Our planet finds itself in a global ecological crisis. The loss of animal and plant species is so large and fast that some claim our era to be the sixth mass extinction of geological time.1 The actions of one single species – ours – is threatening the very climatological stability necessary for the continuance of life on Earth.2 Present legislative instruments have proven insufficient to tackle this crisis. The need for successful legislation is adamant, and environmental groups are advocating for a variety of possible legal reforms. Rights of Nature is one such legal attempt at saving the world.
The concept of Rights of Nature finds initial motivation in a very pragmatic argument: The survival of human societies is strictly dependent upon the health of Nature. Western science is advancing further towards achieving the same understanding that indigenous peoples have implemented for thousands of years: the absolute interdependence of natural systems, and by extension, human and societal systems.3 Without ecosystem services cleaning air and water, providing nourishment, and protecting societies from harsh climatic conditions, no basic human needs could be fulfilled.4 Without the existence and health of Nature, humans, too, will lose their health and – ultimately – existence. There is thereby a very pragmatic, societal interest in protecting this foundation of all human activity. The satisfaction of a pragmatic interest is, perhaps, sufficient to justify some legal propositions. To achieve a sustainable and acceptable regulation, however, legislation benefits from having an inherent philosophical logic. How can we philosophically justify inherent fundamental rights?
In 1948, the Universal Declaration of Human Rights established the concept of inalienable, inherent rights whose true authority derives from no formal decision making or political power, but rather the simple fact of human existence.5 All humans are considered bearers of basic, equal human rights, simply because they exist as humans. Since there is no further qualification for the enjoyment of rights than mere, living existence, it is possible to question why the enjoyment of these natural rights should be limited to the human community. Life, and existence, is on just as obvious display in plants, animals, and ecosystems. To further investigate who can qualify for the enjoyment of fundamental rights, it must be clarified on what philosophical foundation the only fundamental rights of our legal system today (Human Rights) is based. Two major schools of thought dominate the discourse on the philosophical justification of Human Rights: the interest theory, and the will theory.6
The foundation of the interest theory is that Human Rights are justified by the interests they are meant to satisfy. Rights exist to protect the essential interests of living beings. These interests are defined as “aspect[s] of X’s situation that on balance is typically beneficial for a being like X (namely, a human individual or a collectivity or a non-human animal)”.7 To have a right, you must have an interest that requires protection. In this era of mass-extinction, it has for a long time been apparent that non-human life-forms’ interests in survival and health are in dire need of protection.8 Plants, animals and ecosystems have interests that require protection.
The will theory, on the other hand, is based on human capacity for freedom and personal autonomy.9 To have a right, you must have the will to exercise it. According to some will theorists, this means that the enjoyment of rights is dependent on the ability to personally enforce said rights. This means that you cannot hold a right if you are not capable of defending it yourself. This would, however, render the Human Rights of children, or disabled people, impossible. To accommodate for the rights of these persons, will theorists also accept the rights of those who need guardians to defend their rights for them.10 This guardian solution is very applicable to the concept of Rights of Nature: in any human legal proceedings, a human guardian can speak for the independent rights of the natural entity.11 Plants, animals and ecosystems can exercise their rights towards human subjects through an (adult) human guardian.
The idea that Nature could – through a speaking guardian – have legal standing was presented by a North American lawyer, Cristopher D. Stone, in 1972. Stone argued that the definition of who legally constitutes a person has been rewritten multiple times throughout history. Women, African Americans, children, disabled people, Native Americans: all have historically been considered less than persons worthy of independent rights. The success of every emancipation movement in history has been dependent upon a shift in perspective. In a successful emancipation, perspectives shift from a narrow view of personhood where recognition of the rights of oppressed groups is considered unthinkable, to a slightly broader view. Stone predicted that the recognition of Nature’s rights and legal standing, too, would be considered unthinkable – until it wasn’t.12 That very same year, a judge in the United States Supreme Court referenced Stone’s work in a dissent endorsing the idea of granting legal standing to a forest ecosystem.13 Into the most powerful court of law in North America, the idea of Rights of Nature entered.
North American lawyers in the 1970s did not come up with this idea. The concept of natural units and systems deserving respect and the opportunity to thrive is as old as human society. Indigenous peoples have cultivated and implemented the belief that humans are an integrated, unsuperior, part of Nature for thousands of years. This view of an interdependent and essentially equal relationship has long ago led communities to recognise and respect inherent Rights of Nature, as well as human responsibilities and duties towards natural entities and Nature as a whole.14 The development of Rights of Nature in modern society is to a large extent the result of the imperative advocating efforts of indigenous peoples.15 Much of the Rights of Nature legislation of today, such as the Bolivian, Ugandan and Ecuadorian constitutions, is the direct result of indigenous legal advocacy.16
In conclusion, Rights of Nature are philosophically justifiable by the same reasons Human Rights are. History has proven, time after time, that the legal definition of who is a rights-entitled who and who is a what is changeable and expansive. The efforts of indigenous activists have proven that this definition is even now, in our modern societies, expanding to include natural entities. Long-spanning history has proven that respect for the rights of Nature is far from an alien concept in human society. Lastly, human survival is directly dependent on society’s success or failure to conserve the very thing that Rights of Nature offers protection for: Nature.
