Literature Review

This article evaluates the emergence of rights for nature in global politics, focusing particularly on questions surrounding the politics and ontology of collective personhood in Ecuador and New Zealand. Rather than assuming international space to be largely populated by state persons who in turn grant personhood to nature, these cases suggest that it is more productive to start by asking what kinds of collective persons populate world spaces, and in what ways they are made political. Augmenting conceptions of Westphalian personification rooted largely in human symbolic practices, the article advocates for an understanding of persons as figures that are sometimes produced by relations between human and nonhuman actors. It then suggests that the rights of nature are, paradoxically, not a politics over whether a singular nature should be a rights holder but, rather, are partial challenges to the universality of secular law and the sovereign state. As such, they raise important questions about the politics of translation and the commensurability of multiple conceptions of collective personhood.

Should humans be in Antarctica, the only continent free from a permanent human population? Or does the Antarctic have special rights and interests which should be taken into consideration? Exploring the applicability of rights of nature (RoN) to the Antarctic, this thesis explores the underlying ethical and philosophical assumptions around the expanding human footprint in the Antarctic and considers alternative perspectives, especially related to ecocentrism and multispecies justice. The cumulative impacts of human activities in the Antarctic region are not fully understood, yet their scale and scope are increasing. I explore the current human footprint in the Antarctic and the existing environmental governance regime for the region, focusing more particularly on tourism, science, and fishing, as well as on the cumulative impacts of these activities. I also discuss why the status quo of Antarctic governance might not be fit for the 21st century anymore, as the current regime for environmental protection has proven limited in addressing this expansion and meeting the requirements of ecocentrism and multispecies justice. I discuss the applicability of RoN to the Antarctic and how the core components of RoN, namely a body of rights, legal personality, guardianship, and self-ownership, could be incorporated into the region’s environmental governance based on ecocentrism and multispecies justice, introducing what a just and ethical environmental protection framework might look like for the Antarctic. Taking the rights and interests of Antarctic non-human residents into consideration in decision-making would meet the criteria of RoN, based on guardianship, and democratic governance. Finally, I offer future-oriented policy and law recommendations, for a move towards a more just and ecocentric governance in the Antarctic. They aim at providing realistic and feasible actions to safeguard the Antarctic environment in the short, intermediate, and, when relevant, long term.

The Ecuadorian Constitutional Court published its judgment in the case of the Los Cedros forest, a protected cloud forest of great biodiversity in the Andean mountains of Ecuador. This judgment revokes environmental permits previously granted to two mining concessions in the Bosque Protector Los Cedros reserve. The Court ruled that the mining permits in question had not only violated several constitutional rights of communities in the area but also – most remarkably – the rights of mother nature (Pacha Mama). It specifically granted these rights to the Los Cedros Reserve. While the judgment has received international recognition, there is still some uncertainty regarding future applications of this unusual, non-anthropocentric legal standard set by the Court to protect the rights of mother nature.

The 'Sala de la Corte Provincial' - a provincial court in Ecuador - became the first court ever to vindicate the recently constitutionalized rights of nature. Recognizing the indisputable importance of the rights of nature for present and future generations, the court held the provincial government liable for flooding damages caused by dumping of construction debris. This judicial victory is arguably overshadowed by challenges facing the plaintifs in seeing the court's order enforced, however. A subsequest case bears witness to the judiciary's vindication of rights of nature in Ecuador with ever increasing legal effect.

This chapter focuses on the processes of recognition of the Rights of Nature that have taken place in recent years, emphasizing the Latin American case. It is argued that this recognition can enrich socio-legal and ethical debates and thus enhance the defence of the natural world. The chapter examines the extent to which the rights of nature are recognised in some Latin American countries and the degree to which these ideas have circulated into the international regulatory space. It also argues that the Anthropocene presents a new opportunity for real and integrative collaboration among natural and social sciences and the humanities as well as the different types of knowledge and worldviews existing in our world, especially those of Indigenous Peoples. Finally, it argues that it is possible to consider a slow process of democratization of environmental law that implies several challenges for socio-legal research.

