Literature Review

Ecuador’s recently adopted conflict resolution techniques have aggravated the always tense encounters between Amazonian indigenous communities, oil companies and the state. The state’s governmentality project portrays these socio-environmental conflicts as mere technical–managerial issues while societal coalitions re-politicize them through territorial defense struggles. The Cofán Dureno case highlights how the self-proclaimed ‘Citizen’s Revolution’ government seeks to redefine socio-natural relationships and territorial identities, devising ‘communities of convenience’. These correspond to the state’s own images, political structure and ideology, promoting ‘community participation’ to facilitate oil extraction. Ecuador’s constitutionally recognized Rights of Nature (paradoxically installed by the same government) are analyzed with a focus on their potential for resisting socio-environmental injustice. The internationally celebrated inclusion of these rights in the Constitution was advocated by nonindigenous intellectual activists but influenced and supported by the indigenous movement. Beyond legal implications, these rights might foster an epistemic pact between indigenous and nonindigenous society to defend territories from extractive industries.

The recognition of nature's rights takes various froms, including constitutional provisions, national laws, municipal ordinances, and court decisions. Nature's legal rights go far beyond standing to sue because they encompass the right to exist, flourish, and be restored. A fundamental question is: Do these remarkable legal developments have practical consequences, or are they merely paper tigers?

A good deal of the concern over environmental protection stems from the feeling that something known as Nature has rights or needs, and that industrial society is careless of these. What is it people have in mind when they say this? How can Nature, which is not in any obvious sense a moral agent or a unified, sentient thing, have any rights? What would our social planning be like if we set about to take care of the rights of Nature in some systematic way? And, to go one step farther back, is a secular, homocentric approach to morals and values capable of articulating or defending the principles on which a theory of the rights of Nature depends? What follows is a first effort on my part to sort out my thoughts on these matters. Happily, one starts with the help of a considerable deposit of thought in the western tradition.

The recognition of the rights of nature is currently being debated in the juridical, sociological, and ethical fields. In Ecuador and Bolivia the recognition of the rights of Pachamama (Mother Earth) began in the context of constitutional and legal amendments more than a decade ago. This process was articulated with proposals presented as alternatives to global capitalism related to the indigenous worldviews known as buen vivir or vivir bien. An exploration of these processes identifies a number of challenges to socio-legal research and points to the increasing acknowledgment of the rights of nature in various countries in Latin America and other parts of the world.

Designating rights for nature is a potentially powerful way to open up the dialogue on nature conservation around the world and provide enforcement power for an ecocentric approach. Experiments using a rights-based framework have combined in-country perspectives, worldviews, and practices with legal justifications giving rights to nature. This paper looks at a fusion of legal traditions, religious worldviews, and practices of environmental protection and advocacy in the context of India. It takes two specific legal cases in India and examines the recent high-profile rulings designating the rivers Ganga, Yamuna, and their tributaries and glaciers as juristic persons. Although the rulings were stayed a few months after their issuance, they are an interesting bending of the boundaries of nature, person, and deity that produce Ganga and Yamuna as vulnerable prototypes. This paper uses interview data focusing on these cases and document and archival data to ask whether legal interventions giving rights to nature can become effective avenues for environmental activism and spiritual ecology. The paper also assesses whether these legal cases have promoted Hindu nationalism or ‘Hindutva lite’.

The Rights of Nature concept not only breaks with the anthropocentrism of existing (environmental) law; it also recognizes that nature has private interests, in addition to being of public interest. That is, whereas in classic sustainability thinking, the use of certain resources is allowed as long as public interests are not systematically/systemically harmed, rights of nature facilitate the protection of nature before planetary boundaries are transgressed. This recognition of nature as having private interests enables the framing of disagreements around ‘nature’ as matters of corrective justice, which renders the application of private legal doctrines more easily conceivable and arguably even necessary. The contributions to this Symposium Collection showcase the viability of the intersection of private law and rights of nature. Firstly, it is necessary to research how existing private law will influence the effectiveness of rights of nature. Such an exercise is undertaken by Björn Hoops, who carefully assesses what rights for the German Black Forest would mean in terms of German constitutional property law. The mirror image of this approach is to explore what impact Rights of Nature will have on private law. Such an approach is taken by Alex Putzer and co-authors in their article on the transformation of land-ownership regimes after the introduction of Rights of Nature in Ecuador and Uganda. A third line of scholarship assesses the significance of Rights of Nature for private law theory: Visa Kurki proposes a new concept of legal personhood, prompting us to think through the meaning of statements like ‘a river is a legal person’.

The multi-species turn is generating significant new opportunities for rethinking theories of justice. However, these efforts to think beyond anthropocentric approaches to justice often sit uneasily alongside the concerns of more human-centered social justice movements. Closely engaging a recent paper that outlines a research agenda for this emerging field, I argue that to take seriously the question of how to build counter-hegemonic coalitions that might ultimately be capable of translating these approaches into durable institutional forms, it is important to more fully engage Indigenous and critical race scholarship while at the same time more carefully attending to the tensions and frictions between them. Both raise questions about the ontological and political priorities of multi-species activists that deserve significantly further engagement. I advance this argument by means of short illustrative snapshots of recent debates within movements for the rights of nature in Australia and the United States.

