Literature Review

This paper shows and describes a collection of art exhibitions relating to the rights of nature.

‘Yet behind these obvious and immediate hopes and fears there lies a deeper meaning, known only to the mountain itself. Only the mountain has lived long enough to listen objectively to the howl of a wolf’ (Aldo Leopold. (1949/1989). A Sand county almanac, p. 129). How do we think about rivers and waterways? In this paper I meditate on the notion of ‘thinking like a river’, to ask questions about how rivers and other waterways are conceptualised in the human imaginary, and in relation to peoples, place and ecology. The paper speculates on an ontology and phenomenology of watery places; to explore alternative ways of seeing and thinking. It poses the possibility that alternative epistemologies of nature can facilitate a deeper thinking that embraces connectivity - the idea that rivers and waterways are intrinsically connected with place, peoples and landscape. I draw on three rivers and bodies of water, two in Australia and one in Aotearoa, New Zealand, to explore how these are being re-imagined in more holistic ways, embracing Indigenous First Law, cosmologies and epistemologies, and framing them in discourses of Earth laws.

Using Indigenous Australians' oral histories as primary sources, this paper seeks to explore the Aboriginal peoples' image of self (the colonised) and other (the coloniser) within the dimensions ofthe Australian colonial landscape. I begin by contextualising Aboriginal landscape and history within anthropological and historiographical arguments. However, the main aim is not to present my investigation of Aboriginal history, but rather to introduce and reflect upon historical analysis by an Aboriginal historian.

Since 2006, governments around the world have adopted legal provisions recognizing Nature as a subject with inherent rights (e.g., to exist, regenerate vital cycles, and be restored when damaged). Initiatives to enact Rights of Nature (RoN) legal provisions are also underway in international policy spheres, including the United Nations Harmony with Nature Programme,1 the draft Universal Declaration of the Rights of Nature,2 and the Intergovernmental Panel on Biodiversity and Ecosystem Services (IPBES).3 Efforts to enact Earth law domestically and internationally are driven by transnational networks of activists, NGOs, lawyers, scientists, policymakers and others who reject dominant anthropocentric development norms and practices. Arguing that human wellbeing is dependent on the wellbeing of Earth’s ecosystems, they advocate a new approach to sustainable development that prioritizes sustaining ecosystem functioning over increased consumption, and that places the wellbeing of the planet as a whole ahead of human self-interest alone. Much is written on the moral and legal philosophy behind RoN (e.g., Berry 1999, 2002; Biggs, Goldtooth & Orielle Lake 2017; Cullinan 2011; Hosken 2019; Stone 1972). Yet, few if any studies have analyzed the transnational networked governance structures that have emerged to promote RoN legal provisions, and the resulting expansion of RoN legal provisions worldwide. This paper fills this gap in two ways. First, it analyzes an original database of RoN legal provisions worldwide (the most comprehensive to date) to show their global expansion over the last decade. Second, it maps and analyzes the various transnational networks that are spurring a recent dramatic expansion of RoN legal provisions. Using original datasets of network ties and member attributes, the paper employs social network analysis to understand the structure of existing RoN networks as well as the attributes and relationship among various RoN organizations.

During the question period, I grabbed the microphone and expressed my opinion hoping for everyone to hear it and take some of the information I provided into account. Since that day, I have been trying to spread the word. [...]the government approved these two laws which were prepared mostly by pro-government assembly members, government officials and a few pro-government Indigenous organizations that broke away from the Unity Pact. [...]the resulting laws were considered a watered-down version of the draft law that had been agreed upon. [...]the adoption of both these laws was opposed by the members of the Unity Pact, who felt alienated and deceived by the government, and decided to withdraw from the legislative process, arguing irreconcilable differences regarding the content of the laws. Since the passing of these laws, the Bolivian government has pushed for numerous projects which involve the invasion of protected areas and the violation of Indigenous people rights.

The call for institutionalizing Earth trusteeship cannot easily be reconciled with state sovereignty. The concept of state sovereignty emerged at a time of great distances and absolute national autonomy. However, in a globalized, interconnected world utterly depending on the integrity of Earth’s ecological systems, absolute territorial sovereignty is counterproductive and potentially life threatening. The chapter argues that the time is right for reconceptualizing state sovereignty. Sovereignty includes not just fiduciary and trusteeship obligations towards the state’s own citizens, but also towards humanity at large and Earth as a whole. The UN Agenda 2030 with its Sustainable Development Goals offer a window opportunity for institutionalizing Earth trusteeship at international and national levels. A critical tool for achieving this has been the adoption of the “Hague Principles for a Universal Declaration on Responsibilities for Human Rights and Earth Trusteeship” in the Peace Palace, The Hague, on the day of the 70th anniversary of the Universal Declaration for Human Rights (10 December 2018).

Environmental justice is a well-established concept functioning on the borderland between environmental law and human rights. Social elements of ecosystem service trade-offs, which are inextricably linked with the concept of environmental justice, require insight into three main areas of concern dominating the theories of social justice: distribution, recognition and procedure. It is a paradox that current environmental governance is shaped by the representatives of privileged classes of industrialised developed states who gained their position on externalising the environmental effects of their industrial development. Demands for representativeness and pluralism of world-views should be included in the frameworks of Earth system law.

The personification of Planet Earth as a mother implies its recognition as a subject and not as an object, with its own rights regardless of their usefulness to people and with respect for its dignity and integrity. Despite indigenous, social, academic and political movements, the rights of Mother Earth remain contested in most countries and international law continues to protect the environment for the sake of human interests.

