Nature as a subject of rights: A paradigm shift

By Covadonga Fernández Dos Santos, lawyer and member of the Animal Law Commission of the Oviedo Bar Association. 

When the renowned French philosopher and anthropologist Philippe Descola visited the Museum of Natural History in the city of La Plata, in Buenos Aires, he noticed that its interior showed “an excellent image of the world as we have conceived it for a long time… The ground floor of the museum is entirely dedicated to nature: in the shape of a radius and from a central rotunda, the dusty and poorly lit galleries of mineralogy, paleontology, zoology or botany unfold... You have to go up to the first floor to see men or More precisely, dispersed residues of their material cultures... However cartoonish this two-story microcosm may seem, it well reflects the order of the world that has governed us for at least two centuries. On the majestic foundations of nature, with its ostensible subsets, its unequivocal laws and its well-circumscribed limits, rests the great Capharnaüm of cultures, the tower of Babel of languages ​​and customs, what is proper to man... it is about …those ontological classifications that we carry out at all times with the beautiful automatism born of a long internalization of the dualist scheme”[I], which separates nature from culture.

However, the truth is that there is no such distinction between nature and culture, because the very concept of “nature” is a conventional, cultural concept. Let us keep in mind that the distinction between the natural and the non-natural, the latter understood as the part of the world intervened by human beings, is not universal, but rather differs depending on the idiosyncrasy of the various societies that approach it. . And, in any case, we must have doubts about whether there is any place on the Earth's surface or in its atmosphere that has not yet been affected by human activity.[ii].

In any case, we can recognize that what a large part of our societies have had in common, throughout history, is that they have looked at nature as an infinite source of resources put at the service and for exploitation by human beings. , without to date any national or international regulations having been able to stop this predatory maelstrom, shaping the theories on the recognition of the rights of nature as the most appropriate response to face the environmental crisis in which we find ourselves, from a change of paradigm that allows us to understand the ecological unity that constitutes humanity and nature[iii].

According to Zaffaroni, the first origin of the recognition of the rights of nature can be found in the classification of the crime of animal abuse and cruelty, because it turned animals into legal assets that could be protected by themselves or, if preferred, into subjects of the right to not to be mistreated by humans[iv].

However, the majority of the doctrine agrees in considering Christopher Stone the main precursor of the rights of Nature for his article entitled “Should trees have feet? Toward a Recognition of the Legal Rights of Natural Objects”, published in 1972 in a California law journal[v], following the famous case “Sierra Club vs. Morton”, also from 1972, in which the environmental organization “Sierra Club” opposed the construction of a “Disney” amusement park within the “Mineral King Valley”, famous for its centuries-old sequoia trees.[vi].

After him, came the approaches of Deep Ecology, which would promote the idea of ​​biospheric egalitarianism, which states that every living being has value in itself, regardless of its usefulness (Arne Naess, Sigmund Kvaloy, Nils Faarlund ); subsequently going on to reformulate the concept of animism, advocating the dissolution of the border between people and non-people, since nature not only includes human beings and other living beings, but also mountains, forests, rivers, etc., inspired by the way in which some indigenous peoples interact with animals, plants and natural elements (Descola, Bird-David, Viveiros de Castro, Inglod, Latour)[vii]. These currents are also related to the scientific positions of the Gaia hypothesis, raised by James Lovelock.[viii], with the ethical and philosophical contributions of the so-called “Earth Jurisprudence”, Thomas Berry) and with the worldviews of the indigenous people of South America[ix].

Finally, we cannot fail to mention Stutzin's “ecological imperative”, which claims as a “conditio sine qua non" to structure an authentic Ecological Law capable of stopping the accelerated process of destruction of the biosphere, the recognition of the rights of nature[X].

As we see, the schools of thought on the rights of nature are numerous and contain a variety of different concepts, but, from their legal-philosophical perspective, the recognition of nature as a subject of rights means a paradigmatic change that moves from a from anthropocentric development to biocentric and ecocentric approaches[xi].

