The Rights of Nature (RoN): A Challenging Concept (I)

There are consequences from this approach. RoN provides civil society with a primary role as a watchdog providing oversight of the environment and where necessary the ability to challenge decisions that are regarded as contrary to the protection of nature. In essence RoN promises that providing access to justice through national courts would, if viewed in the EU context, enable the Court of Justice of the EU to have a greater environmental role than at present. This might include advancing the means to develop the European Green Deal, a plan to make Europe a zero-carbon zone. RoN is highly idealistic and can appeal to many followers on this basis. However, any set of ideals has to work with practical realities which may not always measure up to high expectations. That said, there is some good evidence that RoN has empowered indigenous people to uphold their rights over the land, enhance biodiversity and natural resources that form the habitat around their homes. This marks a major achievement for indigenous peoples.

RoN is often linked with an holistic rights-based approach. RoN supporters hope for the adaptation of human rights approaches to nature, will provide a broader and more permissive means to challenge decisions. In practical and theoretical terms such an approach poses a profound challenge for the United Kingdom. After Brexit, the United Kingdom’s current Government, has shown a profound scepticism about the value of rights, particularly the Human Rights Act 1998. Consequently, it is unrealistic to believe that RoN is likely to receive significant attention in the immediate future. Brexit and its impact has resulted in a sharp break with policy making and discussion of the role and functions of EU law. Indeed there are clear reasons for believing that much EU environmental law may become less influential, even to the extent of some of the foundations of environmental protection being repealed, despite much of currently retained EU law remaining after the UK left the EU. The UK is in a curiously isolated place when it comes to developing RoN strategies, coinciding with deep scepticism about human rights and reluctance to engage with EU institutions. There is even discussion of whether or not to leave the European Convention on Human Rights and revoke/amend the Human Rights Act 1998. That said, this does not mean that RoN will have no influence, more that such influence is likely to be indirect.

The proponents of RoN see a major potential for RoN to advance various litigation strategies that address climate change protection. Specialist areas covered include air quality, river quality, bathing water safety and general environmental issues, all may fall within the approaches favoured by RoN. There is also interest in RoN as an intellectual discipline that draws on interconnections between science and law. RoN also draws on interactions between law, philosophy and the environment, which may be attractive to environmental activists as well as fascinate environmental lawyers and thinkers, and even help develop their attitudes to how best to protect nature.

Defining the Right of Nature

The literature on RoN is vast, and the subject matter defies any single discipline. As well as science. RoN draws from philosophy, sociology, law and general thinking about rights. The diversity of the subject-matter brings with it one of its underlying problems. No single discipline holds the key to its advancement. The range of options, however, gives rise to its enduring potential. The main focus of RoN is to re-direct attention from an emphasis on the anthropocentric approach to the environment in favour of a rights-based approach. Environmentalists who are also constitutional lawyers would like to elevate RoN into a composite of rights that draws inspiration from the European Convention of Human Rights which many feel does not address environmental rights adequately. The argument is that RoN should be part of international law or become embedded in national constitutions. It is clear that countries with a strong indigenous people lobby group are more likely to accept RoN as a meaningful form of protection over others. There are some examples of what this might mean, such as the 2010 Declaration of the Rights of Mother Earth. There is also the example of the 2009 Ecuadorian Constitution where RoN rights are enshrined and protected.

The history of RoN reflects its diversity across disciplines and intersections that have a common interest in the environment. There is a freshness and inventiveness that comes from integrating different approaches, often evident in similar arguments but all with a consistent core of RoN thinking. Christopher Stone in 1972 published a seminal article on the question “Should trees have standing”. The article did not have the desired impact in a pending court case, for which it was written, but the dissenting decision of one of the Justice’s arguing that environmental objects should receive rights protection carried some weight. A variety of scholars have followed the discourse of rights and pursued a logical line of reasoning that rights will enhance claims to protect the environment. However, there is no single unified or consistent approach across all disciplines. One reason is that environmental law found redress during an active period in the 1970s and ’80s through the general acceptance of adopting legislation in many countries to intervene to protect the environment. Such legislative intervention became prevalent throughout many Western societies. Numerous environmental protection agencies were established bringing law into the forefront of environmental protection. In fact, RoN arguments were largely overtaken by this and might have remained subservient to the mainstream of environmental law were it not for the birth of public interest litigation that included a Bill of Rights akin to the operation of the Community Environmental Legal Defence Fund.

Indigenous peoples found that RoN provided much needed support for their status and their demands over natural rights, particularly forests, waterways and vegetation. RoN helped facilitate a paradigm shift towards a legal recognition of environmental rights. RoN supplemented and where necessary extended the jurisprudence of the law of standing supporting indigenous claimants especially their claims over land rights. In some instances countries changed their constitutions as a means of elevating the protection to nature. Ecuador, Bolivia and New Zealand, for example, allowed changes in their constitutional arrangements to recognise indigenous rights.

