Literature Review

Amidst the developing and progressive world that ensures the balance of needs-rights- duties and politics for human rights i.e. to attain the highest form of self-actualization, the world has truly become anthropocentric. It is only about human beings as such. But, in this process, what we often forget is the reason human beings exist- mother earth or nature. The paper seeks to take a break from anthropocentrism and take a journey of and through ecocentrism that would finally enable human beings to take a step forwards in fulfilling the duties of humans in the truest sense. The paper hopes to contribute to the emerging earth jurisprudence and elaborates on the path that has been traversed and the work yet to be done, both from a philosophical and legal point of view. The paper is primarily a work of doctrinal research using the analytical mode of research to present the developing jurisprudence in the field of earth justice.

The world is undergoing a normative shift in thinking about how we legally define our natural world. Since 2006, governments around the world have adopted legal provisions (laws and court rulings) recognizing Nature as a subject with inalienable rights. Rights of Nature (RoN) legal provisions now exist in Bolivia, Colombia, Ecuador, India, Mexico, New Zealand, and the US. Initiatives also exist to recognize RoN internationally, including the UN Harmony with Nature Initiative, the proposed UN Declaration of the Rights of Mother Earth, and the proposed International Environment Court.

This Article contrasts two theoretically distinct approaches to pursuing related objectives of environmental protection: the public trust doctrine and the rights of nature movement. It reviews the development of public trust and rights of nature principles in both domestic and international legal contexts, and explores points of theoretical commonality and contrast between the two, giving special attention to the opposing systems of environmental ethics from which the anthropocentric public trust and ecocentric rights of nature principles arise. The marked jurisdictional variation associated with both approaches suggests their evolving and inchoate nature as a guarantor of environmental rights. Moreover, both are especially oriented toward the protection of waterways, suggesting the limitations of conventional environmental law to provide adequate protection, and the resulting resort to alternative means. After reviewing the historical origins of the public trust doctrine in Roman and English common law, the article recounts its reception and development in U.S. law, leading to extraordinary jurisdictional diversity along the axes of the resources to which the trust applies, what values the trust protects, what mechanisms of law vindicate trust principles, and diverging legal theories in different states about the nature of the doctrine itself. It offers a snapshot of the diversity of the doctrine in sample states of California, Idaho, Pennsylvania, Michigan, Colorado, Hawaii, and Florida, and then reviews the state of public trust principles in nations beyond the United States. It then provides an overview of the rights of nature movement, both internationally and domestically. It provides the first scholarly survey of major rights of nature laws enacted throughout the world, and then reviews a series of local rights of nature bills introduced and enacted in American municipalities and Native American tribes, as well as judicial and legislative efforts to block them. It especially focuses on unfolding disputes in Florida, where multiple local governments are experimenting with rights of nature ordinances, and Orange County voters adopted a Bill of Rights charter amendment to protect the local river system from extraction in the same year that the state legislature statutorily preempted local rights of nature ordinances from effect. Finally, it compares and contrasts the two approaches, considering how these diverging anthropocentric and biocentric frames of reference provide different answers to basic questions of environmental management. It asks whether the doctrines can provide mutual support or are destined to undermine one another. It also considers the ways each model is used as a tool of political advocacy in legislative and administrative contexts beyond litigation. Both partner failures in litigation with more promising impacts in the political arena, where the motivating ideas can become a galvanizing force for policy change. Indeed, the enormous jurisdictional variation among both approaches—each a mosaic, rather than a monolith—signals the extent to which they are still evolving, and may long remain inchoate vessels of advocacy into which the champions of vulnerable environmental values pour both their frustrations and their hopes.

As pressures on water resources increase, the demand for innovative institutional arrangements, which address the overuse of water, and underprovision of ecosystem health, is rising. One new and emerging approach is the use of legal personality to protect water systems in law through the granting of legal rights to rivers. This constitutes a significant development in the fields of environmental law and water resources management, yet little analysis is available of how the approach has been used and applied. We critically examine the new legal rights for rivers using three case studies from Australia, New Zealand, and India. We analyze how legal rights have been created in each case, and the complexity of enforcing these legal rights to protect the rivers. We conclude that legal personality could be a useful alternative approach for river management, provided that the new legal rights are given sufficient force and effect.

Is it possible to use constitutional rights to protect the intrinsic value of nature? This question should seem somewhat paradoxical. Constitutional rights are, by their very nature, anthropocentric—they confer a right to people and to people only. This Note arues, nonetheless, that it is possible to use constitutional environmental rights to defend nature from environmental harm. Many countries (and some U.S. states) purport to grant their citizens a constitutional right to a healthy envrionment. These constitutional environmental rights remain largely untested in the courts; however, when they have been invoked, most courts have construed the right very narrowly. The courts hold that the right to a healthy environment only restricts state action that is likely to cause environmental harm that creates a significant threat to human health, such as pollution.

This chapter surveys a range of examples whereby rivers have been given legal personality or similar rights, seemingly in an effort to uphold human responsibility to better protect them from degradation. The examples are first drawn from the United States of America, where nature has been given a range of rights, in order to illustrate key rights of nature arguments. Then four examples of rivers in different countries are addressed: the Vilcabamba River in Ecuador, the Whanganui River in Aotearoa New Zealand, the Ganges River in India, and the Atrato River in Columbia. Two of these examples emphasise the rights of the rivers and two emphasise duties and responsibilities, while three of them create a separate legal personality for the river. The tools used to protect each of these rivers are slightly different from each other and they illustrate interesting comparisons and likely lessons, even though they are still very new. A key lesson from this difference is that rights – including rights for nature – are useful tools, but also, that collective responsibility may be even more useful. All of the examples in this paper can help our societies and their legal systems evolve to protect nature more effectively and engender a greater appreciation of its importance. But explicit frameworks and tools of collective responsibility may provide a clearer path to the paradigm shift that is necessary to better respect humans’ role within nature and ecosystems within which we live. Any framework or tool chosen needs to support a paradigm of collective responsibility and should be carefully designed and worded so as not to obscure or distract from that.

