11.1 Introduction
Nature is a subject of rights. The legal systems of countries as dissimilar as Ecuador, Bolivia, New Zealand, the United States, and Uganda have recognized this new legal subject and have granted nature rights such as the right to life, the functioning of its vital cycles, and the restoration of its processes.Footnote 1 Nature as a subject of rights therefore opposes the nature–object perspective that has historically been dominant in the West. The rights of nature challenge the notion of nature as an object that humans should describe, understand, and master; as an instrument that exists solely to satisfy human needs; and as property that humans can exploit without limit. The rights of nature thus challenge the objectification of nature, its absolute instrumentalization, and the anthropocentrism, and extractivism with which science, religion, economics, and law in the West have typically described, evaluated, and interacted with nature.Footnote 2 For the rights of nature, these ideas have not only had discursive consequences; they have also had practical consequences. These ideas are one of the main causes of the contemporary global environmental crisis. The rights of nature therefore emerge as a discursive and practical model that aims to rethink the concept of nature, as well as the relationship between nature and humans, so that we can effectively address the radical environmental degradation we are currently experiencing.Footnote 3
The rights of nature are now a global discursive and practical pattern.Footnote 4 Between 2006, the year in which the rights of nature took precise legal form, and June 2021, we can find 409 initiatives related to the rights of nature around the world. Of these initiatives, 66.5 percent recognize the rights of nature as a whole, 17.8 percent of rivers or other aquatic ecosystems, and 10.5 percent of animals. Thirty-nine countries account for 90 percent of all initiatives.Footnote 5 However, the vast majority (80 percent) of the initiatives were submitted in the Americas, and 91 percent of the legal texts were written in English or Spanish. The biggest group among all initiatives (38 percent) is made up of local legal norms.Footnote 6
We can divide this global discursive and practical pattern into three parts: on the one hand, the paradigmatic articulations of the discourse. The prototypical models of the rights of nature emerge from two countries in the Global South, Ecuador, and Bolivia, and from a peripheral country in the Global North, New Zealand. On the other hand, discursive and practical patterns that reproduce the conceptual structures of the prototypical discourses, although they may vary or complement them, such as the perspectives on the rights of nature that have been embraced by Argentina, Panama, India, Pakistan, and the international human rights system. Finally, the discourses and practices that have opposed the rights-of-nature discourse, including most European countries.Footnote 7
The discursive and practical pattern of rights of nature has been analyzed from a variety of academic perspectives. The rights of nature are an object of study that has firmly positioned itself in areas as diverse as constitutional law, environmental law, legal and political theory, and the social sciences. Constitutional law scholars have examined the contents of political charters that, like the Ecuadorian or Bolivian ones, recognize nature as a subject of rights or that recognize principles such as good living that intersect with this type of subject of rights.Footnote 8 Environmental law scholars have analyzed the tensions that exist between dominant environmental law and the rights of nature.Footnote 9 Legal or political theorists have been concerned with studying the conceptual architecture of these rights or their foundations.Footnote 10 Finally, social scientists are beginning to investigate the efficacy of the rights-of-nature discourse.Footnote 11
This chapter aims to contribute to the understanding of the rights of nature from a different perspective: comparative law. More precisely, this chapter aims to contribute to the description, analysis, and comparison of the discursive patterns that convey and underpin the rights of nature. It also aims to analyze these discursive patterns from the perspective of global legal pluralism.Footnote 12 Rights of nature are a heterodox discourse that questions the conventional legal and political views on nature and its relationship with human beings, as well as the conventional views about key components of global legal pluralism. To meet these objectives, I divide this chapter into two parts. In the first part, I describe, analyze, and compare three types of discourse related to the rights of nature. Initially, I examine their prototypical models, that is, the models emerging in Bolivia, Ecuador, and New Zealand. Then, I study discourses on the rights of nature that reproduce the conceptual structures of the paradigmatic models, including those emerging in the international human rights system and the legal systems of Colombia and India. Finally, I explore discourses that resist the rights of nature, such as those emerging in the legal systems of much of Western Europe. Section 11.2 therefore divides discursive patterns related to the rights of nature into poietic, mimetic, and resistance patterns.