RoN has been adopted in many Western countries, significantly the US and Canada, particularly since 2000. Litigation, has been enhanced by RoN arguments amidst heightened public concerns about climate change. Indigenous peoples have helped champion RoN and helped broaden its remit to include “a means of allowing indigenous people a way of upholding traditional land use rights to natural resources and still preserve biodiversity”. It is inevitable, however, that RoN is not always successful, although what is deemed successful is difficult to conceptualise and not always accepted by everyone, or even subject to objective verification.

There are diffuse approaches to RoN. One approach, different from the mainstream, is to be found in the work by Thomas Berry who considers that the main form of RoN should be Earth Law. Earth law is regarded as a way of creating a new jurisprudence that will take forward the protection of nature within a new legal jurisprudence. Earth jurisprudence or Earth system law is a means of conceptualising and developing a coherent approach to nature within the legal system. This would include protection of workers, communities and employees as well as property law, competition law and land law, allowing the law to be focused on successful strategies to protect nature. It is argued that a paradigm shift is needed Rights to habitat, the right to renewal of nature, and the rights to be heard in litigation are the most important to protect the earth.

At the centre of RoN thinking is a single proposition that natural entities are best protected through the grant of legal personality. This would achieve legal standing in court cases and allow evidence about nature to be admitted into court proceedings. There are a wide variety of examples where legislation and case law have developed as a way of advancing the protection of the environment. The results of the advocacy of RoN, however, and have not always achieved what their proponents may have wished for. RoN is likely to be most accepted by communities that are the most vocal for indigenous rights.

There is a consensus that RoN embraces a number of international law rights. These include respect and care for the community of life; ecological integrity; social and economic justice; democracy, non-violence and peace. The Universal Declaration of the Rights of Mother Earth defines mother earth and all things that it is composed. The stipulation of a number of obligations under the Declaration is essential and sets out the main expectations of protection for to mother earth. These include freedom from pollution and restoration of nature after human interventions that degrade the natural environment.

This broad-brush approach may appear self-defeating as its lack of specificity might weaken the ambition and dilute any strategic achievement. Its appeal rests mostly on the road map it provides indigenous peoples with a pathway forward. However, there are examples where this approach has been successful. The Urewara in New Zealand is a National Park inhabited by Maori tribes and the ensuing Treaty of Waitangi signed in 2013 is an example of what can be achieved.

An underlying aspect of RoN is the elevation of RoN to provide nature with a legal personality. This gives support to claims on the basis of standing rules, allowing legal cases to be taken as a means of testing the application of legal regulations and ensuring compliance.

The diversity of RoN discourse is remarkable and may be harnessed to achieve this end. Earth jurisprudence addresses species protection as well as climate actions. More generally RoN may build a coherent right to a healthy environment. The existing European Convention rights only provide implied or indirect protections. Some of the main pillars of environmental protections have been drawn from the Aarhus Convention. Thus public participation, access to information and access to justice in the courts provide some principles and building blocks for the protection of the environment. One criticism is that Aarhus is technical and procedural rather than substantive and enforceable.

The European Convention requires there to be “victims” and that domestic remedies have been exhausted, to qualify for a case to be heard. Put simply unless a person’s rights are affected by an environmental wrong, as a basis for achieving sufficient standing to take a case. Increasingly, litigation is being used to highlight pollution, hold governments to account and make high-polluting companies and corporations account for the adverse effects of climate change. Consequently litigation is becoming a key component of addressing climate change. Recent research published by the London School of Economics, Grantham Research Institute, has evaluated how the stock market reacts to news that a corporate entity has lost a case involving climate change. The research shows there is a sizeable drop in the relative value of the company.

In a global context, an academic study from the Climate Accountability Institute has estimated that $209 bn a year might be due from fossil fuel firms due for reparations for the damage caused to the environment. The main target is oil companies.

There is considerable scope for embedding environmental protection within a human rights framework. For example, there is a United Nations, Special Rapporteur on human rights and the environment, with a mandate to examine human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment. The mandate includes promoting best practice of the use of mainstream human rights in environmental policy making. Such developments represent an important direction of travel in securing rights for the environment. However, not all such developments are directly attributable to RoN rather than a development of environmental rights in the mainstream as a logical extension of rights jurisprudence. A petition from sixteen children in Argentina, Brazil, France, Germany and Turkey before the United Nations Committee on the Rights of the Child is an example of a case taken before of the ill effects of climate change. The petition was dismissed by the UNCRC on ground of inadmissibility due to the failure by the petitioners to exhaust their domestic remedies. However the case raised lots of important issues that might eventually give way to future cases due to the approach taken to victimhood.

‍