Despite the proliferation of environmental legislation, the destruction of the natural world persists and even worsens. We think that, an essential reason for this situation is that most normative frameworks treat nature as an object, and thus tend towards an approach that does not protect the environment but leads to the commercialization of nature's ecosystems. It is becoming increasingly clear that the current environmental regulations are the result of the dualistic, mechanistic and anthropocentric vision, according to which humanity is the master and owner of nature, so that environmental law remains seriously anchored in its philosophical preconceptions, maintaining over time the unwavering belief of private property as the sole guardian of the environment, of the idea that nature must be protected and valued only from the perspective of its usefulness. (Armstrong, 2012) (Gutwirth, 2001) (Darpo, 2021) That is why the recognition of the Rights of Nature together with the Human Rights aims to change this paradigm. One positive aspect, even if only at the discourse and political level, is that, in the last period it is observed that the anthropocentric approach that commodities ecosystems is increasingly questioned, while the holistic, dynamic and multidimensional approach, which allows the support and protection of nature, is gradually emerging. In this paper, we will present and analyse how the recognition of the Rights of Nature together with Human Rights can lead through changing the old paradigm. And the reason why the anthropocentric approach of nature and ecosystems as commodity is frequently questioned, in contrast to the holistic, dynamic and multidimensional approach, which allows the support and protection of nature. The Rights of Nature aim at a complete overhaul of the legal order regarding the old paradigms and the recognition of the dignity of the natural world. Despite serious criticism, nature is becoming, slowly but surely, the subject of full rights, rights considered as not affecting human rights, but only complement logic, as the protection of nature is ultimately limited to the people’s protection, the present and the future of mankind. The Rights of Nature involve a new approach of environmental law, through which the nature no longer expresses the set of resources that can be used by humans, but a living subject that possesses its own interests and rights. We point out that the issue of claiming the Rights of Nature arose in the international arena in the context of the Rio+20 Ecological Summit, under the impetus of the Bolivia initiative at the end of 2011, materialized in the proposal entitled Rights of Nature, an approach in full compliance with other significantly international documents and texts (such as: the World Charter for Nature from 1982, the Rio de Janeiro Declaration from 1992, the Earth Charter adopted in 2000, the People's Summit on Climate Change and Mother Earth's Rights to Cochabamba in 2010. Of course, the issue of claiming the Rights of Nature was taken over by a lot of social movements, but also vehemently rejected and considered to be incompatible with an emancipatory project, then materialized at the level of normative acts and jurisprudence. In this paper, we will examine the status of the Rights of Nature, trying to identify a number of central themes, unifying principles, and relevant distinctions of how the discourse on these rights has been sustained in law, philosophy, and the social sciences field.

Are rights of nature radical enough for ecological law in light of inherent features of rights-based frameworks and the metaphor of giving legal personality to nature? These features reflect anthropocentrism in rights of nature, whereas ecological law is grounded in ecocentrism. In this chapter, the case for granting rights of nature is reviewed, with increasing recognition of rights of nature seen as a welcome trend. Next, problems with defining rights of nature as giving legal personhood to nature within existing rights-based legal systems are presented and analyzed. A key concern is with erosion of nature’s rights as they face off against other rights in predominantly anthropocentric legal systems. Third, the novel proposal of giving legal naturehood to people is analyzed in detail, including consideration of challenges in defining rights of nature in this way. Indigenous legal traditions help inform this analysis. Although legal naturehood for humans is consistent with human-inclusive ecocentrism, it is not a well-recognized feature of contemporary law. Thus, recognizing legal naturehood for humans will be a long-term endeavor involving major shifts in worldviews regarding the human-nature relationship. Meanwhile, rights of nature are most useful as a transitional concept on the way to full development of ecological law.

Amidst the developing and progressive world that ensures the balance of needs-rights- duties and politics for human rights i.e. to attain the highest form of self-actualization, the world has truly become anthropocentric. It is only about human beings as such. But, in this process, what we often forget is the reason human beings exist- mother earth or nature. The paper seeks to take a break from anthropocentrism and take a journey of and through ecocentrism that would finally enable human beings to take a step forwards in fulfilling the duties of humans in the truest sense. The paper hopes to contribute to the emerging earth jurisprudence and elaborates on the path that has been traversed and the work yet to be done, both from a philosophical and legal point of view. The paper is primarily a work of doctrinal research using the analytical mode of research to present the developing jurisprudence in the field of earth justice.