This paper blends conservation science with legal and policy analysis to assess the primary threats to global shark populations and explores innovative approaches to conservation building upon the philosophy of Earth law, including the Rights of Nature legal framework. Using a case study of Panamá’s national Rights of Nature law, this paper highlights approaches to improve the protection and restoration of shark populations and their habitats. By examining the ecological, social, and economic aspects of conservation holistically, this study offers an interdisciplinary perspective on the urgency for shark protection and presents Rights of Nature as a valuable approach to shark conservation, with potential applications to other species globally.

Earth System Law has been proposed as an alternative conceptual framework to animate and support more adequate legal responses to planetary change. The emerging Earth System Law literature has sketched the contours of this new legal paradigm and reflected on its implications for the legal scholarly community. However, to date, less attention has been paid to the challenges of harnessing the transformative potential of Earth System Law; that is, its promise to evolve from a theoretically innovative perspective to facilitating positive, on-the-ground change. In this paper, we therefore ask: Which issues and questions will the Earth System Law research community have to engage with to ensure that Earth System Law is able to initiate and drive the processes of transformative change which it purports to support? And, which starting points can we identify for productively engaging with these issues? Responding to these questions, we articulate a theory-to-practice agenda which sets out departure points for working towards Earth System Law finding resonance in practice.

Legal institutions exclusively focused on human perspectives seem insufficiently capable of addressing current socio-ecological challenges in the Andean-Amazonian foothills of Colombia. It is critical to probe new analytical frameworks that integrate other-than-human beings within legal institutions and decision-making protocols in this region. Such an approach weaves together various fields of knowledge and world-making practices that include—but are not limited to—Indigenous legal traditions, ecological law, multispecies ethnography, and ecological economics. My dissertation discusses how human and other-than-human beings such as medicinal plants and what Indigenous peoples in Southwestern Colombia call the “invisible ones” (los invisibles) co-create legal protocols and institutions. Furthermore, it studies the conceptual openings, methodological challenges, and ethical conundrums of this approach for the broader Earth Law movement, particularly the rights of nature. What happens when we consider forms of agency beyond symbolic and multicultural frameworks in legal theory and practice? How does a law that emerges from plant-human-“invisible” peoples’ entanglements challenge concepts of justice, agency, and value in times of socio-ecological transitions? How do forests become legal agents through different sets of territorial practices? My dissertation combines a multi-sited ethnography and a post-humanist approach in anthropology, law, and decision-making theory to study the entangled lives of law and ecology in the regions of Nariño and Putumayo, as well as the potential contributions of this framework towards a post-anthropocentric legal theory. In conversations with biologists, Indigenous practitioners from the Cofán and the Inga communities, legal scholars, and medicinal plants, particularly Yoco (Paullinia yoco) and Yagé (Banisteriopsis caapi), Legal Lives looks at how legal institutions emerge from the fabric of human and other-than-human forms of agency. This relational approach is at the core of the Earth Law movement and the radical paradigm shift it proposes for legal theory and practice in Latin America and beyond. The dissertation is divided into three parts. The first one (I. Towards a Law Otherwise) offers an ethnographic approach to the law and comprises two chapters on the relationship between medicinal plants and legal protocols. Moreover, it includes three sub-chapters with the name of three different plants where I discuss the implications of vegetal agencies for socio-legal thought in the Andean-Amazonian region today. To further explore the connections between other-thanhumans and the law, chapter 2 (“Los Invisibles”) focuses on the making of an ethnobotanical research protocol with humans, plants, and what members of the Cofán community in the regions of Nariño and Putumayo refer to as the “invisible people” (los invisibles). Thus, Towards a Law Otherwise provides an ethnographic and conceptual basis to support the theoretical claims of the second part of the dissertation, namely: The Rights of Nature: Limits and Possibilities. Part II addresses some of the conceptual limits and political possibilities of the Rights of Nature in Latin America in the context of an emerging Earth Law movement. By attending to the social and legal worlds of other-than-human beings introduced in the first part of the dissertation, Rights of Nature proposes to reimagine fundamental premises of social and legal sciences at present, namely, (a) the idea that the law is primarily symbolic or propositional; (b) the notion that rights and responsibilities are commensurable across different legal cultures and cosmologies (Ch. 3 “Conjuring”), and that (c) the concept of legal personhood is fundamental for legal redress (Ch. 4 “Forest on trial”). Part II, a contribution to a relational theory of legal agency, therefore critically assesses core notions of Western law such as legal personhood, standing, rights and responsibilities. The third and final part of the dissertation (III. Rhizomatic Agencies) reviews and summarizes the argument concerning agency and discusses how parts I and II could serve as tools for legal transformation in concrete scenarios of learning and judicial decision-making. A summary of agency theory with ethnographic insights from the first section, chapter 5 (“Agency Scaffolding”) dives into the limits of individual and collective forms of agency and explores the possibility of plural and rhizomatic agencies that include other-than-human beings in decisionmaking protocols. Chapter 6 (“Worlding with Indigenous Law: A teaching and learning proposal”) can be considered as coursework material concerning Indigenous legalities. It refers to a specific Indigenous legal tradition—the Inga—as it transforms State law, while contributing with an emerging global Earth Law movement. The dissertation closes with a syllabus on “Indigenous legal traditions: from the Boreal to the Amazonian forests” (Chapter 7).