
Introduction
The ‘Rights of Nature’ is a theory and a movement that calls for the extension of rights and legal personhood to nature. It therefore presents the possibility of extending fundamental rights beyond humans, to nonhuman and even non-living natural entities. The movement has gained legal recognition around the world, with the most significant developments having occurred in New Zealand, Bolivia and Ecuador. The roots of the movement are in indigenous worldviews and ontologies, which conceptualize humans and the nonhuman environment as an inseparable, continuous whole. This throws the anthropocentrism of existing environmental instruments into sharp relief. Does the rights of nature movement therefore hold the key to an ecocentric reorientation of environmental law?
As revolutionary as these developments are, a question arises: can these rights be realized in practice? The example of Ecuador demonstrates that it is not realistic to expect states to implement the rights of nature without global recognition and support. However, developments within international legal fora suggest that the rights of nature movement may gain more global prominence in the future.
Could the ‘Rights of Nature’ movement challenge the anthropocentrism of environmental law?
Environmental law and policy is largely anthropocentric: although the focus may appear to be on the environment, humans remain the priority. Perhaps the most blatant example of this can be found in The 1972 Stockholm Declaration, which states: “Of all things in the world, people are the most precious” (para. 5). Even more recent and radical developments, such as the notion of the human right to a healthy environment (recognized in at least 99 constitutions), only seeks to protect the environment through its value for human well-being (Bosselman 2015: 533). The environment is hence only protected to the extent to which it serves human interests, rather than as something valuable in and of itself. The human right to a healthy environment is unlikely to have significant effects on environmental degradation unless it comes with corresponding human obligations towards the environment (Bosselman 2015: 531).
Indigenous worldviews and ontologies stand in stark contrast to this anthropocentrism. Indigenous peoples tend to conceive of themselves as a continuous part of the environment. Rather than seeing humans as separate from the environment, existing above all other species in hierarchy, in indigenous cosmovisions the focus is on the interdependence and harmony of all things (Boyd 2017). Indigenous peoples’ relationships with nature provide the basis for the rights of nature movements, which has recently gained legal recognition. Bolivia’s Mother Earth Laws identify nature’s rights as well as the responsibilities of the state and society to respect them (Boyd 2017: 192). In New Zealand, the Whanganui River, The Te Urewera National Park and Mt. Taranaki have been granted legal personhood and rights (Boyd 2017: 223). Perhaps the most revolutionary example, however, is that of Ecuador, where the rights of nature have reached the constitutional level.
In its preamble the 2008 constitution evokes ‘Pachamama’, the indigenous concept of ‘Mother Earth’, which humans are a part of and which is ‘vital’ for human existence. This in itself challenges the anthropocentrism of existing environmental law and policy, in which humans and the environment are seen as fundamentally separate. Furthermore, the constitution recognizes nature as a subject of rights, rather than a mere object: article 71 recognizes locus standi of natural entities, enabling their representation in court. Article 72 even lays out nature’s right to be restored, which creates corresponding duties for citizens and positive obligations for the state (Kotze and Calzadilla 2017: 424). The constitution therefore effectively extends ‘human’ rights to nonhumans, alongside with corresponding obligations. Considering the “legal subjectivity of natural entities” in this way effectively dissolves the binary of subjects and objects, humans and nonhumans, and therefore challenges the anthropocentrism that pervades existing environmental law (De Lucia 2015, as cited in Kotze and Calzadilla 2017: 413).
Can the ‘rights of nature’ be realized in practice?
While the recognition of the legal personhood of nature is revolutionary, the realization of these rights has proven to be challenging. Ecuador’s economy remains heavily dependent on the export of oil (45% of its total national export revenue since 1972 (Lu et al. 72)), and the anthropocentric drive for development has all but disappeared. Furthermore, as there is no constitutional normative hierarchy, the rights of nature do not have precedence over other rights and norms enshrined in the constitution. Ecuadorian judges have hence been left to grapple between the drive of economic development and the protection of nature’s rights, and this rarely ends in favour of the latter. It has been argued that in order to be realized in practice, the rights of nature would have to become a ‘grundnorm’, a guiding principle of national constitutions (Kotze and Calzadilla). Only this could enable a truly ecocentric reorientation of environmental law on a constitutional level.
