Literature Review

Time and time again, Indigenous people throughout the world are faced with the need to reassert their way of life, and to “buck” political and social systems that continually marginalize their treaty rights. In this article, I explore the role of Indigenous activism at different scales—personal, tribal, and collective—to intervene in key moments to uphold treaty rights and protect Indigenous ways of life. In defending treaty rights, Indigenous peoples have become leaders in the social and environmental justice movement, particularly in relation to climate justice and fishing rights. The article recounts three ethnographies that illustrate how access to rights is wrapped up in geopolitics and the political economy. Highlighting these acts of resilience and leadership in the face of crisis is the central work of this article. The article concludes with a call to fundamentally rethink governance mechanisms and structures, to protect ecological and human health.

Do people have a right to clean air, safe drinking water, and a healthy environment? Fifty years ago, the concept of a human right to a healthy envrionment was viewed as a novel, even radical idea. Today it is widely recognized in international law and endorsed by an overwhelming proportion of countries. Even more importantly, despite their recent vintage, environmental rights are included in more than 90 national constitutions. These provisions are having a remarkable impact, ranging from stronger environmental laws and landmark court decisions to the cleanup of pollution hot spots and the provision of safe drinking water. Environmental rights and responsibilities have been a cornerstone of indigenous legal systems for millenia. Yet the right to a healthy environment is not found in pioneering human rights documents such as the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), or the International Covenant on Economic, Social, and Cultural Rights (1966). Society's awareness of the magnitude, pace, and adverse consequences of environmental degradation was not sufficiently advanced during the era when these agreements were drafted to warrant the inclusion of ecological concerns.

Examples abound of national and international legal developments that indicate growing concern and respect for animals. However, a key barrier remains: animals are not recognized as legal persons and therefore do not have standing to pursue independent legal action. This significantly limits the scope for legal redress when animals’ interests are harmed. This article examines recent attempts in the United States and Europe to establish standing for animals via strategic litigation and the barriers that have so far undermined this project. The article argues that, despite their lack of success to date, cases that seek to establish standing for animals should continue to be pursued. Societal views about the value of animals’ lives are continually evolving such that these cases may soon be successful. Furthermore, even if unsuccessful, these cases help in creating the socio-cultural space required to redefine the human–animal divide and potentially transform animals into rights bearers.

This paper argues that, in spite of recent judicial practice contributing to the integration of environmental considerations in human rights adjudication, progress in this field remains limited. This is so because of the prevailing ‘individualistic’ perspective in which human rights courts place the environmental dimension of human rights. This results in a reductionist approach which is not consistent with the inherent nature of the environment as a public good indispensable for the life and welfare of society as a whole. The article, rather than advocating the recognition of an independent right to a clean environment, presents a plea for a more imaginative approach based on the consideration of the collective-social dimension of human rights affected by environmental degradation.

This Comment advocates a shift in contemporary standing dosctrine to empower non-profit organizations with an established history of dedication to the cause and relevant expertise to serve as official guardians ad litem on behalf of nonhuman animals interests. The American legal system has numerous mechanisms for representing the rights and interests of nonhumans; any challenges inherent in extending these pre-existing mechanisms to nonhuman animals are minimal compared to an interest in the proper administration of justice. To adequately protect the statuatory rights of nonhuman animals, the legal system must recognize those statutory rights independent of humans and provide a viable means of enforcement. Moreover, the idea of a guardianship for speechless plaintiffs is not new and has been urged on behalf of the natural environment. Such a model is even more compelling as applied to nonhuman animals, because they are sentient beings with the abiliy to feel pain and exercise rational thought. Thus, animals are qualitatively from other legally protected nonhumans and therefore have interests deserving direct legal protection.

