By

According to earth system scientists, mankind finds itself at the beginning of a new geological epoch: the Anthropocene. The Anthropocene is characterized by the significant impact human influences have on the disruption of the Earth’s physical, biological, and chemical systems. Some of the damage caused by humans is now irreversible. Although there is a vast body of (international) environmental law, it does not seem to be enough. Some legal scholars blame the anthropocentric nature of international environmental law. They argue it only protects the parts of nature that are of value for humans and that international environmental law does not recognise the intrinsic value of nature. In 1972, Christopher Stone published his paper Should Trees Have Standing, advocating for rights of nature. It launched a worldwide debate on the legal basis for rights of nature. Rights of nature advocates argue for a legal system that recognises the intrinsic value of nature and acknowledges that nature in itself has rights that derive from existence itself. For example, nature should have the right to be, the right to habitat, and the right to fulfil its role in the ever-renewing processes of the Earth community. Another example of attributing legal rights to nature is through legal personhood. Admittedly, the idea of granting legal personhood may sound abstract. Even if nature were to have legal personhood, it would still need humans to speak on its behalf. Another question that arises is if nature has rights, does it have duties as well? But before you write the concept of rights of nature off as unrealistic, unwanted, or utopic, bear in mind that this would not be the first time we attribute legal personhood to non-human entities. Corporations, for example, have had legal personhood for centuries, as do nation-states. The difference with nature is that corporations and states are human inventions. Furthermore, we have managed to think of ways to represent natural persons that cannot represent themselves, such as children or incapacitated humans.

Existing examples show that rights of nature may not be as unaccustomed as they might seem at first glance. In New-Zealand, former national park Te Urewera and the Whanganui River were granted legal personhood. In the Whanganui River Claims Settlement, it is recognised that the Whanganui River is a legal person, called Te Awa Tupua and that it has all the rights, powers, duties, and liabilities of a legal person. The Whanganui River Claims Settlement acknowledges that the river is an “indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements.” The river speaks through a representative body, comprised of a Maori nominated representative and a representative nominated by the Crown. All parts owned by the Crown are transferred back to Te Awa Tupua, with the exclusion of legal roads and railway structure and parts of Te Awa Tupua cannot be alienated. The river is liable as an owner and is obliged to pay taxes, just like any other legal person. Whanganui River Claims Settlement was essentially the outcome of decades of legal disputes over the Maori’s ancestral lands, where the Crown refused to give the Maori ownership over the lands and the parties came to a compromise by granting the river legal rights of its own.

In Ecuador, rights of nature are recognised not through legislation, but by amending the constitution. The 2008 constitution establishes nature’s right to exist, maintain and regenerate its “life cycles, structures, functions and evolutionary processes”. Ecuador is home to various indigenous populations and this constitution is an attempt to integrate indigenous views on human-nature relationships into the legal system. It does so by recognising the rights of Pachamama, which translates roughly to “mother Earth”. It is to be understood in a holistic approach, where there is no distinction between humans and nature. Included in the constitution is inter alia the right to be restored from harm. Unlike Te Awa Tupua, the constitution of Ecuador does not invoke a representative body, any person may demand public authorities to apply the rights of nature.

Rights of nature should not be seen as a panacea to combat environmental degradation. Nevertheless, acknowledging rights of nature could result in a paradigm shift in our understanding of human-nature relationships. Furthermore, with rights of nature issues regarding legal standing in environmental disputes could be circumvented. Rights of Nature will not fix everything, but neither will our current legal environmental framework. Perhaps it is time for an international environmental system that puts the Earth’s interest first.

About the Author

 

Leave a Reply

SecJure