A clear illustration of the difficulties of implementing the rights of nature in practice is the Yasuni-Ishpingo Tambococha Tiputini Initiative (ITT), launched in 2007. Oil reserves were discovered under the Yasuni National Park, which is depicted as “the epicentre of Ecuador’s megadiversity” (Boyd 2017: 165). Recognizing the rights and the ecological value of the park, as well as the value of the oil reserves for national development, Ecuador appealed to the international community for support (Boyd 2017: 165). The proposal was that the oil reserves under the park would not be extracted if Ecuador received half of the potential revenues. This was not realized, and hence the extraction of oil commenced in 2011 (Boyd 2017; Kotze and Calzadilla 2017).
Global recognition of the rights of nature
The failure of the ITT initiative goes to show the deeply entrenched nature of anthropocentrism globally, and the way in which economic motivations continue to override environmental concerns. This demonstrates the imperative for a global shift of values: not only does ecocentrism have to become a guiding principle on the national level, but there must also be a global paradigm shift in the way we view the environment. It is noteworthy that the states in which the rights of nature have been recognized, including Ecuador, Bolivia and New Zealand, all have sizeable indigenous populations that have gained significant political agency. This indicates that in order for indigenous ontologies and the rights of nature to gain recognition on a global level, indigenous peoples must be included in the formulation of international environmental law and policy. Indigenous peoples should be given a voice in discussions of environmental protection, both because there is much to learn from their ecocentric worldviews, and because of how much they have at stake when it comes to climate change.
Furthemore, this shift towards ecocentrism should occur from a climate justice perspective. It has been recognized that the Global North is more responsible for environmental degradation, while the effects are more acutely felt by vulnerable communities in the Global South (Rio Declaration principle 7). This has been addressed through the principle of ‘common but differentiated responsibilities’ (CBDR): taking into account the differential historical contributions of states to environmental degradation and applying the notion of global distributive justice to environmental action (Cullet 2016: 3). Applied to the example of the ITT, employing the principle of CBDR would therefore mean accounting for the disproportionate contributions of the Global North to environmental degradation, and calling on these states to support the initiative in the name of distributive justice.
There have been attempts to bring ecocentric approaches to a global level. The Earth Charter, released in 2000, was the first attempt to place humans within a ‘broader community of life’, which includes other species, natural entities and the future generations of life on Earth (Boyd 2017: 122). Furthermore, the Universal Declaration of the Rights of Mother Earth was proposed in 2010, led by Latin American nations including Bolivia and Ecuador (Boyd 2017: 206). The UN has been involved in “ongoing dialogue about living in harmony with nature” and the rights of nature (Ibid.:211). The 2012 report resulting from the Rio+20 Earth Conference, “The Future We Want” recognizes the rights of nature movement as an aspect of sustainable development (para. 39) and affirms the principle of CBDR (para. 15). These developments suggest that the rights of nature movement is gaining recognition in international legal fora.
Conclusion
In order for the rights of nature movement to challenge the anthropocentrism of environmental law, there must be global support for recognizing the inherent value of the environment and the prospect of extending legal rights to natural entities, while also bearing in mind the existing global distributive injustice. In order to achieve this, four key developments must take place. Firstly, constitutions and other national legislation that recognize the rights of nature must clarify their status in relation to other competing rights. As exemplified by Ecuador, unless this occurs, the rights of nature are likely to be overridden by conflicting, anthropocentric rights. Secondly, there must be a global paradigm shift towards ecocentrism, which could come about by giving indigenous peoples more agency over the formulation of international environmental law. Thirdly, wealthier states in the Global North must be willing to support climate action in the Global South, as demonstrated through the failure of the ITT initiative. This could occur through the recognition and implementation of the principle of CBDR. Finally, there should be a binding international instrument that recognizes the latter two shifts, or alternatively a series of successful legal cases applying the rights of nature that could act as precedent.
Developments such as the Earth Charter, the Universal Declaration of the Rights of Mother Earth and “The Future We Want” report suggest that the rights of nature and the principle of CBDR are gaining recognition on the global level. While these developments have yet to lead to a legally binding instrument or a successful legal case, the international recognition of the rights of nature is revolutionary in itself. It challenges the anthropocentric basis of all of our legal systems, shifting the focus away from states and citizens and towards the environment. As long as it becomes a global commitment, the rights of nature movement may indeed hold the key to an ecocentric reorientation of environmental law.
References
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