Rights of Nature Rising

There is an increasing awareness that humans are part of, rather than separate from, nature. In law, this growing consciousness has been reflected in the development of Earth Jurisprudence. Alessandro Pelizzon discusses the emergence and implications of this distinctive form of legal reasoning.

In 1972 Professor Christopher Stone, professor of legal philosophy at the University of Southern California, wrote his landmark essay ‘Should Trees Have Standing?’ At the time, his article raised quite a number of eyebrows.

Professor Stone advanced the idea that natural, non-human entities such as trees, rivers, lakes and animals could be granted legal standing or, in other words, ‘rights’ similar to those inalienable ones used to justify the American and French Revolutions and commonly conferred upon humans and their legal constructs (such as corporations and other collective legal entities).

Professor Stone had been prompted to write his provocative essay because of a proposed development in California’s southern Sierra Mineral King valley. The Sierra Club, a long-time guardian of the region, had entered a protest against Walt Disney Enterprises’ proposed development of a massive ski resort. The appeal was rejected by the U.S. Court of Appeals of California since the Sierra Club itself was not directly injured and thus had no ‘standing’, or legal reason, to sue against the development.

However, Professor Stone argued that something was nonetheless going to be injured and thus was in need of legal protection. He suggested that conferring (or, as some would say, recognising) rights on nature would remove the environment from the category of ‘things’ and thus afford it stronger legal protection from relatively unchecked human exploitation.

Although Stone’s words did not prevent the proposed development, his article influenced the dissenting opinion of Justice William O. Douglas, who wrote that ‘contemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation’.

Professor Stone’s article was innovative in that it defined ‘injury’ (as a legal concept) not merely in human terms but also in regards to nature. A new “biocentric” or “ecocentric” perspective thus challenged the anthropocentric views of traditional jurisprudence, which see humans as the only entities worthy of legal protection. The biocentric perspective, instead, views humans as parts of a more complex system in need of legal protection just as strongly as its individual human elements.

Professor Stone’s ethical system personified the environment to an extent unprecedented in Western legal history. This view was further articulated by ecotheologian Thomas Berry. Berry was one of the strongest advocates of ‘deep ecology’, an ecological philosophy that recognises an intrinsic worth to all beings, regardless of their instrumental utility to human needs.

Deep ecology proposes that all organisms are strictly interconnected and interdependent within the diverse (but not separated) ecosystems that form the totality of the biosphere. Furthering this philosophical perspective within the realm of law, Berry proposed in 2001 a new framework for law termed ‘Earth Jurisprudence’.

As a new legal philosophy, Earth Jurisprudence is predicated upon the idea that since humans are part of an interrelated and interdependent community of beings and phenomena, the continuous wellbeing of each member of this community is connected to and dependent on the wellbeing of the community as a whole. Rather than being ‘human-centred’, our legal systems need thus to be ‘earth-centred’, by recognising non-human entities as holders of intrinsic and inalienable rights.

But what does recognising rights to nature mean? Professor Stone himself wrote that nature ‘makes for a shifty client’. Although at times it is relatively easy to identify the natural beings that are the proposed subjects of these recognised rights, more often nature is subtly elusive, representing ‘more a set of parameters than a thing.’ Whereas it is relatively easy to establish where a tree begins and ends, the boundaries become more blurred when we look at a river, a cloud or at complex phenomena like the climate.

Moreover, if at times the identification of the ‘wrongdoer’ is relatively straightforward – be it a polluting company or a group of loggers in the Amazonian rainforests – the identification of a precise offender is commonly much more problematic. Furthermore, even assuming that a court was capable of such identification, it would be faced with the often equally problematic question of remedy. Finally, natural beings and systems care little for human constructs such as laws and regulations and the determination of who should best represent the rights of such beings and systems within the legal arena is another contentious issue to be thoroughly investigated.

Notwithstanding the numerous conceptual challenges presented by the emerging rights of nature discourse, a number of jurisdictions have already begun to explore the implications of considering nature as a subject of legal rights. In 2006 the Community Environmental Legal Defense Fund in the U.S. supported the drafting of a municipal ordinance in Tamaqua Borough in Pennsylvania that granted ecosystems legal rights, establishing that either the municipal government or any Tamaqua resident can file a lawsuit on behalf of the local ecosystem.

