Literature Review

This article examines the legal and policy intersection of property rights and environmental law. Property rights are closely connected to and often in tension with many elements of environmental law and policy. Appropriate controls on the use of property rights and natural resources, and effectively managing the environmental consequences of such use, are critical in addressing the environmental challenges of our time. This paper first reviews the importance of property rights in the context of our legal, social, economic and political systems. It then examines the active use of property rights and mechanisms to address environmental challenges, including the creative and innovative use and development of new forms of property rights that have emerged in recent times. This is followed by a discussion of recent developments in restricting the use of property rights in land use and natural resource development to address environmental issues. The paper concludes with some ideas for future development of the law, and emerging new directions for future research. Throughout the paper, New Zealand will be used as a case study to reflect on the relationship between property rights and environmental protection.

Equity has become a fundamental concern in contemporary discussions on legal and socio-economic aspects of property rights. From the legal perspective, equity is seen as a reflection of distributive justice and it is taken as a matter of political deliberation on socio-economic grounds, while leaving the accomplishment of equity standards totally to legal and economic measures. In this backdrop, the importance of the concept of equity as an ethical and virtuous concern from a moral and ecological perspective has been largely neglected in the contemporary property rights discourse. This lack of attention on the moral aspect of equity in property rights permits limitless exploitation of natural resources. Failure to extend the moral aspect of equity over the entire ecological domain in a holistic approach has created a lot of failures in preserving natural environment and ensuring sustainability. Having noticed the need for scrutinizing the role of property rights in upholding equity in a broader moral and ecological ground, this chapter seeks an alternative approach to fill the gap of philosophical and ethical insights in the current understanding of the concept of equity in property rights. As a reflection of time-tested wisdom accumulated over generations, Indigenous knowledge brings a wide range of solutions to this problem. Thus, the present study aims at investigating the underlying ideological concerns embedded in the Indigenous systems of property rights in Sri Lanka, based on ante-narratives found in archival sources. Accordingly, the fundamental principle behind Indigenous systems of managing property rights which ensured sustainability was seen as the balance of interests, manifested in conciliation between rights and obligations, exploitation and conservation, and self-interests and collective interests. In fact, it shows the possibility of incorporating the moral aspect of equity into property rights through different context-appropriate strategies, upholding equity in a broader sense to promote sustainability.

In the early hours of the morning of October 21, 2019, two right-wing Catholic men broke into the church of Santa Maria in Traspontina, Rome. They stole four carved wooden statues of a naked pregnant woman that had been on display and used in a papal ceremony during the Pan-Amazonian Synod that was nearing its conclusion and threw them into the Tiber River. What was the meaning of these statues and the ceremony in the presence of the pope in which they appeared? Was this an example of syncretism, of dual religious belonging, or an exercise in what Pope Francis called “daring prudence” in terms of inculturation of the gospel? This article, the 2022 Louis J. Luzbetak Lecture at Catholic Theological Union, takes the incident of the theft of the statues and the controversy that followed as an opportunity to propose a more creative and bolder approach to the relationship between mission and culture.

Aim: To show the constitutional recognition that nature has gained in the Ecuadorian nation, which has allowed it to be subject of rights and duties as a legal novelty in the construction and evolution of the 21 st century, as well as its regulatory development within positive law and public policies.   Methods: For this, the historical-legal, analysis-synthesis and induction-deduction methods were em- ployed.   Findings: From the last decades of the 20th century, legal pluralism has become relevant due to its impact on the social scene. While having various orientations and positions, Philosophy of Law and Sociology deal with the definition of new theoretical constructs required to address the essence of legal pluralism in the current context, reevaluating it and providing new aspects of analysis.   Conclusions: The Ecuadorian State guarantees the conservation and development of the indigenous peoples’ traditional forms of coexistence and social organization since they constitute an expression of interculturality. This has had a positive effect on the constitutional protection of nature and its regulatory development based on constitutional texts.

Rights of Nature (RoN) have become a worldwide legal phenomenon in which Nature and ecosystems are recognised as legal entities which have rights, duties, and liabilities. This eco-centric legal discourse attempts to shift away from anthropocentric conceptualisations of Nature as ‘property’ or a ‘commodity’ to be exploited for economic gain. RoN have characteristically been ideated outside Western legal cultures, where Nature is largely considered an object, rather than a subject. Subjectivising Nature, in accordance with non-Western knowledges (epistemologies) and worldviews (cosmovisions), seeks to reframe human-Nature relations in harmony with one another. RoN have been emblematised by innovative legal precedents such as the 2008 constitutionalisation of Pachamama in Ecuador, 2010/2012 recognition of rights to Mother Earth in Bolivia, and the legal personality of rivers in countries such as Aotearoa New Zealand (ANZ), India, Bangladesh, to name a few paradigmatic examples. Courts have played a paramount role in promoting and bolstering such processes of legal innovation. Hence, RoN provide a fruitful testing ground for investigating the extent to which inter-judicial exchanges between domestic courts in jurisdictions formally submitted to colonial domination are promoting the diffusion of non-Western legal epistemologies (jurisprudences). In the context of my doctoral research, I test this hypothesis in two intertwined ways. Firstly, by understanding to what extent the diffusion of RoN epistemologies is contributing to the development of genuinely cosmopolitan jurisprudences[i] in borrowing jurisdictions. Secondly, by investigating whether the application of RoN in these jurisdictions are overcoming tensions between legal traditions by hampering or accommodating legal ecumenism.