In many respects, the international system fails to protect cultural heritage. Both in times of warfare and civil strife and in times of peace, existing avenues for cultural heritage protection do not always succeed at preserving important cultural heritage sites. Even when the international community seeks to protect cultural heritage through judicial oversight, the effort is usually ex post facto and thus too late to actually preserve the destroyed cultural heritage. Challenges to cultural heritage protection are exacerbated considering that sacred spaces might not solely be a focus for preservation, but also include notions of use and protection given the spiritual significance of the site itself. Sacred space protection not only aims to preserve cultural property for the welfare of humankind writ large, but also considers the use of such space for religious practices or pilgrimages and seeks to ensure the preservation of a holy site on behalf of a particular group given its spiritual connection to a space. The unique nature of sacred space further suggests that it merits some form of international protection beyond what is available under the current cultural heritage regime. This Article will analyze potential sources for sacred space protection under the cultural heritage protection regime, noting some of the problems created by the current framework and the challenges they present for sacred space protection. The Article will then offer a potential source for protection of sacred spaces based on the international human right to freedom of religion or belief, pursuant to the current interpretation accorded to the right. Previous attempts to use the freedom of religion to protect sacred space have relied on the right when the use of the sacred space is part of a mandated and necessarily manifested religious act or when the sacred site is used by indigenous peoples. The interpretation of the right to freedom of religion or belief in this Article embraces an emerging group approach that includes indigenous people and centers on defining the contours of a belief. It also reflects broader understandings emerging in international human rights bodies and tribunals. The Article also will incorporate into its analysis a social constructivist approach to human rights, whereby the socialization process of human rights may encourage reliance on the human right to freedom of religion or belief as a potential ground for long-term sacred space protection. Reliance on freedom of religion, as opposed to cultural heritage protection, provides a relevant and conceptually-aligned basis for sacred space protection that better encapsulates the interests and meaning of necessary protection.

In 2008, Ecuador recognized the Constitutional Rights of Nature in a global first. This recognition implies a major shift in the human-nature relationship, from one between a subject with agency (humans) and an exploitable object (nature), to a more equilibrated relationship. However, the lack of a standard legal framework has left room for subjective interpretations and variable implementation. The recent widespread concessioning of pristine ecosystems to mining industries has set up an unprecedented conflict and test of these rights. Currently, a landmark case involving Los Cedros Protected Forest and mining companies has reached the Constitutional Court of Ecuador. If Ecuador’s highest Court rules in favor of Los Cedros and the Rights of Nature, it would set a legal precedent with enormous impact on biological conservation. Such a policy shift offers a novel conservation strategy, through citizen oversight and action. A ruling against Los Cedros and the Rights of Nature, while a major setback for biodiversity conservation, would be taken in stride by the active social movement supporting these goals, with the case likely moving into international courts. Meanwhile, extractive activities would continue and expand, with known consequences for biodiversity.

In the face of widespread degradation of natural resources (including deforestation), and socio-economic disparities, underserved populations from rural and indigenous spaces of the global south face challenges to conserve environmental resources. Many of these spaces, such as sacred-groves, are important to indigenous people and are deeply intertwined with their identity, worldviews and existence. This research, embracing principles of critical/cultural environmental communication, examines how indigenous people of eastern India mobilized collectively to protect their sacred environmental resources, thus improving community members’ well-being. Paying attention to engaged environmental action; critical listening and dialoguing; and local-centric participation, this research argues that contextually meaningful and community-led environmental initiatives help motivate and raise consciousness among future generations as well as among wider indigenous (and marginalized) populations.

