovereign stewards of
biodiversity could be the missing link between environmental law and human
rights law.
It is undoubtedly too difficult (or premature) to try to detach the legal
personality from the matrix of the rational, sovereign “man” and, above
all, from the attendant concept of private property (Davies, 2012). As Davis
and Naffine forcefully note, modern legal personhood has been defined and
constructed through property: “[t]o be a person is to be a proprietor and also
to be property – the property of oneself ” (Davies & Naffine, 2001, p. 5, n.
37; also see Grear, 2010, p. 51). The model of personhood remains that of
Macpherson’s “possessive individual” (Davies & Naffine, 2001, p. 56; Grear,
2010, p. 52; Naffine, 2003, p. 360) – one of the pillars of modern law which it
seems premature to tackle head-on.
One can, however, break the link between “subject of law” and “legal person”
(Kurki, 2019, p. 123; Pietrzykowski, 2017) and thus unleash the process of legal
subjectivation. The precedent set by the constitution of the modern legal person
in Europe between the 16th and 18th centuries shows that the pivotal moment
is when, through the attribution of new rights, a new politico-legal identity can
express itself. It is, therefore, necessary to follow the path that stretches from
rights to identity to the new subject of law, according to a sequence that Yves
Charles Zarka has already described: “The invention of the subject of the law
does not precede the modern definition of natural law but follows it” (Zarka,
1999, p. 261). Of crucial interest is that while legal subjectivation is a “process triggered by legal norms”, it “ultimately occurs outside the realm of law”
(Urueña, 2012, p. 35). It therefore leaves open the debate, informed by insights
from those concerned, the anthropology, the critical theory, on what is needed to
sustain the pluralism of practices of belonging and the expression of polyphonic
identities.
Returning to our thesis and conclusion, biocultural rights and the ethic of
stewardship allow a strategic reversal from alienating subject-making practices
to a new emancipatory process of legal subjectivation. At the very least, by
prompting an investigation into the ethical-political status of the subject (the
persona communis) to whom the new (biocultural) rights are granted, it fuels a
process of critical reflection on how to find a way for non-naturalist ontologies
in the international regime of biodiversity and international human rights laws.
As privileged inhabitants of the Global North, we feel a sense of unease
when asked to specify what the ethic of stewardship and the ethical-political
status should look like. But simple intuition won’t prejudge any further avenues to be opened: the reversal mentioned above probably takes us back to an
old tradition where the subject is a “sovereign” (subjectum) rather than a subservient subject or “assujetti” (subjectus) (Balibar, 2017). It therefore paves the way
for IPLCs to be seen as “sovereign” over their territories, lands and resources,
agents of their own past, present and future life, and able to forcefully express
“claims for alternatives to modernity” (Blaser: 882–3). The sovereign stewards of
biodiversity could be the missing link between environmental law and human
rights law.