Literature Review

This article aims to compare Environmental Law in England with the established body of Earth Law which currently exists internationally. It provides an analysis of English Law as it applies to marine protection, environmental permitting and wildlife conservation and critically analyses whether they are doing enough to ensure a conservationist regime. Further, it explores the Earth Law movement and how it might influence and change the application of Environmental Law in England. Particular attention is paid to academics and writers such as Christopher Stone, Rachel Carson and Cormac Cullinan. Examining the shift we as human beings must take from an anthropocentric stance to one of ecocentric and biocentric beliefs in order to support the Earth.

The relationship between human rights and environmental protection in international law is far from simple or straightforward. A new attempt to codify and develop international law on this subject was initiated by the UNHRC in 2011. What can it say that is new or that develops the existing corpus of human rights law? Three obvious possibilities are explored in this article. First, procedural rights are the most important environmental addition to human rights law since the 1992 Rio Declaration on Environment and Development. Any attempt to codify the law on human rights and the environment would necessarily have to take this development into account. Secondly, a declaration or protocol could be an appropriate mechanism for articulating in some form the still controversial notion of a right to a decent environment. Thirdly, the difficult issue of extra-territorial application of existing human rights treaties to transboundary pollution and global climate change remains unresolved. The article concludes that the response of human rights law – if it is to have one – needs to be in global terms, treating the global environment and climate as the common concern of humanity.

This article explores what the emerging paradigm of ‘Earth System Law’ suggests in terms of reconfigurations of the Earth, its subjects and the law. Which representations of the Earth and of its subjects does Earth System Law think with? And which human-nonhuman relations do these systemic reconceptualizations translate? While innovative in many regards when contraposed to international environmental law, Earth System Law's central novelty lies in its ‘systems-oriented ontology’. Yet, it is precisely this underpinning that deserves, I argue, more critical attention. While Earth System Law's rendering of the Earth system seems to embrace an ‘autopoietic’ understanding of how life-making and life-sustaining processes are enacted, its proposed functioning of a planetary Earth System Law and the systems approach that underlies it remain elusive. This article unpacks these tenets by suggesting that, instead of looking at the functioning of the Earth through autopoietic lenses, a ‘sympoietic’ view should be preferred to make sense of how life emerges and contingently unfolds on Earth, and leave space for collective modes of being, thinking and acting in the Anthropocene.

Book Summary: It is clear that international law is not yet equipped to handle the “ecological goods and services” that exist simultaneously within and outside of all states. The global commons have always been understood as geographical spaces that exist only outside the political borders of states. A vital good such as a stable climate exists both within and outside all states, and shows traditional legal approaches to be ecological nonsense. With the recent possibility of measuring and monitoring the state and functioning of the Earth System through the Planetary Boundaries framework, it is now possible to define a “Safe Operating Space of Humankind” corresponding to a biogeophysical state of Earth. In this sense, the Common Home of Humanity is not a planet with 510 million square kilometres, but is a specific favourable state of the Earth System. Recent major scientific advances anticipate a legal paradigm shift that could overcome the disconnection between ecological realities and existing legal frameworks. If we recognize this qualitative and non-geographic space as a Common Natural Intangible Heritage of Humankind, all positive and negative “externalities” end up being included within a new maintenance system of the Common Home.

Advocating a new form of leadership that places the health and well-being of people and the planet first, this book proposes a new Earth law, a framework for sustainable development and international environmental governance. As it argues that the planet is not the exclusive preserve of the executives of the world’s top corporations, this volume illustrates how the law can be the catalyst in a shift of attitude away from regarding the Earth as something to be owned and traded for profit. Detailed and passionate, this is a holistic approach to law, business, and the environment in the battle for the ecosystem.

I set out on this research concerned with human relations to the ecological world, and the role of law in these relationships. As one theory of nêhiyaw (Plains Cree) law and constitutionalism enables strong kinship relations between the nêhiyawak and non-human beings and things, I explore how nêhiyaw law can be revitalized to reconcile our land relationships. Wâhkôtowin, or the overarching principle that governs our relations, ensures that wellness and good living –miyo pimâtisiwin – is not only a human objective, but shared intersocietally with non-human relations and entities. This dissertation examines the constitutive role that four areas of Plains Cree livelihood – nêhiyaw âcimowina (narrative processes), nêhiyaw âskiy (Plains Cree territory and territoriality), nêhiyawewin (Plains Cree language) and nêhiyaw mamâhtâwiwina (Plains Cree ceremony) – play in ensuring such good living. Taking a ‘law as weaving’ approach’, these areas and institutions form a web to support kind relations to our environments and ecologies. Treaties provide an integral avenue to revitalize the uses of nêhiyaw law in our land relations. Canadian constitutionalism’s primary focus on human-to-human relations, without constitutional consideration of the agency of the ecological world, has had harmful effects on the wellness of non-human beings and things. When we apply the legal and constitutive principles within Plains Cree law and constitutionalism to Treaty 6, they obligate both the Crown and peoples within Canada in the same manner.

