Literature Review

In many respects, the international system fails to protect cultural heritage. Both in times of warfare and civil strife and in times of peace, existing avenues for cultural heritage protection do not always succeed at preserving important cultural heritage sites. Even when the international community seeks to protect cultural heritage through judicial oversight, the effort is usually ex post facto and thus too late to actually preserve the destroyed cultural heritage. Challenges to cultural heritage protection are exacerbated considering that sacred spaces might not solely be a focus for preservation, but also include notions of use and protection given the spiritual significance of the site itself. Sacred space protection not only aims to preserve cultural property for the welfare of humankind writ large, but also considers the use of such space for religious practices or pilgrimages and seeks to ensure the preservation of a holy site on behalf of a particular group given its spiritual connection to a space. The unique nature of sacred space further suggests that it merits some form of international protection beyond what is available under the current cultural heritage regime. This Article will analyze potential sources for sacred space protection under the cultural heritage protection regime, noting some of the problems created by the current framework and the challenges they present for sacred space protection. The Article will then offer a potential source for protection of sacred spaces based on the international human right to freedom of religion or belief, pursuant to the current interpretation accorded to the right. Previous attempts to use the freedom of religion to protect sacred space have relied on the right when the use of the sacred space is part of a mandated and necessarily manifested religious act or when the sacred site is used by indigenous peoples. The interpretation of the right to freedom of religion or belief in this Article embraces an emerging group approach that includes indigenous people and centers on defining the contours of a belief. It also reflects broader understandings emerging in international human rights bodies and tribunals. The Article also will incorporate into its analysis a social constructivist approach to human rights, whereby the socialization process of human rights may encourage reliance on the human right to freedom of religion or belief as a potential ground for long-term sacred space protection. Reliance on freedom of religion, as opposed to cultural heritage protection, provides a relevant and conceptually-aligned basis for sacred space protection that better encapsulates the interests and meaning of necessary protection.

In 2008, Ecuador recognized the Constitutional Rights of Nature in a global first. This recognition implies a major shift in the human-nature relationship, from one between a subject with agency (humans) and an exploitable object (nature), to a more equilibrated relationship. However, the lack of a standard legal framework has left room for subjective interpretations and variable implementation. The recent widespread concessioning of pristine ecosystems to mining industries has set up an unprecedented conflict and test of these rights. Currently, a landmark case involving Los Cedros Protected Forest and mining companies has reached the Constitutional Court of Ecuador. If Ecuador’s highest Court rules in favor of Los Cedros and the Rights of Nature, it would set a legal precedent with enormous impact on biological conservation. Such a policy shift offers a novel conservation strategy, through citizen oversight and action. A ruling against Los Cedros and the Rights of Nature, while a major setback for biodiversity conservation, would be taken in stride by the active social movement supporting these goals, with the case likely moving into international courts. Meanwhile, extractive activities would continue and expand, with known consequences for biodiversity.

In the face of widespread degradation of natural resources (including deforestation), and socio-economic disparities, underserved populations from rural and indigenous spaces of the global south face challenges to conserve environmental resources. Many of these spaces, such as sacred-groves, are important to indigenous people and are deeply intertwined with their identity, worldviews and existence. This research, embracing principles of critical/cultural environmental communication, examines how indigenous people of eastern India mobilized collectively to protect their sacred environmental resources, thus improving community members’ well-being. Paying attention to engaged environmental action; critical listening and dialoguing; and local-centric participation, this research argues that contextually meaningful and community-led environmental initiatives help motivate and raise consciousness among future generations as well as among wider indigenous (and marginalized) populations.

Enforcement of the federal trust responsibility is necessary to protect Native America from environmental assault. Traditional lifeways that reach back literally thousands of years are poised in jeopary along with the natural resources upon which they depend. Across Indian country, many tribes are at the brink of losing their fish and wildlife resources, having their land and water supplies contaminated, or having their sacred sites destroyed forever. At least 317 reservations in the United States are threatened by environmental hazards. For example, the Confederated Colville Tribes of Washington, the Chippewas of Wisconsin, the Gros Ventre and Assiniboine Tribes of Montana, and several others battle massive mining projects just off reservation boundaries. The Northern Cheyenne Tribe deals with impacts from five coal strop mines, a 2,000-megawatt power plant, and potentially 16,000 new coal methane wells off its reservation. The Pyramid Lake Band of Paiutes and the Klamath, Yakama, Spokane, Salish, and Kootenai Tribes struggle to reclaim enough water in the rivers to sustain their fisheries.The Western Shoshones in Nevada confront a proposed nuclear waste dump, as well as. the existing fallout from nuclear waste testing on their aboriginal lands.6 The fishing tribes of the Columbia River Basin urge changes in hydrosystem operations to prevent the salmon species they have relied on for nearly 10,000 years from becoming extinct.7 The Hopi, Navajo, Sioux, Pueblo, Paiute, Quechan, Blackfeet, Wintu, Zuni, and perhaps dozens of other tribes now fight to protect their sacred sites from desecration. These threats to Indian country are pervasive, and the potential damage is permanent. In the treaty era, the government promised homelands that could sustain tribal lifeways, governments, and economies. But much of the natural web that supports tribal life and culture occurs beyond the boundaries of Indian country. These lands contain species that tribes hunt and fish for, roots and berries that they gather, headwaters and tributaries that flow into their reservation streams, and sacred sites. These are being destroyed at an unprecedented pace, and the pressure from industrial America is both unyielding and unbounded, coming from corporations that feed on growth. While environmental disease may sooner or later affect everyone in the United States, the impacts on Indian country are magnified, because the land base is the linchpin for tribal survival. The trust responsibility should play a role in protecting tribal lands and resources, but the trust doctrine stands in potential jeopardy today as courts collapse protective trust requirements into statutory standards.