Indigenous peoples are among the most affected by environmental injustices globally, however environmental justice theory has not yet meaningfully addressed decolonisation and the resistance of Indigenous communities against extractivism in the settler-colonial context. This paper suggests that informing environmental justice through decolonial analysis and decolonising practices can help transcend the Western ontological roots of environmental justice theories and inform a more radical and emancipatory environmental justice. The Unist’ot’en Resistance and Action Camp blocking pipelines in northwestern British Columbia, Canada, their “Reimagined Free Prior and Informed Consent protocol” and the Delgamuukw case are described to discuss limitations of the state and legal framework for accommodating a decolonial and transformative environmental justice. A decolonial analysis informed by these two moments of Wet’sewet’ten history suggests limits and adaptations to the trivalent EJ framework based on recognition, participation and distribution. It is argued that a decolonising and transformative approach to environmental justice must be based on self-governing authority, relational ontologies of nature and epistemic justice and the unsettling of power through the assertion of responsibility and care through direct action. This discussion is placed in the context of the expansion of the concept of ecological rights, for example through the enshrining of the “Rights of Nature” in the constitutions of countries such as Bolivia and Ecuador, to highlight the Inherent tensions in the translation of Indigenous cosmo-visions into legal systems based on universalist values.

We review the use of science by lawmakers and courts in implementing or rejecting legal rights for nature in Ecuador, India, the United States, and other jurisdictions where some type of rights of nature have been recognized in the legal system. We then use the “right to evolve” to exemplify how interdisciplinary work can (i) help courts effectively define what this right might entail; (ii) inform how it might be applied in different circumstances; and (iii) provide a template for how scientists and legal scholars can generate the interdisciplinary scholarship necessary to understand and implement the growing body of rights-of-nature laws, and environmental law more generally. We conclude by pointing to what further research is needed to understand and effectively implement the growing body of rights-of-nature laws.

The advent of Rights of Nature (RoN) marks a new paradigm shift in the philosophical approach to nature. As such, the concept has generated enthusiasm amongst environmentalists and legal scholars. This is not surprising since granting legal personhood to nature seems to present itself as a relative easy fix for the multitude of deficiencies of “modern” environmental law. However, when critically assessed, many of the underlying assumptions justifying a shift towards rights-based approaches to nature are open to challenge. In this paper, which takes a more critical stance on the topic of RoN, it is submitted that also the much-criticized modern environmental law is moving towards a recognition of the intrinsic value of nature, puts breaks on property rights, offers remediation actions for pure ecological damage and also increasingly grants environmental ngos wide access to courts. Moreover, on a second level, it is argued that RoN are not a legal revolution and that many of the problems Rights of Nature tries to cure – such as a lack of enforcement – will simply re-emerge if not adequately assessed within this novel paradigm.

In 2008, Ecuador became the world’s first country to include rights of Nature (RoN) in its constitution. The constitution presents RoN as a tool for building a new form of sustainable development based on the Andean Indigenous concept sumak kawsay (buen vivir in Spanish), which is rooted in the idea of living in harmony with Nature. While much is written on the ethical arguments regarding RoN (and buen vivir), few studies analyze how RoN might be implemented. We fill this gap by explaining why some efforts to apply Ecuador’s RoN laws succeeded while others failed. We compare 13 RoN lawsuits using an original framework for analyzing the pathways and strategies RoN advocates (and their opponents) use to build (and counter) momentum behind judicial processes meant to buttress the enforcement of contested RoN norms. The case descriptions and analysis draw on primary documents and in-depth interviews conducted during 2014–15. Through process tracing, we identified key structural conditions and strategic decisions shaping the outcomes in each case. Our findings as of 2016 reveal unexpected pathways of influence involving a symbiotic process among civil society, state agencies, and the courts. Surprisingly, civil society pressure was the least successful pathway, as activists lost high-profile lawsuits. Nevertheless, they facilitated judicial momentum by working on less-politicized local cases and training lower-level judges. Instrumental use of RoN laws by the state produced unintended consequences, including establishing precedent and educating judges. Knowledgable judges are unilaterally applying RoN in their sentencing, even when neither claimants nor defendants allege RoN violations. Ecuador’s cases demonstrate how “weak” RoN laws can strengthen, providing important insight into the global contestation over sustainable development and the strategies and legal tools being used to advance a post-neoliberal development agenda rooted in harmony with nature.

Is it possible to justify resource extractivism to provide progressive welfare politics and still respect the constitutional rights of nature? The Indigenous concept of Sumak Kawsay on human beings living in harmony with each other and the environment is the fundamental framing of the new constitutions of Ecuador and Bolivia. These constitutional reforms embrace strengthened proper rights of nature and similarly of ethnic rights. However, the same constitutions grant the State the right to exploit and commercialize natural resources and extractivism has increased. This study revises the tensions between welfare politics, extractivism and the rights of nature and the Indigenous peoples in the new constitutional settings of Bolivia and, particularly, Ecuador. The article argues that Sumak Kawsay challenges dominating understandings of the concepts of welfare, common good and development, and likewise that a pragmatic approach is applied by national governments towards the constitutional rights of nature amidst other human values.