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In this chapter Moyo addresses an important subject of ecological debt which he argues is owed by both the Global North and the Global East to Africa. Arguing from a capitalogenic perspective, Moyo advances the notion that the ecological debt is a result of the operations of the global agents and beneficiaries of Africa’s resources who have been involved in ecological destruction of the continent for more than 500 years of slavery, colonialism, apartheidism, neo-imperialism, globalisation, and globalism. This critique does not spare the emerging and re-emerging economies of the Global East which are viewed as sub-imperialist not dissimilar to the Western extractivists. Moyo also draws the attention of the reader to the contradictions that are associated with global climate finance which is provided by the Euro-Western states in the form of loans thereby reproducing debt colonialism amid ecological destruction. Moyo stresses that the proposed solutions to climate financing such as green bonds, nature swaps, blue bonds, catastrophe bonds, and nature performance bonds are predominantly techno-managerial and they are pursued within the neo-liberal system which is itself guilty of perpetuating the marginalisation, pauperisation, and subalternisation of Africa and its peoples from the global geoeconomic governance.

This study claims that epistemologies of the North and South hold contradictory perceptions vis-à-vis nature. Studying these perceptions is the interest of this present paper since it argues that Northern epistemologies adopt an objectifying visualization of nature compared with Southern epistemologies which hold an earthly centered and biocentric attitude regarding nature. This paper starts from the belief that nature is indispensable for the existence of Man on this planet and, hence, must be preserved for the coming generations. For epistemologies of the North, the research analyzes the work of Descartes who talked about res extensa and res cogitans, Rousseau who discussed the importance of the social contract in the organization of modern societies and Adam Smith who contributed in the development of capitalism. For epistemologies of the South, it refers to terms like pantheism which claims that God is everywhere, sumak kawsay or Pachamama which consider nature and earth as a mother that cares for her children. Utilizing the comparative approach in critiquing the two epistemologies, the research concludes that epistemologies of the South and the North must interfere and interact to learn from each other. This is very important for the development of knowledge in general and the preservation of nature in particular.

The rising tide of technological progress has led to an increase in technological disasters that harm the environment, prompting global concern. Initially, the response to these disasters was centred on relief and compensation, but the focus has now shifted to preventive measures for environmental protection. Environmental protection involves a multifaceted strategy, encompassing various legal agreements, public engagement, and penalty enforcement. Social and economic consequences are also significant aspects of environmental preservation. Criminal law plays a pivotal role in safeguarding the environment. Environmental and human rights issues often overlap, as human well-being and access to basic needs are linked to the environment's state. Preserving the environment is vital for maintaining acceptable living conditions and safeguarding human rights, which are already covered by international legal frameworks. International criminal liability is closely linked to international humanitarian law and human rights law. After World War II, the Tokyo and Nuremberg Tribunals addressed serious offences, and later developments included the Genocide Convention and Adhoc Tribunals for Rwanda and Yugoslavia, expanding the scope of international criminal liability. This article is separated into two main portions. The initial examines international criminal law from the perspective of environmental protection, while the second explores environmental safeguarding during armed conflicts within the background of international human rights.

Abstract: As the governments of the United States, Russia, and China signal a renewed emphasis on great power competition, tensions among three leading military and nuclear powers are rising. Mounting tensions portend an increase in proxy conflicts, raising concerns about support for possible atrocity crimes of proxies. As states formulate their approaches to great power proxy conflict, they would do well to consider the possibility of their officials facing liability for aiding and abetting atrocity crimes. This paper focuses on aiding and abetting liability under international criminal law through the lens of great power proxy conflict. It argues that proxy conflict among great powers is likely, that it will probably contribute to atrocity crimes, and that states have not taken sufficient measures to ensure they do not contribute to the commission of atrocities. While this paper deals with the United States, Russia, and China, it especially focuses on recommendations and implications for the U.S. government. Section I discusses the rise of great power competition as the driving force in international politics, argues that great power competition will likely manifest as proxy conflict between great powers, and discusses the relationship between proxy conflict and liability for atrocity crimes. Section H analyzes the elements of aiding and abetting liability through the lens of three debates among legal scholars and judges that bear particular relevance for individual liability in the context of proxy conflict among great powers. Section III examines the relationships between the governments of the United States, Russia, and China and the International Criminal Court. The Section then outlines the ongoing legal debate regarding whether the ICC can properly assert jurisdiction over the nationals of those and other non-party states as a matter of customary international law. Section IV reflects on the practical implications of the paper's findings and recommends policies that the United States should adopt in light of those findings.

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This article emphasises the need of improving environmental protection through the application of international criminal law, as described in the International Criminal Court's Rome Statute. After offering a brief summary of how international criminal law treats environmental protection during both times of war and peace, it is clear that the existing system falls short of maintaining effective environmental safeguards. This study contends that there is no compelling reason in international criminal law to regard environmental harm differently depending on whether it happens during war or peacetime. Instead, it indicates that using aneco-centric approach to environmental protection, which priorities the environment overhuman interests, will improve environmental protection more successfully. As a result, thepaper proposes for the Rome Statute to include a new comprehensive and eco-centric international crime targeting environmental harm. The paper then examines previous suggestions for such a crime and provides insights into its distinctive qualities. It focuses on identifying the level of severity necessary for the new crime and defines the fundamental mental state (mens rea) conditions that must be met.