This article is structured in four substantive parts. Section A identifies the rationale underpinning environmental personhood by analyzing the merits of various arguments in support of conferring rights on nature. Section B evaluates the types of rights of nature that have been entrenched and the corresponding standing mechanisms. A consideration of the methods by which rights of nature have been conferred, and the respective advantages and limitations of each mechanism, is provided in Section C. Finally, Section D provides a summary of curial decisions upholding the rights of nature and a discussion on the role of domestic courts in expanding rights of nature jurisprudence.

The emerging legal theory known as 'Earth Jurisprudece' has grown exponentially in the last decade. One of the most notable proposals of this novel legal thoery is the attribution of subjective legal status to nature, a proposal that has already been legislated in a number of jurisdictions as discussed below. The recognition of nature as a subject of and with rights raises a number of questions, most notably concerning the issue of agency of and on behalf of nature. Similar questions have been already explored by the animal rights discourse, in its attempt to confer subjective legal status to animals. The importance of the intersection between 'Earth Jurisprudence' and animal rights is thus readily apparent. Emerging scientific research has revealed that plants shows all the traditional indicators of sentience. This casts doubt upon the utility of the traditional rigid division made between plants and animals. It also suggests that sentience is a contingent and fluid concept; one that depends upon a constantly changing combination of scientific and cultural assumptions. These developments suggest that the fundamental proposal of 'Earth Jurisprudence', that all things have rights by virtue of their very existence, may not need to be based on such as 'sentience', but may be used as the premise for a radical challenge to many anthropocentric legal principles. In doing so, 'Earth Jurisprudence' can learn from the legal tradition that has developed around the concept of animal rights, while at the same time stretching all previously established boundaries that traditionally extended rights exclusively to non-human animals alone.

One of the most enduring stories of the Bible, mirrored in the stories of other faiths as well, is that of Noah loading his Ark, saving the creatures of the known world. Many of those mentioned were of little use to Noah, including “everything that creeps on the ground.” He certainly couldn’t eat them all. Some were so tiny he could not even have known they were there. Yet he saved them, every one. Which raises the question, why would God have done this? And why would the story— whether read as fable, gospel, or the history of a great Mesopotamian flood—have remained so deeply embedded some two millennia after the time of Christ? These issues lay lurking in the rear guard of Western civilization, marginally relevant, until quite recently when they have come again to the fore. Noah is back, not just the notion of humans protecting nature, but the elusive reason why. And the answer emerging, one not even dared to be articulated at some points in the journey, is that these creatures, all creatures, not just the useful ones, not just handsome or sentient ones, including the habitats on which they depend, entire ecosystems, have their own right to board the Ark, as well, a protected right, to be. To some, the proposition is ridiculous. To others it could save the planet.

The development of a new international legally binding instrument for the conservation and sustainable use of marine biodiversity beyond national jurisdiction (BBNJ agreement) is in the final negotiation phase. Legal recognition of rights of nature is emerging worldwide as a fresh imperative to preserve ecological integrity, safeguard human wellbeing, broaden participation in decision-making, and give a voice to nature – but so far exclusively within national jurisdiction. In this paper, we consider how a Rights of Nature perspective might inform the BBNJ agreement. We examine Rights of Nature laws and identify four characteristics relating to: i) rights; ii) connectivity; iii) reciprocity; and iv) representation and implementation. We argue that a Rights of Nature perspective can reinforce existing ocean governance norms, inspire new measures to enhance the effectiveness and equitability of the BBNJ agreement and enable global ocean stewardship in ABNJ.

This article examines the concept of granting legal rights to nature as a strategy for more effective environmental protection in the era of the Anthropocene. Following decades of debate over the possibility and consequences of natural objects becoming legal rights holders, a number of countries have recently implemented rights of nature laws in their national legal systems. Comparing two of these examples – a constitutional amendment in Ecuador and recently transposed legislation in New Zealand – will help in understanding the potential for and challenges in the implementation of this concept. On the basis of the findings of this comparison the article further analyzes the possibility of legal reform in a European country, using Germany by way of example. This analysis demonstrates that the realization of rights of nature in Europe is faced with many obstacles as it contests institutional and legal frameworks that are deeply rooted in Western individual rights doctrines and neoliberal economic models. Nevertheless, the holistic approach of expanding the number of rights-bearing subjects beyond an anthropocentric framework can allow for more serious consideration of environmental interests, something that aligns with the German narrative of recognizing nature's intrinsic value in law and the need for effective environmental protection measures.

In 2008, Ecuador became the first country to grant legal rights to nature. In thisarticle, I examine how this happened. I show that while proponents of nature’s rights acted during a key political moment, their efforts were successful due to the presence of environmentalist social movements that elevated the environmental agenda at the national level during prior decades, and due to the power of indigenous organizations and their call to recognize Ecuador as a “plurinational” polity, demanding respect for indigenous territories and ways of life and incorporating politicized versions of indigenous beliefs about the environment. The study considers the consequences of mobilization for legal innovation and institutional change, and shows the complexity of struggles over the environment in the global South. It is based on research at the Ecuadorian National Legislative Assembly archive, semistructured interviews with respondents involved in the politics of nature and the constitutional assembly, and secondary historical sources.