Literature Review

This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the JURI Committee,explores the conceptof “Rights of Nature” (RoN) and its different aspects in legal philosophy and international agreements,as well as in legislation and case- law on different levels. The study delves on the ideas of rights of nature in comparison with rights to nature, legal personhood and standing in court for natural entities, and analyses ECtHR and CJEU case-law on access to justice in environmental decision-making. It emphasises, in particular, the need to strengthen the requirements for independent scientific evaluations in certain permit regimes under EU law. The study also highlights the crucial importance of promoting the role of civil society as watchdog over the implementation of EU environmental law by way of a wider access to justice via both the national courts and the CJEU, which is also in line with the political priorities for delivering the European Green Deal.

Mother Earth has provided food, water, and protection for humans for more than 6 million years. Yet since the industrial revolution, consumption of natural resources has only increased. We now face a grim future: protect nature or suffer the consequences without it. Does nature have rights?

According to the judicial branch, from 2008 through 2018, 3,500 offenses were brought under this statute. Approximately 80% of these cases were either dismissed or not prosecuted (see sidebar for procedural outcomes). In reviewing this data, it is important to note that an individual could be charged with multiple offenses or have multiple cases during a year.

In this paper, Kotzé and Calzadilla detail the history of rights of nature laws in Bolivia, examining the country’s Constitution, the Law of the Rights of Mother Earth, and the Framework Law of Mother Earth and Integral Development for Living Well. While the Bolivian constitution does not explicitly grant rights to nature, it does create frameworks for such recognition in the future by incorporating the right of citizens to a healthy, protected, and balanced natural environment, and subsequent laws have expanded these protections to grant Mother Earth equal status. However, efforts to effect cultural change should not end with legal reform. As societies around the world confront the destructive nature of their anthropocentrism, Kotzé and Calzadilla stress the importance of learning from indigenous worldviews to guide the path forward.

Since the onset of colonization, indigenous peoples have had stolen their rights to land, natural resources, culture, language, and other essential aspects of their identities and sacred practices, and have long been embroiled in legal battles to reclaim them. Thompson details the ways in which contemporary rights of nature discourse has provided Native nations an avenue for reclamation through legal provisions such as the Montana exceptions, which in some cases allow them to regulate the conduct of members and non-members to maintain self-governance and protect their territory. To conclude, Thompson discusses various examples of rights of nature in practice, such as the Rights of Manoomin treaty and the Klamath River declaration.

The Rights of Nature, a notion that dates back to 1972 when Christopher Stone published Should Trees Have Standing – Toward Legal Rights for Natural Objects, is a legal theory that gives nature rights the same way humans have rights. It asserts that human beings and parts of nature like plants, rivers, forests and animals share an equal right to exist. The movement pushes countries to recognize nature as a rights holder and grant nature legal standing. If nature had legal standing, it would be entitled to legal personhood status and the right to defend itself against harm in a court of law.

The Constitution of the Republic of Ecuador is the first in the world to recognize and guarantee rights to nature. These rights are provided in articles 71 and 72 of the Constitution.

In his thesis paper, Addison Luck reviews the history of rights of nature law in Ecuador in order to analyze local challenges and propose possible solutions to its enforcement. He begins by outlining the central tenets of the rights of nature movement, briefly tracing its progress in countries including the U.S., Ecuador, New Zealand, and others that grant legal rights to ecosystems, animals, and natural bodies. Utilizing information gathered from interviews and relevant literature, Luck gains insight into several problem areas that have emerged from the 31 rights of nature court cases that were adjudicated in Ecuador from 2008 to the present. First, Luck identifies various constitutional discrepancies that dictate environmental protections while sanctioning its destruction. He advocates building stronger jurisprudential practices around rights of nature issues as well as requiring a more thorough consideration of nature’s interests in the approval process for potential future development projects. Luck also holds that Ecuador would benefit from more specific definitions of which aspects of nature can be represented in court, and contends that more effort to educate civil society stakeholders, lawyers, and judges on rights of nature issues would be a constructive next step. Finally, Luck criticizes the current Ecuadorian guardianship model whereby every citizen is able to speak in court on behalf of nature. To remedy the inaction that results from this “problem of the masses,” he proposes the creation of a state-sponsored guardianship agency with small funding incentives provided by governmental bodies or large environmental organizations. Despite the concerns he raises, however, Luck still supports the continued adoption and enforcement of rights of nature laws in Ecuador and across the globe.

Miller argues that environmental personhood can eventually be analogized to corporate personhood in that both entities are extensions of individuals (and their goals) and should be treated as such in courts. Being that a natural ecosystem also includes human beings, the system should be able to exercise the rights of its component parts. In order to gain access to federal courts, a natural entity would have to establish personhood to satisfy the narrowly drawn standing requirement under Article III of the Constitution. Examining why the Colorado River case did not succeed, Miller asserts that he believes the plaintiffs focused too much on the Rights of Nature doctrine, failed to allege particularized injury to the Colorado River Ecosystem, and did not do enough research to satisfy the standing challenge. He concludes by advocating a shift in attitude within the United States toward rights of nature models found throughout the international community.

Sheber begins her paper by examining rights of nature case studies in New Zealand, India, and Ecuador, comparing their accomplishments and the ways in which their respective successes came to be. She then discusses the effectiveness of various coalition-building strategies to garner support for rights of nature movements internationally, including information sharing and organizing on various levels. Finally, Sheber explores two major benefits of passing rights of nature laws: better and more frequent protection of nature based in non-anthropocentric logics and increased governmental and societal recognition of indigenous perspectives.

The “Rights of Nature” movement is fundamentally rethinking humanity’s relationship with nature, and it is gaining momentum. It is led by activists advocating for ecosystems such as rivers, lakes, and mountains to bear legal rights in the same, or at least a similar, manner as human beings. This movement is striving for a paradigm shift in which nature is placed at the center and humans are connected to it in an interdependent way, rather than a dominant one. How would such a legal system work, and could giving rights to nature help in the legal battle against climate change? A few case studies offer some insight.

While much has been written about the efforts in multiple jurisdictions to recognize nature and natural features as rightsholders, there has been relatively little research into the relationship of these Rights of Nature developments to the Anthropocene. This article uses historian Dipesh Chakrabarty’s argument for the adoption of a human species identity in the Anthropocene as a jumping off point to analyze how legal rights for nature, such as those enacted in the Ecuador and New Zealand, can help address what Chakrabarty identifies as the challenges the Anthropocene presents to contemporary political thought. These pressing challenges include how to politicize relations between humans and non-humans, extend justice and the sphere of human morality to non-humans, cope with human limitations on our abilities to represent non-humans, and to initiate a withdrawal from a human-dominated world that is a common though uneven legacy of imperialism, capitalism, and globalization. The article argues that by providing responses to these challenges, Rights of Nature laws may also further the development of a human species identity. However, it also qualifies this conclusion in several important regards. First, the more expansive of these protections, embracing all of nature within political boundaries and relying on a remedial approach to justice and broad notions of representation in fact may hinder the adoption of the kind of species identity for which Chakrabarty has called. Second, as a cosmopolitan identity, this identity may be inhibited by continued circumscription of Rights of Nature by notions of state sovereignty.