Literature Review

In the past decade, there has been a proliferation of discourse advocating for greater legal protection for the Earth in the form of ‘the rights of nature’. This article critically examines local movements to recognise the ‘the rights of nature’ through critical discourse analysis, focussing on local Community Bills of Rights and localised Rights of Nature ordinances sponsored by the Community Environmental Legal Defense Fund (CELDF). I argue that while these measures engender the conditions for human communities to challenge the usurpation of the non-human environment by multinational corporations, their effectiveness is limited due to narrow, ideological and anthropocentric conceptualisations of the ‘natural environment’. Taken together, these conceptual shortcomings not only impede the possibility for the measures to be successful in practice, but also impede their potential to repair the disruption in the human relation to non-human beings and environments.

This paper passes in review the different pieces of legislation and court judgments which were issued until now as regards rights of nature, and critically comments on their impact. In a first section, the legislation, including the constitutional texts of some countries, will be presented. In a second section, the implementation of the different measures will be discussed, also with a view, whether the EU could learn from the trend to give natural assets rights of their own. Short concluding remarks will end the contribution.

There is increasing international recognition that in the age of the Anthropocene the wellbeing and rights of humans are inextricably linked to those of natural ecosystems. For two years, international governmental and non-governmental organizations have tracked and reported “co-violations”– violations of both human rights AND rights of Nature (RoN). In the past two years, reported co-violations of human and Nature’s rights have doubled from 100 to 200 cases. Hundreds of activists from over 16 countries, including Goldman Environmental Prize winner Berta Caceres and Peruvian Maxima Acuna de Chaupe, were killed for defending Nature’s rights and the rights of communities to live in a clean ecosystem (Wilson, Bender, and Sheehan 2016, 3). UN Special Rapporteur on the Situation of Human Rights Defenders blamed this “disturbing trend” on “intensified competition for natural resources over the last decades,” noting that “in a globalized world, the quest for economic growth has resulted in a neo-colonial environment that exacerbates conflicts between communities and business actors” (United Nations 2016, 3, 23). While attention is often focused on the Global South, pressures for human and Nature’s rights are also mounting in the Global North, including in the U.S. and New Zealand cases described below. Consequently, some in the global community have concluded that a focus on human rights has left a whole in existing systems for defending rights. Increasingly, communities and governments around the world are working to plug this hole by adopting legal provisions granting rights to Nature.

This article answers the question of: Who Needs the Rights of nature? and discusses five different approaches to recognizing the legal status of nature.

The 2008 Ecuadorian Constitution built a particular system for environment protection, breaking the dominant paradigm characterized by an anthropocentric and utilitarian relation with nature. The Ecuadorian Constitution raised the nature of the condition subject of rights. Such a conception is associated to buen vivir (Sumak Kawsay in Kichwa), which relates to the ways of life and world view of native peoples. Therefore, this article aims at understanding the social construction of this understanding of nature in the context of the processes experienced in Ecuador and called New Latin American Constitutionalism. To meet the proposed objective, the methodology used was based on the survey and review of references related to the rights of nature, held in university libraries and at the Supreme Court of Ecuador, as well as on interviews with indigenous leaders, which served to guide reflections. As a result, the analysis of recent legal changes experienced in Ecuador invite us to a comparative reflection on the Brazilian environmental policy.

Human pervasiveness on the Earth System, characterised by unprecedented social and environmental crises, demands a reimagining of human-Nature relations. Emerging from Earth Jurisprudence, a Rights of Nature (RoN) approach has been proposed as a legal and conceptual mechanism to interrogate exploitative human-Nature relations and facilitate an Earth-centric transition within Western systems of law and governance. While this concept has gained recent traction in Australia, RoN creation and recognition still faces significant practical and conceptual barriers. This article presents the results of an exploratory qualitative analysis articulating the perspectives of state members of parliament, local councillors, lawyers, academics, advocates, and community volunteers to provide insight and understanding into perceived obstacles to RoN creation and recognition in Australia. Twenty-five key barriers were identified and categorised into a novel taxonomy called the Barriers and Enablers to Rights of Nature (BERN) Framework, with the most salient including: (1) Dominant Paradigms, namely anthropocentrism, economic ideologies, political ideologies and partisanship, and social and political conservatism; (2) Regulatory Obstacles, including the existing regulatory system and rights structures; (3) Vested Interests; and (4) Power, including limited opportunity to participate in decision-making, access to decision-makers, and government levels. In articulating these factors, stakeholder dissonance regarding the employment, definition, and framing of RoN was observed, indicating RoN functions as a boundary object in the Australian context. We consider how identifying RoN as a boundary object may impact advocacy, as well as the implications it may have for overcoming barriers to RoN creation and recognition.

