Literature Review

The Escazú Agreement is the first environmental treaty in Latin America and the Caribbean. It is also the first in the world to protect environmental human rights defenders. This treaty presents an exciting prospect for the protection of the right to a healthy environment domestically, regionally, and internationally. This article examines how the Escazú Agreement will be integrated into the existing normative framework set up by the Advisory Opinion on the Environment and Human Rights (OC-23/17) and the Lhaka Honhat (Nuestra Tierra) v. Argentina case. The article then discusses the Escazú Agreement in a substantive manner with an expansive discussion of key protections enumerated in the agreement. Finally, it provides a background on the Inter-American System for the Protection of Human Rights.

Chile is part of the phenomenon of Environmental Constitutionalism developed in the Latin American region. Thus its Political Constitution contemplates the right of people to live in an environment free of contamination and establishes duties for the state regarding the law and the protection of the environment. However, this formula has been deficient, which warrants rethinking the issues related to the environment at the constitutional level. This work follows this path from the study of the constitutional reform projects currently in the National Congress to systematize analysis at the service of a change that is the basis for an adequate environmental legal framework, respectful of human rights human beings and that maximizes the protection of the environment.

Brazil plays a major role in the global fight against climate change, especially because of its vast forests. However, the amount of deforestation now occurring is in great dispute. Between August 2014 and July 2015, for example, deforestation in the Amazon rainforest increased by 215% according to Imazon Research Institute. Contrarily, according to the Brazil Government, the increase was only 16%. This paper discusses the role that legislation and litigation are playing, and the roles they may and should play in the future, in combatting deforestation and other factors relevant to climate change in Brazil.

Latin America’s climate law is shaped by a slow interactional process involving multi-level competing interests. The process is influenced by, among other things, the region’s historical and material conditions, national political interests, cooperation opportunities, and transnational coalitions. States seemingly share the broad strokes of vulnerability-centred climate action but widely differ in their national approaches. Civil society, including indigenous peoples’ organisations, demands more ambitious climate legislation and its implementation, frequently using litigation as a mobilisation strategy. The reticence to delivering mitigation promises might lie in Latin America’s need to address its economic recession, which tends to be tackled with carbon-intensive activities.

In recent years, several countries have adopted a new legal approach to address eco- logical damages by granting fundamental rights to non-human natural entities. Yet, little is known about the actual impacts of this new constitutionalism of nature on environ- mental protection. This article seeks to better understand these impacts by presenting a case study of the Colombian Atrato River decision. Based on implementation reports and qualitative interviews with the river’s legal guardians and state officials, it argues that rights of nature can be an important impetus for change. However, at least in Colombia, their impacts relate less to legal standing of natural entities, as presumed in the literature, but rather to improvements in policymaking. To transform complex eco- logical crises in weak governance areas, strengthening local state institutions and inte- gral environmental policies are more important than rights of nature. But they can play a role in this regard.

Some countries incorporated broad principles of Earth jurisprudence into their constitutions or other national laws.5 In the United States, recognition of Nature’s rights has occurred at the local government level. Over the last fifteen years, communities have mobilized, non-profit organizations have provided education and assistance,6 city and county legislative bodies have adopted laws and resolutions recognizing Nature’s substantive and procedural rights,7 the people have passed laws through the initiative process, the courts have provided judicial feedback, and state governments and officials have responded. This article describes that body of work, highlights the successes and the challenges, and suggests possible lessons learned and pathways forward.

In this paper, Kotzé critiques the effectiveness of law as an institution in the Anthropocene epoch. He describes how international environmental law as we have developed it over the past few decades is no longer a satisfactory means of confronting the challenges faced by our ever-changing and increasingly interdependent planetary systems. Ultimately, Kotzé argues that we should reimagine regulation in the time of climate change through the development of a more interdisciplinary body of Earth System law, which he believes is a necessary framework to address our current socio-ecological crisis.

