Literature Review

The Rights of Nature concept not only breaks with the anthropocentrism of existing (environmental) law; it also recognizes that nature has private interests, in addition to being of public interest. That is, whereas in classic sustainability thinking, the use of certain resources is allowed as long as public interests are not systematically/systemically harmed, rights of nature facilitate the protection of nature before planetary boundaries are transgressed. This recognition of nature as having private interests enables the framing of disagreements around ‘nature’ as matters of corrective justice, which renders the application of private legal doctrines more easily conceivable and arguably even necessary. The contributions to this Symposium Collection showcase the viability of the intersection of private law and rights of nature. Firstly, it is necessary to research how existing private law will influence the effectiveness of rights of nature. Such an exercise is undertaken by Björn Hoops, who carefully assesses what rights for the German Black Forest would mean in terms of German constitutional property law. The mirror image of this approach is to explore what impact Rights of Nature will have on private law. Such an approach is taken by Alex Putzer and co-authors in their article on the transformation of land-ownership regimes after the introduction of Rights of Nature in Ecuador and Uganda. A third line of scholarship assesses the significance of Rights of Nature for private law theory: Visa Kurki proposes a new concept of legal personhood, prompting us to think through the meaning of statements like ‘a river is a legal person’.

The multi-species turn is generating significant new opportunities for rethinking theories of justice. However, these efforts to think beyond anthropocentric approaches to justice often sit uneasily alongside the concerns of more human-centered social justice movements. Closely engaging a recent paper that outlines a research agenda for this emerging field, I argue that to take seriously the question of how to build counter-hegemonic coalitions that might ultimately be capable of translating these approaches into durable institutional forms, it is important to more fully engage Indigenous and critical race scholarship while at the same time more carefully attending to the tensions and frictions between them. Both raise questions about the ontological and political priorities of multi-species activists that deserve significantly further engagement. I advance this argument by means of short illustrative snapshots of recent debates within movements for the rights of nature in Australia and the United States.

Indigenous peoples are among the most affected by environmental injustices globally, however environmental justice theory has not yet meaningfully addressed decolonisation and the resistance of Indigenous communities against extractivism in the settler-colonial context. This paper suggests that informing environmental justice through decolonial analysis and decolonising practices can help transcend the Western ontological roots of environmental justice theories and inform a more radical and emancipatory environmental justice. The Unist’ot’en Resistance and Action Camp blocking pipelines in northwestern British Columbia, Canada, their “Reimagined Free Prior and Informed Consent protocol” and the Delgamuukw case are described to discuss limitations of the state and legal framework for accommodating a decolonial and transformative environmental justice. A decolonial analysis informed by these two moments of Wet’sewet’ten history suggests limits and adaptations to the trivalent EJ framework based on recognition, participation and distribution. It is argued that a decolonising and transformative approach to environmental justice must be based on self-governing authority, relational ontologies of nature and epistemic justice and the unsettling of power through the assertion of responsibility and care through direct action. This discussion is placed in the context of the expansion of the concept of ecological rights, for example through the enshrining of the “Rights of Nature” in the constitutions of countries such as Bolivia and Ecuador, to highlight the Inherent tensions in the translation of Indigenous cosmo-visions into legal systems based on universalist values.

We review the use of science by lawmakers and courts in implementing or rejecting legal rights for nature in Ecuador, India, the United States, and other jurisdictions where some type of rights of nature have been recognized in the legal system. We then use the “right to evolve” to exemplify how interdisciplinary work can (i) help courts effectively define what this right might entail; (ii) inform how it might be applied in different circumstances; and (iii) provide a template for how scientists and legal scholars can generate the interdisciplinary scholarship necessary to understand and implement the growing body of rights-of-nature laws, and environmental law more generally. We conclude by pointing to what further research is needed to understand and effectively implement the growing body of rights-of-nature laws.

The advent of Rights of Nature (RoN) marks a new paradigm shift in the philosophical approach to nature. As such, the concept has generated enthusiasm amongst environmentalists and legal scholars. This is not surprising since granting legal personhood to nature seems to present itself as a relative easy fix for the multitude of deficiencies of “modern” environmental law. However, when critically assessed, many of the underlying assumptions justifying a shift towards rights-based approaches to nature are open to challenge. In this paper, which takes a more critical stance on the topic of RoN, it is submitted that also the much-criticized modern environmental law is moving towards a recognition of the intrinsic value of nature, puts breaks on property rights, offers remediation actions for pure ecological damage and also increasingly grants environmental ngos wide access to courts. Moreover, on a second level, it is argued that RoN are not a legal revolution and that many of the problems Rights of Nature tries to cure – such as a lack of enforcement – will simply re-emerge if not adequately assessed within this novel paradigm.