The world is undergoing a normative shift in thinking about how we legally define our natural world. Since 2006, governments around the world have adopted legal provisions (laws and court rulings) recognizing Nature as a subject with inalienable rights. Rights of Nature (RoN) legal provisions now exist in Bolivia, Colombia, Ecuador, India, Mexico, New Zealand, and the US. Initiatives also exist to recognize RoN internationally, including the UN Harmony with Nature Initiative, the proposed UN Declaration of the Rights of Mother Earth, and the proposed International Environment Court.

This Article contrasts two theoretically distinct approaches to pursuing related objectives of environmental protection: the public trust doctrine and the rights of nature movement. It reviews the development of public trust and rights of nature principles in both domestic and international legal contexts, and explores points of theoretical commonality and contrast between the two, giving special attention to the opposing systems of environmental ethics from which the anthropocentric public trust and ecocentric rights of nature principles arise. The marked jurisdictional variation associated with both approaches suggests their evolving and inchoate nature as a guarantor of environmental rights. Moreover, both are especially oriented toward the protection of waterways, suggesting the limitations of conventional environmental law to provide adequate protection, and the resulting resort to alternative means. After reviewing the historical origins of the public trust doctrine in Roman and English common law, the article recounts its reception and development in U.S. law, leading to extraordinary jurisdictional diversity along the axes of the resources to which the trust applies, what values the trust protects, what mechanisms of law vindicate trust principles, and diverging legal theories in different states about the nature of the doctrine itself. It offers a snapshot of the diversity of the doctrine in sample states of California, Idaho, Pennsylvania, Michigan, Colorado, Hawaii, and Florida, and then reviews the state of public trust principles in nations beyond the United States. It then provides an overview of the rights of nature movement, both internationally and domestically. It provides the first scholarly survey of major rights of nature laws enacted throughout the world, and then reviews a series of local rights of nature bills introduced and enacted in American municipalities and Native American tribes, as well as judicial and legislative efforts to block them. It especially focuses on unfolding disputes in Florida, where multiple local governments are experimenting with rights of nature ordinances, and Orange County voters adopted a Bill of Rights charter amendment to protect the local river system from extraction in the same year that the state legislature statutorily preempted local rights of nature ordinances from effect. Finally, it compares and contrasts the two approaches, considering how these diverging anthropocentric and biocentric frames of reference provide different answers to basic questions of environmental management. It asks whether the doctrines can provide mutual support or are destined to undermine one another. It also considers the ways each model is used as a tool of political advocacy in legislative and administrative contexts beyond litigation. Both partner failures in litigation with more promising impacts in the political arena, where the motivating ideas can become a galvanizing force for policy change. Indeed, the enormous jurisdictional variation among both approaches—each a mosaic, rather than a monolith—signals the extent to which they are still evolving, and may long remain inchoate vessels of advocacy into which the champions of vulnerable environmental values pour both their frustrations and their hopes.

As pressures on water resources increase, the demand for innovative institutional arrangements, which address the overuse of water, and underprovision of ecosystem health, is rising. One new and emerging approach is the use of legal personality to protect water systems in law through the granting of legal rights to rivers. This constitutes a significant development in the fields of environmental law and water resources management, yet little analysis is available of how the approach has been used and applied. We critically examine the new legal rights for rivers using three case studies from Australia, New Zealand, and India. We analyze how legal rights have been created in each case, and the complexity of enforcing these legal rights to protect the rivers. We conclude that legal personality could be a useful alternative approach for river management, provided that the new legal rights are given sufficient force and effect.

Is it possible to use constitutional rights to protect the intrinsic value of nature? This question should seem somewhat paradoxical. Constitutional rights are, by their very nature, anthropocentric—they confer a right to people and to people only. This Note arues, nonetheless, that it is possible to use constitutional environmental rights to defend nature from environmental harm. Many countries (and some U.S. states) purport to grant their citizens a constitutional right to a healthy envrionment. These constitutional environmental rights remain largely untested in the courts; however, when they have been invoked, most courts have construed the right very narrowly. The courts hold that the right to a healthy environment only restricts state action that is likely to cause environmental harm that creates a significant threat to human health, such as pollution.