A number of municipalities in the U.S. have followed this example, the most notable of them being the urban municipality of Pittsburgh that passed a similar ordinance in 2010.

Inspired by the U.S. example, in 2008 the Ecuadorian constitutional assembly enshrined and codified rights of nature in the new Ecuadorian Constitution of 2008. In 2011, following a court action in defence of the Vilcabamba river demanding the observance of the rights of nature protected in Article 71 of the Ecuadorian Constitution, the Provincial Court of Justice of Loja recently granted a Constitutional injunction in favour of the Vilcabamba river (in other words, of nature) against the proposed development of a road by the municipality of Loja. This momentous case represents the first successful instance in which human claimants have acted on behalf of nature in a court of law to protect nature’s rights against external damages even though the claimants themselves were not directly affected by such damages.

Paralleling the Ecuadorian legal development, Bolivian President Evo Morales summoned, in 2010, the World Conference of Peoples on Climate Change and Mother Earth’s Rights in Cochabamba, Bolivia. The gathering produced one of the most intriguing international documents of recent times, the Universal Declaration on the Rights of Mother Earth, a document that, in the words of Nnimmo Bassey, ‘demands a paradigm shift and a conscious effort on the part of man to own up to our errors and settle on amending our patterns of production and consumption.’ The Declaration expressly stepped away from a Eurocentric representation of ‘nature’, choosing instead to adopt the language of the Andean peoples who hosted the conference and translating the Andean concept of Pachamama with the English words ‘Mother Earth’.

The 2010 Report on Sustainable Development of the UN Secretary-General to the 65th Session of the United Nations General Assembly, under the evocative title ‘Harmony With Nature’, addressed ‘how sustainable development approaches and initiatives have allowed communities gradually to reconnect with the Earth.’ One year later, the Bolivian government officially submitted the Universal Declaration of the Rights of Mother Earth to the United Nations for consideration, while at the same time drafting a new municipal Law of Mother Earth.

In the United States activist groups are working together with a number of municipalities drafting local ordnances that protect the local ecosystems as integral parts of their communities, while in South Africa a not-for-profit organisation works with local communities ‘to develop their legal capacity to demand social and environmental justice’. Turkey, Iceland and the UK have begun to investigate the possibility of legislating rights for nature and a number of submissions demanding rights for nature have been presented for the Rio +20 event in 2012.

Australia is currently becoming a strong advocate of the principles proposed by Earth Jurisprudence and the rights of nature discourse. In 2009, during the first Australian conference on Wild Law and Earth Jurisprudence, the participants expressly declared that ‘the perceived separation between nature and human beings is a fundamental cause of the current environmental crisis.’ ‘We assert’, they add, ‘that law needs to transition from an exclusive focus on human beings and recognise that we exist as part of a broader earth community. We recognise that the universe is composed of subjects to be communed with, not objects to be used. Each component member of the universe is thus capable of having rights.’

Two other conferences followed in 2010 at the University of Wollongong and in 2011 at Griffith University in Brisbane, and a fourth is planned in 2012 by Southern Cross University in Byron Bay. The Australian Wild Law Association and Southern Cross University Earth Laws research network were both launched in 2011 and the number of scholars and activists exploring and discussing the issues is constantly rising.

Indeed, paraphrasing the words of UK based lawyer and activist Elizabeth Rivers, it seems that a wildfire is truly sweeping across legal consciences. Scholars, activists, scientists and politicians across the planet now discuss Professor Stone’s provocative suggestion without raising their eyebrows anymore. It appears, as the Global Alliance for the Rights of Nature suggests, that the idea of nature as a subject of rights is truly an idea whose time has finally come.

 

Alessandro Pelizzon is Associate Lecturer in the School of Law and Justice at Southern Cross University. He helped form the Earth Laws Network, a platform to inform interdisciplinary education and research in the emergent areas of Earth Jurisprudence and Wild Law.