Rights of nature on the upswing
Private Law Gazette 2/2022 – Over the last two decades, the relationships between humans, nature, and law have become an important field of research worldwide. Countries as various as Ecuador, Bolivia, New Zealand, India, and Uganda have already recognized nature as a rights-holder. The global movement has also arrived in Europe, where discussions about or efforts to implement rights of nature are already underway in multiple countries. In a latest example, personhood has been accorded to the ecosystem of Mar Menor, a lagoon on Spain’s Mediterranean coast.
That nature should be recognized as an autonomous legal entity upsets traditional notions of environmental protection. What is the significance of this globally manifesting paradigm shift? What does a future look like in which rights of nature play a role? Can rights of nature usher in an ecological transformation? To understand the phenomenon from a comparative law perspective, Institute director Ralf Michaels has added rights of nature to his research into sustainable law and decolonization of law. In October 2022, he and Daniel Bonilla Maldonado, professor at Universidad de los Andes in Colombia, together presented a general report to the twenty-first General Congress of the International Academy of Comparative Law, in Asunción, Paraguay, entitled “Global Legal Pluralism – Rights of Nature”.
„The whole world could look to the emerging new jurisprudence for ways to rethink law’s responsibility for the twenty-first century planetary crisis and find an effective legal response.“
– Institute director Ralf Michaels –
Their report begins with a survey that captures in numbers the scale and magnitude of this global discourse. The authors register more than four hundred initiatives from 2006–2021 that appealed in some way to rights of nature. Most of these initiatives have sought for rights to be afforded to nature as a whole. Around twenty percent of them were about rivers and other aquatic ecosystems. Ten percent related to animal life. The vast majority, around eighty percent, were located in the Americas. Ninety percent were from a group of just thirty-nine countries. In 2008, Ecuador became the first country on earth to incorporate rights of nature into its constitution – complete with a right to sue. Bolivia followed suit in 2010 and 2012 by enacting corresponding legislation. These two have since been joined by Argentina, India, Panama, and New Zealand.
The periphery as a driving force
“The leaders in formulating rights of nature have been countries of the global South”, observes Michaels. “The traditions of Indigenous peoples are understood there as a source of knowledge, as offering innovative ways to think about the relationship between humans, law, nature, and the economy”. By developing new legal models, states whose legal orders do not ordinarily set the tone around the world have thus already caused a perceptible shift in international law. A United Nations program called Harmony with Nature, which in 2009 proclaimed 22 April as “International Mother Earth Day”, expressly refers to an “evolution” from traditional environmental law to a rights-of-nature approach.
One fundamental difference between rights of nature and Western-branded law is that rights of nature afford legal autonomy to nature itself. But there are other differences too. As these rights harden into black-letter law, Michaels and Bonilla have looked more closely at Ecuador’s, Bolivia’s, and New Zealand’s rules as prototypical of three models. All three share a connexion between modern law and the basic religious concepts of Indigenous peoples. They understand humans as part of nature, forbid the disruption of ecosystems, and demand the observance of a fundamental interdependency and reciprocity. Moreover, the rules resulted from political processes that included a reckoning with multicultural social structures. “The whole world could look to the emerging new jurisprudence for ways to rethink law’s responsibility for the twenty-first century planetary crisis and find an effective legal response”, says Michaels.
Pushing a new perspective
What kind of perspectival shift would help the countries of the global North effectively incorporate a rights-of-nature approach? “Rights of nature question the understanding of our natural world as something that exists solely to satisfy human needs – as property for limitless exploitation by humans”, says Michaels. “Even if it isn’t established how nature’s voice may be heard or interpreted, the very attempt is an important shift away from the anthropocentric perspective of modern Western law”.
A bottom-up transformation
“The rights of nature are an exciting topic for comparative law, not least because a legal institution of the global South has been an inspiration for the global North, not the other way around as usual – it’s a reverse legal transplant”, says Michaels. “Ideas developed in countries with relatively weak economies were able to assert themselves against the dominant political economy of jurisprudence. It’s also truly remarkable how these countries with rights of nature have managed to affect public international law”.
How could legal concepts from the global South exert such a transformative influence? The reasons, Michaels and Bonilla have found, call for a re-examination of contemporary theories in comparative law about the conditions that lead to legal change: “Essentially, the development was sustained by a kind of cross-pollination between the efforts of state and non-state agencies, by dialogue, and by different legal systems learning from one another”.
Michaels and Bonilla also find that there is now a global discourse on the rights of nature on which a network of scholars has made its mark. The network grew up over decades, with many different disciplines participating, and these scholars’ engagement has been instrumental in transforming the rights of nature from just a research topic into an issue for discussion in national and international policy circles.
Bonilla and Michael’s general report, together with twenty-five country reports and other special treatises, will be published by Intersentia. Bonilla and Michaels are also co-editing a special issue of the online magazine Naturaleza y Sociedad with Patricia Zalamea, dean of the arts and humanities faculty at Universidad de los Andes. It will feature an interdisciplinary approach to the rights of nature.
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Portrait: © Max Planck Institute for Comparative and International Private Law / Johanna Detering