Recognition of Rights of Nature is advancing across the globe. Many countries, including Canada, New Zealand, India, Ecuador, Bolivia and Colombia already have legislation in place recognising the Rights of Nature.17 The shift from an anthropocentric system of environmental law revolving around the notion that Nature exists primarily as a resource for humans to exploit, to the recognition of inherent and independent Rights of Nature, is already happening. If this shift gained greater recognition globally, consequences could be vast. A wider respect for the life and health of natural entities could obstruct many of the practices causing the catastrophic global ecological crisis of today. Since present instruments have not been sufficient to hinder mass extinction and climate change, it is time to consider different measures. Rights of Nature can help deliver the environmental protection necessary to achieve a sustainable future for all of humanity, and all life on Earth. It is time to globally recognise the rights of plants, animals, and ecosystems to a healthy life – just like we did for human beings in the 1940s. It is time for a Universal Declaration of the Rights of Nature.
Ida Edling, law student
1 International Union for Conservation of Nature. Species Extinction – The Facts. International Union for Conservation of Nature. 2007-05-01.
2 Masson-Delmotte, V., P. Zhai, A. Pirani, S.L. Connors, C. Péan, S. Berger, N. Caud, Y. Chen, L. Goldfarb, M.I. Gomis, M. Huang, K. Leitzell, E. Lonnoy, J.B.R. Matthews, T.K. Maycock, T. Waterfield, O. Yelekçi, R. Yu, and B. Zhou (eds.). Climate Change 2021: The Physical Science Basis. Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change. Interngovernmental Panel on Climate Change. Cambridge University Press: 2021. In Press.
3 Folke, Carl; Biggs, Reinette; Nordström, Albert V.; Reyers, Belinda and Rockström, Johan. Social-ecological resilience and biosphere-based sustainability science. Ecology and Society. Vol. 21, No.3, 2016: 1.
4 Elmqvist, Tomas and Lindgren, Elisabeth. Ecosystem Services and Human Health. Oxford Research Encyclopedia of Environmental Science. 2016. doi:10.1093/acrefore/9780199389414.013.86.
5 Universal Declaration of Human Rights, udhr.pdf (un.org), preamble. See also the preamble of United Nations International Covenant on Civil and Political Rights, International Covenant on Civil and Political Rights – A/RES/21/2200 A Annex 2 – UN Documents: Gathering a body of global agreements (un-documents.net).
6 Frydrych, David. What Is the Will Theory of Rights? Ratio Juris. Vol. 32, issue 4, 2019: 455-472. p. 456.
7 Kramer, M. H. In Defence of the Interest Theory of Right-Holding: Rejoinders to Leif Wenar on Rights. Chap. 3 in New Essays on the Nature of Rights. 2017. Ed. M. McBride. Oxford: Hart Publishing. p. 49.
8 International Union for Conservation of Nature. Extinction crisis continues apace. International Union for Conservation of Nature. 2009-11-03. https://www.iucn.org/content/extinction-crisis-continues-apace (Retrieved 2021-09-30).
9 Fagan, Andrew. Human Rights. Internet Encyclopedia of Philosophy. https://iep.utm.edu/hum-rts/#SH4b (Retrieved 2021-09-30).
10 Frydrych, David. What Is the Will Theory of Rights? Ratio Juris. Vol. 32, issue 4, 2019: 455-472. p. 460.
11 Stone, Christopher D. Should Trees Have Standing? New York: Oxford University Press, 2010. p. 9.
12 Ibid. p. 1.
13 Sierra Club v. Morton, 405 U.S. 727 (1972).
14 Jang, Mallory. Rights of Nature and Indigenous Peoples: Navigating a new course. The University of British Columbia, Centre for Law and the Environment. 2021-09-02, https://allard.ubc.ca/about-us/blog/2021/rights-nature-and-indigenous-peoples-navigating-new-course/centre-law-and-environment (Retrieved 2021-10-07).
15 Herold, Kiana. The Rights of Nature: Indigenous Peoples reframing law. Intercontinental cry. 2017-01-06. https://intercontinentalcry.org/rights-nature-indigenous-philosophies-reframing-law/ (Retrieved 2021-10-07).
16 Russell, Ruby. Rights of nature: Can Indigenous traditions shape environmental law? DW. 2020-02-05. https://www.dw.com/en/environment-nature-rights-indigenous-activism-legal-personhood/a-52186866 (Retrieved 2021-10-07).
17 Jang, Mallory. Rights of Nature and Indigenous Peoples: Navigating a new course. The University of British Columbia, Centre for Law and the Environment. 2021-09-02. https://allard.ubc.ca/about-us/blog/2021/rights-nature-and-indigenous-peoples-navigating-new-course/centre-law-and-environment (Retrieved 2021-10-07); Province de Québec. Résolution n°025-21 Reconnaissance de la personnalité juridique et des droits de la rivière Magpie – Mutehekau Shipu; Ecuador: 2008 Constitution in English (georgetown.edu); Margil, Mari. The rights of nature gaining ground. Open Global Rights. 2018-11-14. https://www.openglobalrights.org/the-rights-of-nature-gaining-ground/?lang=English&fbclid=IwAR0JlmuZoHdY4IHnckB15IfRLGdzixPg60j1s1puYpytUU8ssbGmesZuTfQ (Retrieved 2021-10-12).