The past 10 years have witnessed a flourishing of interdisciplinary research across the social sciences that aims to better theorize the relationships between structural racism and the deepening ecological crisis. In this article, I consider how grassroots lawyers and community activists for the ‘rights of nature’ (RoN) in the United States are transforming their discourses, legal tactics, and pedagogical strategies in the face of a national context marked by pervasive anti-Black racism. After considering how racism has historically accompanied efforts to extend moral and legal ‘personhood’ to ecosystems in ways that continue to make solidarity work with racial justice organizations vexed and difficult, I show that, despite these exclusionary legacies, RoN activists are experimenting with municipal law-making in ways that are bringing them into closer conversation with contemporary racial justice struggles. Instead of focusing narrowly on the problem of the denial of ‘rights’ to non-humans, RoN activists are increasingly concerned with the broader structural problem of state pre-emption over local decision-making and the profoundly anti-democratic nature of a state/corporate nexus that is limiting possibilities for progressive action across a wide range of justice issues. Whilst these legal experiments do not resolve enduring tensions between anti-racist and environmental struggles, they suggest important re-directions taking place among historically white environmental activists.

Recognising the rights of nature is seen by many as the paradigm shift needed to truly embed ecology and the environment into nature-based policy and management solutions to address biodiversity loss, climate change, and sustainable development. However, despite its potential, research across and beyond disciplinary boundaries remains very limited, with most located in the humanities and social sciences and often lacking connection with environmental sciences. Based on a multi-, inter-, and transdisciplinary project, we identify some critical common themes among the humanities, social sciences, and environmental sciences to support future research on the potential of the rights of nature to address contemporary social-environmental challenges. We argue that future research needs to be not only interdisciplinary but also transdisciplinary since the movement of rights of nature is often driven by and based on knowledge emerging outside of academic disciplines.

In the last 15 years, “rights of nature” as a concept and legal apparatus has spread across various sites and scales of environmental governance throughout the world. This paper examines the rights of nature phenomenon, focusing on a recent decision by the High Court of Uttarakhand, India to grant legal personhood to the Ganga (Ganges) and Yamuna rivers and associated natural entities. Arguing against “diffusionist” and “global” approaches to understanding the rights of nature phenomenon, and drawing on the concept of translocal assemblages, I emphasise the place-based specificities of these decisions in addition to their translocal connections. Through a close reading of the Uttarakhand case, I demonstrate the need to situate translocal social movements in place by attending to the manner in which “rights of nature” becomes articulated through specific practices, cultural meanings, material networks, human–environment relations, legal regimes, governance structures, and political projects in culturally and geographically specific ways with often counterintuitive outcomes. Rather than seeing “rights of nature” as a global movement or network manifesting at various scales, I consider it as a boundary object connecting translocal assemblages of environmental governance through acts of translation. In doing so, I push assemblage geographies to engage theoretical problems of difference, boundaries, and translation that have yet to be addressed in this emerging paradigm.

A growing number of jurisdictions have recently granted rights to nature. This article places the potential disruptions generated by this legal development in historical, comparative perspective. The questions that scholars are asking about rights of nature (RoN) are similar to many of those asked by historians and legal scholars about human rightsholders. These questions arise from some of the tensions within liberalism. Placing these tensions in comparative context offers a framework with which to interpret RoN developments. Doing so demonstrates, first, the capacity of the existing liberal order to incorporate challenges into already functioning structures and, second, that such efforts to manage the claims of new subjects of rights nonetheless can transform relations. In our conclusion, we argue that a comparative perspective may allay the tendency to exoticise rights of nature by examining the extent to which their development in sometime contentious and sometimes complementary relationship with democratic institutions is reflected in historical efforts to define and make meaningful the rights of human rightsholders.

The Anthropocene thesis contends that the earth has entered a new geological epoch, dominated by human action. This article examines the Anthropocene in relation to law and aesthetics, arguing that the concepts of law and the stories of law’s origins that we mobilise in this context play a significant role in rendering us sensitive or insensitive to the multifarious challenges that the Anthropocene poses to social life. In arguing against aspects of Earth Jurisprudence scholarship, which has developed a novel understanding of the ‘rights of nature’, this article argues that it is through an attention to obligations, rather than rights, that a sensitivity to the forces and relations that define the Anthropocene might be fostered. The shift from rights to obligations entails a commensurate movement from aesthetics – where questions of form, integrity and harmony predominate – to aesthesis, the study of the somatic, sensory and affective dimensions of human experience. The article concludes by arguing that it is within the contemporary city, understood as a discrete form of human and infrastructural association, that an aesthesis of obligations in the context of the Anthropocene can be most acutely perceived.

The Rights of Nature (RoN) promote a new understanding of the human environment, where natural entities are conceived as subjects with intrinsic value independent of human interests. The implementation of this idea gained momentum in the United States in 2006. One decade and a half later, the idea has spread all over the world. Despite some efforts, a sophisticated geographical inventory of the movement is missing. Building on Kauffman (2020), we identified and analysed 409 initiatives in 39 countries, creating the most comprehensive database of RoN initiatives to date. We developed a taxonomy that may guide further research. We also present two detailed maps which can help policymakers, legislators, judges, researchers, and the public at large to evaluate and compare initiatives. The findings of this investigation directly help the UN Harmony with Nature Programme and have contributed to the launch of the Eco-Jurisprudence Monitor, an online database of RoN initiatives.