From a biocentric perspective, the World Charter for Nature of the United Nations General Assembly was promulgated in 1982, which, understanding that every form of life is unique and deserves to be respected regardless of its usefulness for human beings, establishes (although without binding force) the duty to respect nature and its essential processes. Almost twenty years later, in the year 2000, the Earth Charter was approved at UNESCO headquarters, whose list of principles states that: “Humanity is part of a vast evolutionary universe… The protection of the vitality of “The Earth, of its diversity and beauty, is a sacred duty.”[xii].

At the international level we must also cite the Universal Declaration of Animal Rights, promoted by the International League of Animal Rights in 1978; and although it has not yet been approved by UNESCO, this circumstance does not diminish its validity or importance, since many of the rights included in its text are part of the legislation of various countries, such as ours.[xiii]. The Universal Declaration of the Rights of Mother Earth of 2010, “in which the inherent rights of Mother Earth are recognized (already approaching ecocentrism and the concept of Gaia, adopting a common expression for a significant number of countries and regions, that reflects the interdependence that exists between human beings, other species and the planet we all inhabit[xiv]) and all beings without any distinction between organic and inorganic beings, species, origin, use for human beings or any other condition."[xv]; Although, again, it does not have legal force, it does exert an influence on the guidance and decision-making of countries, particularly the so-called developed ones. And the Universal Declaration of River Rights of 2018, committed to achieving the declaration of the legal personality of rivers and achieving the defense of their fundamental rights to flow, free of pollution, to maintain their biodiversity, to regenerate and evolve.[xvi].

All this supranational coordination led, in 2014, to the creation of the first Permanent Ethical Court of the Rights of Nature of Mother Earth, made up of prestigious jurists from all over the world and which has worked on specific and diverse cases such as pollution of the “Chevron-Texaco” case (Ecuador), the “BP Deep Horizon” spill (United States), the threat against the Great Corral Reef due to coal mining (Australia), the persecution against nature defenders ( Ecuador),… and about global threats such as genetically modified organisms and climate change[xvii].

At a regional level, the first place in the world to pass a law recognizing the rights of nature was the Tamaqua Borough Community of Pennsylvania, United States, in 2006, to avoid the environmental problems that the activities were causing. extractives carried out in the area. Two years later, one of the most transcendental milestones for the so-called “environmental constitutionalism” would arrive, built from an ecocentric perspective of Law, when Ecuador became the first country to provide legal personality to nature and recognize it as a subject of rights. in its 2008 Constitution. Bolivia followed, although it did not expressly incorporate the rights of nature in its 2009 Constitution, it did enshrine in it principles and regulations for their safeguard that were materialized in two important laws: Law no. 71 of the Rights of Mother Earth (2010), which recognizes the legal personality of Pacha Mama; and Law no. 300, Framework Law of Mother Earth and Comprehensive Development to Live Well (2012), promoted from the knowledge and worldview of the original indigenous peoples[xviii].

Along with these norms, also in the American sphere, the Inter-American Court of Human Rights appeared, for which the rights of nature constitute the means for indigenous peoples to preserve their right to the traditional use of natural elements, at the same time that biodiversity is preserved[xx]. Likewise, great achievements have been achieved at the jurisprudential level in Bharat, including the cases of the Ganges and Yamuna rivers, to which the High Court of Uttarakhand granted legal personality in 2017, adopting the religious model of protection that Hindu idols have.[xx].

Indigenous culture also has an enormous influence in countries like New Zealand, where, embracing the Maori worldview of “mana” (which could be defined as that essence or power that both human beings and the natural world share), the Law of Te Urewera of 2014, which is no longer considered a national park to become “a legal entity and (that) has all the rights, powers, duties and responsibilities of a legal entity”, which it will exercise through a permanent Board[xxx]; and the Te Awa Tupua Act 2017, which recognizes the indivisible whole that makes up the Whanganui River, which includes the river and its ecosystem, as well as its metaphysical elements, and extends from its source to its mouth[xxiii].

