Literature Review

Kotzé and French argue in their article that major environmental treaties, legislation, and sustainable development goals largely ignore the value of nature for its own sake because the institutions that create and pass them thrive on unchecked growth. They call upon Rockström’s planetary boundaries framework as a tool which they contend should be used to guide individuals and larger institutions to better respect ecological limits. Finally, Kotzé and French conclude that the UN World Charter for Nature should be considered as a potential instrument to guide the world’s nations to collectively recenter their focus on environmental protection around authentic ecocentrism.

This Reflection starts from the ongoing COVID-19 pandemic as unprecedented occasio to reflect on the approach to international law, which—it is contended—is anthropocentric, and its inadequacy to respond to current challenges. In the first part, the Reflection argues that there is, more than ever, an undeferrable need for a change of approach to international law toward ecocentrism, which puts the environment at the center and conceives the environment as us, including humans, non-human beings, and natural objects. To encourage the incorporation of ecocentrism in the entire discipline, the Reflection will rely on some insight of ecofeminism, whose potential has not been fully investigated in international legal scholarship. In the second part, the Reflection illustrates what an eco-centric international law would mean, imagining three possible applications: first, what the author has called environmental global health, which is connected to the current pandemic and puts into question the proposals dealing with global health that completely miss the theorization of the environment as a whole; second, how actors of international law would change according to an eco-centric perspective; and, third, how the rules prohibiting the use of force might be reconceptualized. The analysis contained in these pages cannot itself exhaust all the possible nuances of the legal reasoning, but it is aimed at being a provocative starting point for a change in the mindset and approach of international legal scholarship.

In this paper, Murray argues that law as it has historically been conceived is not an adequate tool for responding to complex ecological concerns. Murray discusses four possible mergers of ecology with law: Ecosystemic Law, Earth Jurisprudence, Resilience Theory, and other approaches that embrace philosophical complexity theory. Moving beyond current environmental law paradigms, Murray suggests that the animal as an “intensive body of affect in a complex social-ecological assemblage” has a unique capacity to position itself between ecology and law so as to prompt a reimagining of both concepts. Because of this, Murray believes that animal lawyers have the ability to lead the way in exploring better ways to create legal precedent for the protections of the relationships between humans and the natural world.

While efforts are being made to grant legal rights to non-humans, Norman believes that the very notion of the human legal subject is outdated. She criticizes the concept of the “rational autonomous individual,'' introducing the idea of the Cosmic Person as an entity which normalizes ecocentrism, embodying interdependency, connectedness, and experience as facets of its life and character. Norman proposes universe, planet, and person as the three nodes of generativity within which all humans coexist, suggesting that the human-Earth relationship can only be fulfilled when its complexity is recognized and embraced—rather than avoided—by the law.

Derning and Andreas examine constitutional protections for natural resources in New York and Florida. Between the 1960s and 1990s, Florida enacted state conservation land purchase programs in recognition of the state’s unique ecosystems that became under threat from growing populations. Florida undergoes constitutional reform every 20 years to make amendments to the state constitution, which added additional management provisions for the “Florida Forever” land conservation efforts. Since 2000, some Florida public officials have attempted to deliberately violate constitutional protections for conserved land, but any attempts have luckily been unsuccessful. New York has a comparable constitutional clause called the “Forever Wild” clause, which protects vast tracts of forest land including the Adirondack and Catskills Forest Preserves. Any attempts to undermine this clause, implemented in 1895, has been rejected by New York voters, maintaining the protection of these lands. Both of these constitutional protections have proved beneficial to maintaining environmental protections, but lack in establishing accountability for public officials violating provisions. Using these two constitutional provisions as models, Derning and Andreas demonstrate U.S. voters are in support of natural resource protections, and encourage other states to propose similar amendments to their own state constitutions.

The purpose of this text is to provide an overview of how environmental law is being developed in three countries of Latin America, with particular focus on protection and management of forest resources.

The Escazú Agreement is the first environmental treaty in Latin America and the Caribbean. It is also the first in the world to protect environmental human rights defenders. This treaty presents an exciting prospect for the protection of the right to a healthy environment domestically, regionally, and internationally. This article examines how the Escazú Agreement will be integrated into the existing normative framework set up by the Advisory Opinion on the Environment and Human Rights (OC-23/17) and the Lhaka Honhat (Nuestra Tierra) v. Argentina case. The article then discusses the Escazú Agreement in a substantive manner with an expansive discussion of key protections enumerated in the agreement. Finally, it provides a background on the Inter-American System for the Protection of Human Rights.

Chile is part of the phenomenon of Environmental Constitutionalism developed in the Latin American region. Thus its Political Constitution contemplates the right of people to live in an environment free of contamination and establishes duties for the state regarding the law and the protection of the environment. However, this formula has been deficient, which warrants rethinking the issues related to the environment at the constitutional level. This work follows this path from the study of the constitutional reform projects currently in the National Congress to systematize analysis at the service of a change that is the basis for an adequate environmental legal framework, respectful of human rights human beings and that maximizes the protection of the environment.

Brazil plays a major role in the global fight against climate change, especially because of its vast forests. However, the amount of deforestation now occurring is in great dispute. Between August 2014 and July 2015, for example, deforestation in the Amazon rainforest increased by 215% according to Imazon Research Institute. Contrarily, according to the Brazil Government, the increase was only 16%. This paper discusses the role that legislation and litigation are playing, and the roles they may and should play in the future, in combatting deforestation and other factors relevant to climate change in Brazil.

Latin America’s climate law is shaped by a slow interactional process involving multi-level competing interests. The process is influenced by, among other things, the region’s historical and material conditions, national political interests, cooperation opportunities, and transnational coalitions. States seemingly share the broad strokes of vulnerability-centred climate action but widely differ in their national approaches. Civil society, including indigenous peoples’ organisations, demands more ambitious climate legislation and its implementation, frequently using litigation as a mobilisation strategy. The reticence to delivering mitigation promises might lie in Latin America’s need to address its economic recession, which tends to be tackled with carbon-intensive activities.

In recent years, several countries have adopted a new legal approach to address eco- logical damages by granting fundamental rights to non-human natural entities. Yet, little is known about the actual impacts of this new constitutionalism of nature on environ- mental protection. This article seeks to better understand these impacts by presenting a case study of the Colombian Atrato River decision. Based on implementation reports and qualitative interviews with the river’s legal guardians and state officials, it argues that rights of nature can be an important impetus for change. However, at least in Colombia, their impacts relate less to legal standing of natural entities, as presumed in the literature, but rather to improvements in policymaking. To transform complex eco- logical crises in weak governance areas, strengthening local state institutions and inte- gral environmental policies are more important than rights of nature. But they can play a role in this regard.

Some countries incorporated broad principles of Earth jurisprudence into their constitutions or other national laws.5 In the United States, recognition of Nature’s rights has occurred at the local government level. Over the last fifteen years, communities have mobilized, non-profit organizations have provided education and assistance,6 city and county legislative bodies have adopted laws and resolutions recognizing Nature’s substantive and procedural rights,7 the people have passed laws through the initiative process, the courts have provided judicial feedback, and state governments and officials have responded. This article describes that body of work, highlights the successes and the challenges, and suggests possible lessons learned and pathways forward.