Book Sumary: Wild law is a groundbreaking approach to law that stresses human dependence on nature. For the first time, this volume brings together voices from the leading proponents of wild law around the world. It introduces readers to the idea of wild law and considers its relationship to environmental law, the rights of nature, science, religion, property law and international governance.

Time and time again, Indigenous people throughout the world are faced with the need to reassert their way of life, and to “buck” political and social systems that continually marginalize their treaty rights. In this article, I explore the role of Indigenous activism at different scales—personal, tribal, and collective—to intervene in key moments to uphold treaty rights and protect Indigenous ways of life. In defending treaty rights, Indigenous peoples have become leaders in the social and environmental justice movement, particularly in relation to climate justice and fishing rights. The article recounts three ethnographies that illustrate how access to rights is wrapped up in geopolitics and the political economy. Highlighting these acts of resilience and leadership in the face of crisis is the central work of this article. The article concludes with a call to fundamentally rethink governance mechanisms and structures, to protect ecological and human health.

Do people have a right to clean air, safe drinking water, and a healthy environment? Fifty years ago, the concept of a human right to a healthy envrionment was viewed as a novel, even radical idea. Today it is widely recognized in international law and endorsed by an overwhelming proportion of countries. Even more importantly, despite their recent vintage, environmental rights are included in more than 90 national constitutions. These provisions are having a remarkable impact, ranging from stronger environmental laws and landmark court decisions to the cleanup of pollution hot spots and the provision of safe drinking water. Environmental rights and responsibilities have been a cornerstone of indigenous legal systems for millenia. Yet the right to a healthy environment is not found in pioneering human rights documents such as the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), or the International Covenant on Economic, Social, and Cultural Rights (1966). Society's awareness of the magnitude, pace, and adverse consequences of environmental degradation was not sufficiently advanced during the era when these agreements were drafted to warrant the inclusion of ecological concerns.

Examples abound of national and international legal developments that indicate growing concern and respect for animals. However, a key barrier remains: animals are not recognized as legal persons and therefore do not have standing to pursue independent legal action. This significantly limits the scope for legal redress when animals’ interests are harmed. This article examines recent attempts in the United States and Europe to establish standing for animals via strategic litigation and the barriers that have so far undermined this project. The article argues that, despite their lack of success to date, cases that seek to establish standing for animals should continue to be pursued. Societal views about the value of animals’ lives are continually evolving such that these cases may soon be successful. Furthermore, even if unsuccessful, these cases help in creating the socio-cultural space required to redefine the human–animal divide and potentially transform animals into rights bearers.

This paper argues that, in spite of recent judicial practice contributing to the integration of environmental considerations in human rights adjudication, progress in this field remains limited. This is so because of the prevailing ‘individualistic’ perspective in which human rights courts place the environmental dimension of human rights. This results in a reductionist approach which is not consistent with the inherent nature of the environment as a public good indispensable for the life and welfare of society as a whole. The article, rather than advocating the recognition of an independent right to a clean environment, presents a plea for a more imaginative approach based on the consideration of the collective-social dimension of human rights affected by environmental degradation.

This Comment advocates a shift in contemporary standing dosctrine to empower non-profit organizations with an established history of dedication to the cause and relevant expertise to serve as official guardians ad litem on behalf of nonhuman animals interests. The American legal system has numerous mechanisms for representing the rights and interests of nonhumans; any challenges inherent in extending these pre-existing mechanisms to nonhuman animals are minimal compared to an interest in the proper administration of justice. To adequately protect the statuatory rights of nonhuman animals, the legal system must recognize those statutory rights independent of humans and provide a viable means of enforcement. Moreover, the idea of a guardianship for speechless plaintiffs is not new and has been urged on behalf of the natural environment. Such a model is even more compelling as applied to nonhuman animals, because they are sentient beings with the abiliy to feel pain and exercise rational thought. Thus, animals are qualitatively from other legally protected nonhumans and therefore have interests deserving direct legal protection.