The rights of nature gaining ground

Nature has been treated in law as property, and exploited. But there is growing legal recognition that nature has rights, and affirming these is essential to both a healthy environment and human rights.


By: Mari Margil
November 14, 2018

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The human right to a healthy environment is gaining ground, with more than 90 countries having enshrined it in law.  For example, Article 14 of the Ecuador Constitution states, “The right of the population to live in a healthy and ecologically balanced environment that guarantees sustainability…is recognized.”

In India, the Supreme Court determined that the human right to a healthy environment is to be found within the scope of the constitutional protection of the right to life.

The increasing interest in the human right to a healthy environment comes as the world faces overlapping and related environmental crises – including the bleaching and die-off of coral reefs, increasing species extinction rates, and accelerating climate change.

Yet, as many are finding, the human right to a healthy environment is impossible to achieve if the environment itself is unhealthy.  Indeed, Klaus Töpfer, former director of the United Nations Environment Program has stated that human rights in general “cannot be secured in a degraded or polluted environment.” 

Töpfer explained, “The fundamental right to life is threatened by soil degradation and deforestation and by exposures to toxic chemicals, hazardous wastes and contaminated drinking water. Environmental conditions clearly help to determine the extent to which people enjoy their basic rights to life, health, adequate food and housing, and traditional livelihood and culture.”

Thus, we find that fulfilling the promise of human rights, and specifically the human right to a healthy environment, is dependent on the well-being of the environment itself. The human right to a healthy environment, therefore, cannot stand on its own.

This year marks the ten-year anniversary of Ecuador’s Constitution.  It is the first constitution in the world to enshrine legal rights of the environment. Article 71 states, “Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.”

The “rights of nature” constitutional provisions—found for the first time in a national legal framework—transforms nature from being an object of law, to being a subject of law. Thus, in Ecuador, nature is no longer considered a thing without legal rights. Rather, it is a rights-bearing entity.

The history of people’s movements shows that the body of legal rights is not finite. Enslaved people, women, children, indigenous peoples – all have been treated as right-less things, or property, under the law.  It took mass movements of people to end their oppression, to transform them from right-less to rights-bearing.

As environmental threats mount, conventional environmental laws—based on the nature-as-property framework—are proving not only inadequate to the challenge, but increasingly understood as part of the problem. With this, there is a growing recognition that we need to fundamentally change how we treat nature under the law. 

Environmental laws today, premised on the idea that nature is but a thing, regulate the use of that thing.  Much like slave codes in the United States and elsewhere regulated how slaves could be used, today environmental codes regulate how we can use nature. Thus, environmental laws largely legalize the use or exploitation of nature.  This means that environmental laws legalize fracking, mining, pollution, etc.—activities which purposefully harm nature. 

As temperatures climb, sea levels rise, tropical diseases migrate northward, and other threats to the environment grow, civil society, communities, and even some governments are beginning to re-think our treatment of nature. This is giving birth to a new people’s movement aimed at transforming how nature is treated under the law, and ultimately how humankind governs itself toward the natural world.

The first rights of nature laws were enacted at the community level in the United States beginning in 2006, with more than thirty local laws now in place across ten states. In 2008, Ecuador promulgated its constitution, followed by the 2010 enactment of a national rights of nature law in Bolivia.  In addition, over the past several years, courts in Colombia and India, and the Parliament of New Zealand, have recognized that rivers and other ecosystems possess certain legal rights.

These rapid legal developments come as the impact of human activity on biodiversity and the environment is becoming impossible to ignore—with many now calling our modern day the “Sixth Great Extinction” event.  Thus, the emerging rights of nature movement is increasingly driven by necessity, an urgency, that as Colombia’s Constitutional Court wrote, requires action before it’s “too late.”

Rights of nature laws provide for enforcement by both people and their government. In Ecuador, for instance, the first case to be decided under the 2008 Constitution, was brought on behalf of the Vilcabamba River by two residents of Ecuador.  They filed the case arguing that the rights of the river were being violated by government road construction, which was impairing the natural flow of the river.  In 2011, the Provincial Court of Loja agreed—the first time a court affirmed that nature possesses legal rights.

In the United States, local laws are securing the rights of ecosystems and natural communities, recognizing them as the “real party in interest.”  Much like a parent or guardian of a child will defend the child’s rights in court in the name of the child, similarly, action to defend the rights of nature are to be brought in the name of the ecosystem which is the rights-holder.

There is much to be learned from past struggles to recognize rights of the right-less. The law and culture were wielded to legalize and legitimize the subjugation of enslaved people, women, and others—much like how nature is treated today. 

Indeed, as Colombia’s Constitutional Court wrote, the kind of societal change that past movements achieved is what nature needs today. In its 2016 decision recognizing rights of the Atrato River, the Court declared, “(I)t is the human populations that are dependent on the natural world—and not the opposite—and that they must assume the consequences of their actions and omissions with nature…”  The Court further explained that this transformation is possible, as “has happened before with civil and political rights.”


Mari Margil is Associate Director of the Community Environmental Legal Defense Fund.


 

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