Enforcement of the federal trust responsibility is necessary to protect Native America from environmental assault. Traditional lifeways that reach back literally thousands of years are poised in jeopary along with the natural resources upon which they depend. Across Indian country, many tribes are at the brink of losing their fish and wildlife resources, having their land and water supplies contaminated, or having their sacred sites destroyed forever. At least 317 reservations in the United States are threatened by environmental hazards. For example, the Confederated Colville Tribes of Washington, the Chippewas of Wisconsin, the Gros Ventre and Assiniboine Tribes of Montana, and several others battle massive mining projects just off reservation boundaries. The Northern Cheyenne Tribe deals with impacts from five coal strop mines, a 2,000-megawatt power plant, and potentially 16,000 new coal methane wells off its reservation. The Pyramid Lake Band of Paiutes and the Klamath, Yakama, Spokane, Salish, and Kootenai Tribes struggle to reclaim enough water in the rivers to sustain their fisheries.The Western Shoshones in Nevada confront a proposed nuclear waste dump, as well as. the existing fallout from nuclear waste testing on their aboriginal lands.6 The fishing tribes of the Columbia River Basin urge changes in hydrosystem operations to prevent the salmon species they have relied on for nearly 10,000 years from becoming extinct.7 The Hopi, Navajo, Sioux, Pueblo, Paiute, Quechan, Blackfeet, Wintu, Zuni, and perhaps dozens of other tribes now fight to protect their sacred sites from desecration. These threats to Indian country are pervasive, and the potential damage is permanent. In the treaty era, the government promised homelands that could sustain tribal lifeways, governments, and economies. But much of the natural web that supports tribal life and culture occurs beyond the boundaries of Indian country. These lands contain species that tribes hunt and fish for, roots and berries that they gather, headwaters and tributaries that flow into their reservation streams, and sacred sites. These are being destroyed at an unprecedented pace, and the pressure from industrial America is both unyielding and unbounded, coming from corporations that feed on growth. While environmental disease may sooner or later affect everyone in the United States, the impacts on Indian country are magnified, because the land base is the linchpin for tribal survival. The trust responsibility should play a role in protecting tribal lands and resources, but the trust doctrine stands in potential jeopardy today as courts collapse protective trust requirements into statutory standards.

In 2013, the Intergovernmental Panel on Climate Change (IPCC) warned the world: the observed warming of temperatures on the planet is very likely caused by human activity. All around the world, deforestation and pollution threaten the ecological equilibriums and the lives of local communities. In some places, economic projects that are harmful for the environment further infringe on ancestral territories of Indigenous groups. To tackle this problem and fight against the economic power of polluting corporations, some countries have passed laws recognizing the rights of nature. While such an idea may at first seem odd, it might not be so difficult to conceptualize it and to implement it. Many rights that we take for granted today used to be seen as implausible, impossible, even dangerous; their recognition has been the result of sometimes long and non-linear struggles against the dominant groups and their worldviews. The rights of nature might well be, one day, considered as much crucial as other rights. Still, their logic is mysterious for many. Are rights not only for those who can claim them ? What do we mean when we talk about nature – are we talking about a tree, a river, a forest, the planet? How can unconscious entities have rights ? How can even a nonliving entity have rights, and who will defend such rights?

Sacred groves are communally-protected forest fragments with significant religious connotations. These community lands attain significance due to biodiversity conservation and provide ecological services in local landscapes. However, it has often been found that interests related to sacred groves are often concentrated towards the groves with conspicuous presence, i.e. in terms of expanse, economic importance or presence of charismatic species, etc. This undermines the role played by the small groves (mostly < 1 ha) and also lead to degradation over time. This commentary analyses the role and need for conservation of small groves in local landscape scenario.

Linda Sheehan identifies as the foundational flaw of modern environmental law its understanding of nature as separate from, and having the function of serving, human beings. It is thus necessary, she argues, to transform environmental law in a way that promotes new relationships among communities and nature. That approach, she maintains, is already contained in the idea of rights. In the same way that human rights can serve to rebuild relationships between human beings, recognising nature's rights can help to rebuild a community's relationship with nature. In this comment, I would like to explore some of the connections between the recognition of the rights of nature in some Latin American countries (namely Ecuador through the Constitution of 2008 and Bolivia through the Law of Mother Earth of 2010), and what has been identified by some authors as the New Latin American Constitutionalism (NLAC). I will argue that not only the legalisation of these rights mandates a fundamentally different relationship between human beings and their natural environment, but that it is strongly connected to more general developments in Latin American constitutional law.