Literature Review

This chapter surveys a range of examples whereby rivers have been given legal personality or similar rights, seemingly in an effort to uphold human responsibility to better protect them from degradation. The examples are first drawn from the United States of America, where nature has been given a range of rights, in order to illustrate key rights of nature arguments. Then four examples of rivers in different countries are addressed: the Vilcabamba River in Ecuador, the Whanganui River in Aotearoa New Zealand, the Ganges River in India, and the Atrato River in Columbia. Two of these examples emphasise the rights of the rivers and two emphasise duties and responsibilities, while three of them create a separate legal personality for the river. The tools used to protect each of these rivers are slightly different from each other and they illustrate interesting comparisons and likely lessons, even though they are still very new. A key lesson from this difference is that rights – including rights for nature – are useful tools, but also, that collective responsibility may be even more useful. All of the examples in this paper can help our societies and their legal systems evolve to protect nature more effectively and engender a greater appreciation of its importance. But explicit frameworks and tools of collective responsibility may provide a clearer path to the paradigm shift that is necessary to better respect humans’ role within nature and ecosystems within which we live. Any framework or tool chosen needs to support a paradigm of collective responsibility and should be carefully designed and worded so as not to obscure or distract from that.

This article is structured in four substantive parts. Section A identifies the rationale underpinning environmental personhood by analyzing the merits of various arguments in support of conferring rights on nature. Section B evaluates the types of rights of nature that have been entrenched and the corresponding standing mechanisms. A consideration of the methods by which rights of nature have been conferred, and the respective advantages and limitations of each mechanism, is provided in Section C. Finally, Section D provides a summary of curial decisions upholding the rights of nature and a discussion on the role of domestic courts in expanding rights of nature jurisprudence.

The emerging legal theory known as 'Earth Jurisprudece' has grown exponentially in the last decade. One of the most notable proposals of this novel legal thoery is the attribution of subjective legal status to nature, a proposal that has already been legislated in a number of jurisdictions as discussed below. The recognition of nature as a subject of and with rights raises a number of questions, most notably concerning the issue of agency of and on behalf of nature. Similar questions have been already explored by the animal rights discourse, in its attempt to confer subjective legal status to animals. The importance of the intersection between 'Earth Jurisprudence' and animal rights is thus readily apparent. Emerging scientific research has revealed that plants shows all the traditional indicators of sentience. This casts doubt upon the utility of the traditional rigid division made between plants and animals. It also suggests that sentience is a contingent and fluid concept; one that depends upon a constantly changing combination of scientific and cultural assumptions. These developments suggest that the fundamental proposal of 'Earth Jurisprudence', that all things have rights by virtue of their very existence, may not need to be based on such as 'sentience', but may be used as the premise for a radical challenge to many anthropocentric legal principles. In doing so, 'Earth Jurisprudence' can learn from the legal tradition that has developed around the concept of animal rights, while at the same time stretching all previously established boundaries that traditionally extended rights exclusively to non-human animals alone.

One of the most enduring stories of the Bible, mirrored in the stories of other faiths as well, is that of Noah loading his Ark, saving the creatures of the known world. Many of those mentioned were of little use to Noah, including “everything that creeps on the ground.” He certainly couldn’t eat them all. Some were so tiny he could not even have known they were there. Yet he saved them, every one. Which raises the question, why would God have done this? And why would the story— whether read as fable, gospel, or the history of a great Mesopotamian flood—have remained so deeply embedded some two millennia after the time of Christ? These issues lay lurking in the rear guard of Western civilization, marginally relevant, until quite recently when they have come again to the fore. Noah is back, not just the notion of humans protecting nature, but the elusive reason why. And the answer emerging, one not even dared to be articulated at some points in the journey, is that these creatures, all creatures, not just the useful ones, not just handsome or sentient ones, including the habitats on which they depend, entire ecosystems, have their own right to board the Ark, as well, a protected right, to be. To some, the proposition is ridiculous. To others it could save the planet.

The development of a new international legally binding instrument for the conservation and sustainable use of marine biodiversity beyond national jurisdiction (BBNJ agreement) is in the final negotiation phase. Legal recognition of rights of nature is emerging worldwide as a fresh imperative to preserve ecological integrity, safeguard human wellbeing, broaden participation in decision-making, and give a voice to nature – but so far exclusively within national jurisdiction. In this paper, we consider how a Rights of Nature perspective might inform the BBNJ agreement. We examine Rights of Nature laws and identify four characteristics relating to: i) rights; ii) connectivity; iii) reciprocity; and iv) representation and implementation. We argue that a Rights of Nature perspective can reinforce existing ocean governance norms, inspire new measures to enhance the effectiveness and equitability of the BBNJ agreement and enable global ocean stewardship in ABNJ.