In 2013, the Intergovernmental Panel on Climate Change (IPCC) warned the world: the observed warming of temperatures on the planet is very likely caused by human activity. All around the world, deforestation and pollution threaten the ecological equilibriums and the lives of local communities. In some places, economic projects that are harmful for the environment further infringe on ancestral territories of Indigenous groups. To tackle this problem and fight against the economic power of polluting corporations, some countries have passed laws recognizing the rights of nature. While such an idea may at first seem odd, it might not be so difficult to conceptualize it and to implement it. Many rights that we take for granted today used to be seen as implausible, impossible, even dangerous; their recognition has been the result of sometimes long and non-linear struggles against the dominant groups and their worldviews. The rights of nature might well be, one day, considered as much crucial as other rights. Still, their logic is mysterious for many. Are rights not only for those who can claim them ? What do we mean when we talk about nature – are we talking about a tree, a river, a forest, the planet? How can unconscious entities have rights ? How can even a nonliving entity have rights, and who will defend such rights?

Sacred groves are communally-protected forest fragments with significant religious connotations. These community lands attain significance due to biodiversity conservation and provide ecological services in local landscapes. However, it has often been found that interests related to sacred groves are often concentrated towards the groves with conspicuous presence, i.e. in terms of expanse, economic importance or presence of charismatic species, etc. This undermines the role played by the small groves (mostly < 1 ha) and also lead to degradation over time. This commentary analyses the role and need for conservation of small groves in local landscape scenario.

Linda Sheehan identifies as the foundational flaw of modern environmental law its understanding of nature as separate from, and having the function of serving, human beings. It is thus necessary, she argues, to transform environmental law in a way that promotes new relationships among communities and nature. That approach, she maintains, is already contained in the idea of rights. In the same way that human rights can serve to rebuild relationships between human beings, recognising nature's rights can help to rebuild a community's relationship with nature. In this comment, I would like to explore some of the connections between the recognition of the rights of nature in some Latin American countries (namely Ecuador through the Constitution of 2008 and Bolivia through the Law of Mother Earth of 2010), and what has been identified by some authors as the New Latin American Constitutionalism (NLAC). I will argue that not only the legalisation of these rights mandates a fundamentally different relationship between human beings and their natural environment, but that it is strongly connected to more general developments in Latin American constitutional law.

In the past decade, there has been a proliferation of discourse advocating for greater legal protection for the Earth in the form of ‘the rights of nature’. This article critically examines local movements to recognise the ‘the rights of nature’ through critical discourse analysis, focussing on local Community Bills of Rights and localised Rights of Nature ordinances sponsored by the Community Environmental Legal Defense Fund (CELDF). I argue that while these measures engender the conditions for human communities to challenge the usurpation of the non-human environment by multinational corporations, their effectiveness is limited due to narrow, ideological and anthropocentric conceptualisations of the ‘natural environment’. Taken together, these conceptual shortcomings not only impede the possibility for the measures to be successful in practice, but also impede their potential to repair the disruption in the human relation to non-human beings and environments.

This paper passes in review the different pieces of legislation and court judgments which were issued until now as regards rights of nature, and critically comments on their impact. In a first section, the legislation, including the constitutional texts of some countries, will be presented. In a second section, the implementation of the different measures will be discussed, also with a view, whether the EU could learn from the trend to give natural assets rights of their own. Short concluding remarks will end the contribution.

There is increasing international recognition that in the age of the Anthropocene the wellbeing and rights of humans are inextricably linked to those of natural ecosystems. For two years, international governmental and non-governmental organizations have tracked and reported “co-violations”– violations of both human rights AND rights of Nature (RoN). In the past two years, reported co-violations of human and Nature’s rights have doubled from 100 to 200 cases. Hundreds of activists from over 16 countries, including Goldman Environmental Prize winner Berta Caceres and Peruvian Maxima Acuna de Chaupe, were killed for defending Nature’s rights and the rights of communities to live in a clean ecosystem (Wilson, Bender, and Sheehan 2016, 3). UN Special Rapporteur on the Situation of Human Rights Defenders blamed this “disturbing trend” on “intensified competition for natural resources over the last decades,” noting that “in a globalized world, the quest for economic growth has resulted in a neo-colonial environment that exacerbates conflicts between communities and business actors” (United Nations 2016, 3, 23). While attention is often focused on the Global South, pressures for human and Nature’s rights are also mounting in the Global North, including in the U.S. and New Zealand cases described below. Consequently, some in the global community have concluded that a focus on human rights has left a whole in existing systems for defending rights. Increasingly, communities and governments around the world are working to plug this hole by adopting legal provisions granting rights to Nature.

This article answers the question of: Who Needs the Rights of nature? and discusses five different approaches to recognizing the legal status of nature.

The 2008 Ecuadorian Constitution built a particular system for environment protection, breaking the dominant paradigm characterized by an anthropocentric and utilitarian relation with nature. The Ecuadorian Constitution raised the nature of the condition subject of rights. Such a conception is associated to buen vivir (Sumak Kawsay in Kichwa), which relates to the ways of life and world view of native peoples. Therefore, this article aims at understanding the social construction of this understanding of nature in the context of the processes experienced in Ecuador and called New Latin American Constitutionalism. To meet the proposed objective, the methodology used was based on the survey and review of references related to the rights of nature, held in university libraries and at the Supreme Court of Ecuador, as well as on interviews with indigenous leaders, which served to guide reflections. As a result, the analysis of recent legal changes experienced in Ecuador invite us to a comparative reflection on the Brazilian environmental policy.