And we cannot forget closer and more recent experiences such as the one crystallized through our Law 19/2022, of September 30, for the recognition of legal personality to the Mar Menor lagoon and its basin, according to its Preamble to “give a qualitative leap and adopt a new legal-political model, in line with the international legal vanguard and the global movement for the recognition of the rights of nature.”

As we see, “laws evolve to reflect changes in the attitudes and values ​​of societies. People in the United States, New Zealand, Ecuador, and Bolivia have passed laws, raised demands, and even reformed constitutions to reshape our relationships with other species and the ecosystems within which we all live” (David R. Boyd, 2020)[xxiii].

In Europe, the prevailing economic model based on the exploitation of natural resources has led to legal personality being granted to non-human entities, such as corporations, or to the fact that there is even discussion about the personality of artificial intelligences, while The recognition of the rights of nature is postponed to the detriment of the conservation of the unique biological diversity that our continent houses.

Without prejudice to the above and the fact that the protection of nature in the EU has been exercised to date in a partial manner, we can mention a series of instruments that must be considered fundamental, such as: Directive 79/409/EEC, April 2, relating to the conservation of wild birds; Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and wild fauna and flora; and the creation of the Natura 2000 Network[xxv].

The Treaty of Lisbon of 2009 introduced environmental protection in both the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), as well as in art. 37 of the Charter of Fundamental Rights of the Union, although with the character of inspiring principles. In any case, these texts are beginning to talk about animals as sensitive and sentient beings (art. 13 TFEU), which can be considered as “a first step towards the recognition of the rights of Nature in the EU”[xxiv].

However, it was not until 2020, when the European Economic and Social Committee commissioned a group of researchers to carry out the study titled “Towards an EU Charter of the Fundamental Rights of Nature”, that the EU finally began to show a real interest in the legislative and jurisprudential advances that were happening around the globe (in Ecuador, Bolivia, New Zealand, the USA, etc.; already mentioned). And in 2021 the EU Parliament, at the request of the JURI Commission, published another study on the same topic: “Can Nature Get It Rights? A Study on Rights of Nature in the European Context”, which addresses the possible incorporation of the rights of nature into the legal system of the Union[xxv].

The authors of these reports end up concluding that “we need the rights of nature as a new conceptualization of the legal paradigm within 'Earth Jurisprudence'. Some critics question the value of the rights of nature approach in the Western legal tradition, as they link it to the worldviews of indigenous cultures, which would not be 'exportable' in the cultural context of the northern world. In contrast, the most recent reports... recognize that the ecosystem approach is rooted in both the Earth sciences and traditional worldviews, so cultural prejudices must be reconciled and the ecology of knowledge promoted as a necessary epistemological tool.[xxviii]. Or what is the same, -quoting Cormac Cullinan- "we still have time for our laws to recognize the right of a river to flow, prohibit acts that destabilize the Earth's climate and impose respect for the intrinsic value of everything." living being and the right to exist of all life", remembering that "without a doubt we must never lose sight of the fact that a legal theory, no matter how promising, is nothing without the political will to put it into practice" (Francois Ost)[xxviii].

[I] Philippe Descola. “Beyond nature and culture.” Culture and Nature. P. 75 – 77. Seen in https://antropologiaunfv.files.wordpress.com/2013/07/578647752-descola-mas-alla-de-la-naturaleza.pdf on 28/12/2023.

[ii] Thomas Heyd. “Nature, culture, and natural heritage: towards a culture of nature.” Ludus Vitalis, vol. XIV, no. 25, 2006. Pages. 135-151

[iii] Susana Borràs Pentinat. “The rights of nature in Europe: towards new transformative approaches to environmental protection.” Journal of European Community Law, 65 (79-120). Pages 82-83.