This article examines the concept of granting legal rights to nature as a strategy for more effective environmental protection in the era of the Anthropocene. Following decades of debate over the possibility and consequences of natural objects becoming legal rights holders, a number of countries have recently implemented rights of nature laws in their national legal systems. Comparing two of these examples – a constitutional amendment in Ecuador and recently transposed legislation in New Zealand – will help in understanding the potential for and challenges in the implementation of this concept. On the basis of the findings of this comparison the article further analyzes the possibility of legal reform in a European country, using Germany by way of example. This analysis demonstrates that the realization of rights of nature in Europe is faced with many obstacles as it contests institutional and legal frameworks that are deeply rooted in Western individual rights doctrines and neoliberal economic models. Nevertheless, the holistic approach of expanding the number of rights-bearing subjects beyond an anthropocentric framework can allow for more serious consideration of environmental interests, something that aligns with the German narrative of recognizing nature's intrinsic value in law and the need for effective environmental protection measures.

In 2008, Ecuador became the first country to grant legal rights to nature. In thisarticle, I examine how this happened. I show that while proponents of nature’s rights acted during a key political moment, their efforts were successful due to the presence of environmentalist social movements that elevated the environmental agenda at the national level during prior decades, and due to the power of indigenous organizations and their call to recognize Ecuador as a “plurinational” polity, demanding respect for indigenous territories and ways of life and incorporating politicized versions of indigenous beliefs about the environment. The study considers the consequences of mobilization for legal innovation and institutional change, and shows the complexity of struggles over the environment in the global South. It is based on research at the Ecuadorian National Legislative Assembly archive, semistructured interviews with respondents involved in the politics of nature and the constitutional assembly, and secondary historical sources.

Scientific evidence indicates that the global environmental crisis is accelerating and that environmental laws have not been able to reverse the trend. A movement to recognize nature as a rights holder argues that existing laws regulate, rather than stop, the destruction of the natural world. Instead of incrementally reforming such laws, a growing number of jurisdictions around the world have recognized rights of nature. This may better protect natural systems, though questions remain and contributions from various disciplines will be necessary to implement this rights revolution and ensure its effectiveness.

Over two decades ago, Professor Christopher Stone asked what turned out to be a question of enduring interest: should trees have standing? His question was recently answered in the affirmative by a creek in Pennsylvania, which successfully intervened in a lawsuit between an energy company and a local township to prevent the lifting of a ban against drilling oil and gas wastewater wells. Using that intervention, this Article examines whether such an initiative might succeed on a broader scale. The Article parses the structure, language, and punctuation of Article III, as well as various theories of nonhuman personhood to see if, like corporations, the Constitution might be sufficiently capacious to allow nature direct access to Article III courts. Finding toeholds in these theories, the Article identifies some institutional and practical problems with allowing nature to appear directly in court. The Article suggests possible answers to these problems, such as limiting the type of cases brought by nature to those that involve important and/or irreplaceable resources threatened by government inaction and requiring that nature must be represented by lawyers who have sufficient expertise, commitment, and resources to prosecute her interests. While success is not guaranteed, nor can it ever be, the author hopes that others, like the lawyers representing Little Mahoning Creek, will petition for judicial relief in nature‘s name. Given the rigidity and hostility of the current Court‘s standing jurisprudence, the intransigence of Congress, and the over-crowded agenda of the Executive Branch, this may be the only way to protect our disappearing natural resources.

Throughout the last thirty years bushfires or wildfires have increased globally with devastating impacts on ecosystems, human habitats and greenhouse gas emissions. The recording of unprecedented temperatures coupled with the warming of international oceans, and the melting of polar icecaps from anthropocentric climate change are major contributors to the increase of global wildfires that are forecasted to worsen unless urgent political intervention reduces greenhouse gas emissions. The state and corporate actors that enable widespread toxic emissions have been referred to as ‘climate criminals’ within discourses of ecocide and green criminology. This article adopts a green criminological lens to the emerging concept of ‘ecocide’ to examine political leaders and their mismanagement of devastating bushfires. Through a detailed interrogation of Australia’s Royal Commission into National Natural Disaster Arrangements it traces the devastating Summer events of 2019/2020 and concludes that political inaction underpinned by fossil fuel economic priorities were instrumental in creating the contexts for a preventable environmental and human catastrophe.

This paper applies English School theory to explain the failure of efforts to establish ecocide as the fifth core international crime in the Rome Statute. It argues that while there is an emerging norm of environmental responsibility in international politics, the way this norm has been codified into laws has been influenced by two, arguably ‘stronger’ norms: the market and human rights. These two institutions of the international society have constrained the emergence of the norm of environmental responsibility. This has resulted in the establishment of utilitarian and anthropocentric environmental laws, rather than ‘ecocentric’ laws, as advocated by environmental lawyer Polly Higgins.

While recognizing economic development is important, it is necessary to strike a balance between such activities and its effect on the environment. With industrialization and economic prosperity being the underlining goals of various governments in various jurisdiction, the author indicates that these activities be carried out from an ecocentric view point, focusing on the importance of rights to nature and the problem of ecocide. History reveals the negative impact such activities have had on the environment. Environmental protections have been given international recognition; however, the modern approach of environmental activism has to be incorporated in the scheme of things. The author carefully explains the importance for the domestic and international community to move from an anthropocentric standard to an ecocentric one, by providing and statutorily recognizing the intrinsic value for nature. This is imperative in order to prevent events that have caused large scale destruction on the environment from repeating itself and preserve the original state of the earth for the benefit of both human and nonhuman life forms present in the ecosystem.