This paper from Hastings Environmental Law Journal examines the required paradigm shift in socio-legal philosophical thinking and the shared values between the Public Trust Doctrine and Earth Law. These legal frameworks were born from different social narratives, which greatly impacted their ability to serve the public and the Earth Community. Exploring each legal framework's origins and current practice will illuminate how the Public Trust Doctrine can bridge the gap between Western legal systems toward Earth Law--a holistic approach to justice in the context of history, society, ecology, and humanity's relationship with our planet. Earth Law focuses on the roles of beings within their ecosystem, and the requirements for ecosystems to flourish. At its core, Earth Law is a practice that acknowledges that everything is connected. Results of Earth Law includes rights for rivers, granting personhood to mountains, and acknowledging colonial wrongdoings. Given today's environmental devastation, Earth Law challenges practitioners to have incorporate healing practices. This paradigm shift will provide the necessary philosophy and legal tools to address climate change in a timely, adequate, and equitable manner. For this paradigm shift to occur, we must take control of our narrative--currently, Western binary thinking separates humanity from its habitat, Nature. Environmentalists are consistently faced with owls-versus-jobs style arguments. This false dichotomy has created modern environmental laws that permit inequitable environmental destruction, none more dramatic than climate change. By pushing a core Western legal doctrine, the Public Trust Doctrine, deeper into its own logic and values, we find Earth Law.

This paper aims to look at the role and rule of law in the making of society and, more importantly, the arguments for a shift in the paradigm from an Anthropocentric ontology to a more Earth-centered one. The paper critiques the current approach to sustainable development and environmental protection, review arguments on the Rights of Nature and explore the potential for the concept of Earth Jurisprudence building on current literature. In particular, the paper outlines that a constitutional right of nature is needed to address the challenges globally faced. Finally, the paper we also examines in detail the case study of the constitution of Ecuador where the rights of nature have been codified. It outlines some of the key issues involved in this proposed approach to new legal frameworks and make recommendations for future research.

The idea of human dominion over nature has become entrenched by the dominant rights-based interpretation of private property. Accordingly, nature is not attributed any inherent value and becomes merely the matter of a human property relationship. Earth Jurisprudence: Private Property and the Environment explores how an alternative conception of property might be instead grounded in the ecocentric concept of an Earth community. Recognising that human beings are deeply interconnected with and dependent on nature, this concept is proposed as a standard and measure for human law.This book argues that the anthropocentric institution of private property needs to be reconceived; drawing on international case law, indigenous views of property and the land use practices of agrarian communities, Peter Burdon considers how private property can be reformulated in a way that fosters duties towards nature. Using the theory of earth jurisprudence as a guide, he outlines an alternative ecocentric description of private property as a relationship between and among members of the Earth community.

Voight analyzes the question of whether the unalienable rights granted to people in the United States should be granted to nonhuman entities, ultimately concluding that allocation of an entity’s rights is determined by that entity’s value to humanity. Key to issues of environmental law is the concept of standing, which is a legal prerequisite to a party’s right to make a legal claim, bring a legal action, and seek recourse for rights violations. Previously, environmental groups have failed to establish a “direct stake in the outcome” of corporate development threatening natural resources, and no other U.S. jurisprudence has granted legal rights to aspects of the environment. Nature cannot claim legal rights without the intervention of a human whose rights have been invaded, but there is promise in establishing guardianship for nature. Additionally, it is difficult to discern rights for natural entities because they are frequently intertwined, for example, how do you separate a stream from its source, and guardianship for two separate but connected natural objects could lead to inconsistent judgments.

In this lead article, the authors build on the idea that we do not need more environmental law in response to the deteriorating health of the natural world. Rather, they argue that what is needed are different approaches to managing human relationships with the earth. They argue that the burgeoning Earth jurisprudence movement offers a deep philosophical anchor and a range of practical and multi-disciplinary approaches necessary to create law reform and societal change that will better support the natural world and human societies than our current system. The authors will outline the origins and key elements of the Earth jurisprudence movement. In addition, they explore some of the ways groups inspired by Earth laws have implemented their work. Lastly, they will provide an overview of the work being carried out by the Global Alliance for the Rights of Nature, the Earth Advocates, the Center for Earth Jurisprudence, and the Australian Earth Laws Alliance.