[iv] Eurgenio Raún Zaffaroni. Pachamama and the human. Ediciones Madres de Plaza de Mayo, Autonomous City of Buenos Aires, October 2011, Page 45.

[v] Mayra Cabral Brea, “Contributions of the Inter-American Court of Human Rights to the jurisprudence of the land.” Law Bar Yearbook – University of Alcalá XIII (2020). Page 218.

[vi] Ricardo Ignacio Bachmann Fuentes and Valentín Navarro Caro. “Rights of nature and legal personality of ecosystems: new paradigm of environmental protection. A comparative approach. International Journal of Political Thought – I Era – Vol. 16 – 2021 – (357-378). P. 361-362

[vii] Ricardo Ignacio Bachmann Fuentes and Valentín Navarro Caro. Op. Cit. Page 360.

[viii] AAVV Environmental law of the 21st century. ISOLMA Editorial, Costa Rica 2019. Page 134

[ix] Ángela María Amaya Arias and others. Recognition of nature and its components as subjects of rights. University extership of Colombia. 2020. Pages. 122-123

[X] Raul Campusano Droguett. “Godofredo Stutzin and the ecological imperative of our time.” Environmental Justice – 10 years -. P. 91-102.

[xi] Jan Darpö. Can nature achieve it? A study on the rights of nature in the European context. Thematic Department of Citizens' Rights and Constitutional Affairs General Directorate of Internal Policies. General Directorate of Internal Policies. March, 2021. Pages. 7 –

[xii] Álvaro Sagot Rodríguez. “The rights of nature, a legal vision of a paradigmatic problem.” Judicial Magazine, Judicial Power of Costa Rica, No. 125, December 2018 (63-102). Pages 73-74.

[xiii] Francisco J. Capacete González. “The Universal Declaration of Animal Rights.” gives. Animal Law (Forum of Animal Law Studies), vol.9/3. 2018. pp. 143-146.

[xiv] David R. Boyd. The rights of nature. A legal revolution that could save the world. Heinrich Böll Foundation, Bogotá Office – Colombia. Colombia, 2020. Page 187

[xv] Adriana Norma Martínez and Adriana Margarita Porcelli. “A new vision of the world: deep ecology and its incipient reception in national and international law. (Second part)". LEX N° 21 – YEAR XVI – 2018 – I (309-348). Page 323.

[xvi] Seen https://www.rightsofrivers.org/espanol on 24/12/2023.

[xvii] Adriana Norma Martínez. Op. Cit. Page 324.

[xviii] Ricardo Ignacio Bachmann Fuentes and Valentín Navarro Caro. Op. Cit. P. 362 – 375.

[xx] Jan Darpö. “Can nature achieve it? A study on the rights of nature in the European context. Thematic Department of Citizens' Rights and Constitutional Affairs General Directorate of Internal Policies. General Directorate of Internal Policies. PE 689.328-March 2021. Page 7

[xx] Ricardo Ignacio Bachmann Fuentes. Op. Cit. Page 374.

[xxx] Ricardo Ignacio Bachmann Fuentes. Op. Cit. P. 364-365

[xxiii] David R. Boyd. The rights of nature. A legal revolution that could save the world. Heinrich Böll Foundation, Bogotá Office – Colombia. Colombia, 2020. Pages. 140-143.

[xxiii] David R. Boyd. Op. Cit. Page 187.

[xxv] Susana Borràs Pentinat. Op. Cit. P. 91-94.

[xxiv] Susana Borràs Pentinat. Op. Cit. P. 94-98.

[xxv] Silvia Bagni, Mumta Ito and Massimiliano Montini. “The debate on the rights of nature in the European legal context.” Catalan environmental dret magazine Vol. 1, 2022 (1 – 33). P. 3-4.

[xxviii] Silvia Bagni, Mumta Ito and Massimiliano Montini. Op. Cit. Page 27.

[xxviii] VVAA. Environmental law of the 21st century. ISOLMA Publishing. Costa Rica, 2019. Page 141