In 2008, Ecuador became the world’s first country to include rights of Nature (RoN) in its constitution. The constitution presents RoN as a tool for building a new form of sustainable development based on the Andean Indigenous concept sumak kawsay (buen vivir in Spanish), which is rooted in the idea of living in harmony with Nature. While much is written on the ethical arguments regarding RoN (and buen vivir), few studies analyze how RoN might be implemented. We fill this gap by explaining why some efforts to apply Ecuador’s RoN laws succeeded while others failed. We compare 13 RoN lawsuits using an original framework for analyzing the pathways and strategies RoN advocates (and their opponents) use to build (and counter) momentum behind judicial processes meant to buttress the enforcement of contested RoN norms. The case descriptions and analysis draw on primary documents and in-depth interviews conducted during 2014–15. Through process tracing, we identified key structural conditions and strategic decisions shaping the outcomes in each case. Our findings as of 2016 reveal unexpected pathways of influence involving a symbiotic process among civil society, state agencies, and the courts. Surprisingly, civil society pressure was the least successful pathway, as activists lost high-profile lawsuits. Nevertheless, they facilitated judicial momentum by working on less-politicized local cases and training lower-level judges. Instrumental use of RoN laws by the state produced unintended consequences, including establishing precedent and educating judges. Knowledgable judges are unilaterally applying RoN in their sentencing, even when neither claimants nor defendants allege RoN violations. Ecuador’s cases demonstrate how “weak” RoN laws can strengthen, providing important insight into the global contestation over sustainable development and the strategies and legal tools being used to advance a post-neoliberal development agenda rooted in harmony with nature.

Is it possible to justify resource extractivism to provide progressive welfare politics and still respect the constitutional rights of nature? The Indigenous concept of Sumak Kawsay on human beings living in harmony with each other and the environment is the fundamental framing of the new constitutions of Ecuador and Bolivia. These constitutional reforms embrace strengthened proper rights of nature and similarly of ethnic rights. However, the same constitutions grant the State the right to exploit and commercialize natural resources and extractivism has increased. This study revises the tensions between welfare politics, extractivism and the rights of nature and the Indigenous peoples in the new constitutional settings of Bolivia and, particularly, Ecuador. The article argues that Sumak Kawsay challenges dominating understandings of the concepts of welfare, common good and development, and likewise that a pragmatic approach is applied by national governments towards the constitutional rights of nature amidst other human values.

Governments around the world are adopting laws granting Nature rights. Despite expressing common meta-norms transmitted through transnational networks, rights of Nature (RoN) laws differ in how they answer key normative questions, including how to define rights-bearing Nature, what rights to recognize, and who, if anyone, should be responsible for protecting Nature. To explain this puzzle, we compare RoN laws in three of the first countries to adopt such laws: Ecuador, the US, and New Zealand. We present a framework for analyzing RoN laws along two conceptual axes (scope and strength), highlighting how they answer normative questions differently. The article then shows how these differences resulted from the unique conditions and processes of contestation out of which each law emerged. The article contributes to the literature on norm construction by showing how RoN meta-norms circulating globally are infused with differing content as they are put into practice in different contexts, setting the stage for international norm contestation.

In 2008, Ecuador became the first country in history to guarantee rights to nature, in its new constitution. This article tells the story of this extraordinary moment in constitutional history, presenting a detailed description of how these rights came about, why they appeared when and where they did, and what they mean to those concerned with this innovation.

This paper offers a critique of the current approach in natural resources management in both international and national laws which is mostly anthropocentric. The argument is that while the Earth Charter recognises nature and the need for environmental conservation, the same document also ties this with human rights and human needs, thus implying that the main reason for respect for the environment and Mother Nature is to be able to meet and fulfil the needs of the humankind. In addition, while some jurisdictions have taken the bold step of vesting nature with a legal personality and consequently rights based on its intrinsic nature, the practice has been to conserve the environment and natural resources guided by the sustainable development agenda which is largely anthropocentric, that is, putting the human being and the satisfaction of all their needs at the centre of these efforts. The paper examines the idea of giving natural resources a legal personality and relates this to the Kenyan context. It advocates for an approach that strikes a balance between ecocentrism/biocentrism and anthropocentrism approaches in environmental and natural resources management and conservation in Kenya.

This last chapter is dedicated to alternative approaches to environmental human rights and their relation to Indigenous peoples, with a view to lay the foundation of future research around the connection between Rights of Nature (RoN) and Indigenous peoples cosmovision, spirituality and beliefs in a decolonial perspective. This chapter argues for the need of critically rethinking human rights-based approaches to climate change, by allowing a paradigmatic shift towards Earth Jurisprudence and RoN, however highlighting some important critical considerations and problematizations we should take into account when affirming that Rights of Nature are inextricably linked to Indigenous cosmovision, knowledge and beliefs. In addition, this chapter presents a review of global environmental litigation based on RoN, highlighting the most important feature of this particular case law. In its final part, the chapter suggests a new approach to environmental law and governance represented by the right of ecological integrity, a way forward through a non-centredness theory.