In Section 11.3, I analyze rights of nature from two perspectives that are central to contemporary comparative law: the political economy of legal knowledge and explanatory theories of legal change. These perspectives revolve around three questions that are of particular interest for a full understanding of rights of nature. The political economy of legal knowledge investigates the discursive and practical patterns that determine where legal knowledge is (and should be) created and who can (and should) create, use, and transfer it.Footnote 13 Explanatory theories of legal change account for the variables and processes that motivate transformations of legal orders.Footnote 14 Rights of nature offer a heterodox interpretation of these two perspectives; they question the conventional views about the production, exchange, and use of legal knowledge and about the variables that explain legal change. I therefore divide this second part of the chapter into two subsections.
In Section 11.3.1, I explore how rights of nature challenge the conventional interpretation of the political economy of legal knowledge. Rights of nature are culturally hybrid, as well as epistemologically, politically, and legally heterodox. Rights of nature, and their paradigmatic forms, have been articulated in countries that have historically been considered weak or marginal to the creation of original legal knowledge and that draw on knowledge, such as that of indigenous peoples, that has usually been marginalized from state lawmaking processes. Likewise, the contents of the rights of nature question some of the central premises of modern law’s conventional interpretations, for example, who can be a subject of rights and what rights can be granted to nonhuman entities. In Section 11.3.2, I study how national legal systems have included rights of nature within their structures through a process of cross-fertilization that involves not only North–South processes of knowledge exchange, as the conventional view argues, but also heterodox processes of South–South and South–North exchange.
I base the theses offered in this chapter on twenty-two national reports and six special reports that were written for the 2022 Asunción Conference of the International Academy of Comparative Law.Footnote 15 The two types of reports are a consequence of a set of questions that Ralf Michaels and I drafted in our capacity as general rapporteurs for the project. This set of questions touches on central dimensions of the discourse and practice of the rights of nature, for example, their contents, the institutions that recognized them, their foundations, their effectiveness, and their relationship with international law.Footnote 16 The national reports, as their name suggests, focus on the various aspects that make up the rights of nature in a particular legal system. The special reports, in contrast, focus on specific issues that we, as general rapporteurs for the project, consider key to a full understanding of the rights of nature, including their philosophical underpinnings and their tensions with international law. The theses that I offer in this chapter also draw on other primary and secondary sources to complement the empirical and theoretical information provided in the national and special reports. Finally, the theses I present in this chapter are theoretically informed. The questions that guided the national and special reports, as well as the conceptual lenses that allowed for the interpretation of the empirical information they (and other sources) offer, fall within the following theoretical approaches: legal epistemology and epistemic justice; legal pluralism; and comparative law explanatory theories of legal change.
11.2 Mapping the Global Legal Discourse on Rights of Nature
We can divide the global discourse on rights of nature into three types of patterns: poietic, mimetic, and resistance. Poietic patterns are those that provide the constitutive elements of the discourse, those that articulate the structural components of the global discourse on rights of nature.Footnote 17 These poietic patterns emerge in the legal systems of Ecuador, Bolivia, and New Zealand.Footnote 18 The rights of nature literature widely considers the models constructed in these three countries as prototypical.Footnote 19 Mimetic patterns are those that reproduce the structures of poietic patterns, although sometimes these are partially transformed or some new contingent components are added to them. Countries of the five continents have articulated mimetic patterns: in Africa, Uganda and Nigeria; in the Americas, Colombia, Panama, Argentina, and Canada, for example; in Asia, India, Bangladesh, and Pakistan; in Europe, Spain; and in Oceania, Australia.Footnote 20 Finally, patterns of resistance are those that oppose the recognition of the rights of nature. In Europe, for example, until 2022, no country had legally recognized rights of nature and some social, political, or academic sectors opposed them actively. The exceptional and recent recognition in Spain of the Mar Menor as a subject of rights confirms this rule.Footnote 21
The poietic discourses on the rights of nature revolve around the following three components: subject, rights, and representation.Footnote 22 The prototypical discourses constructed in Ecuador, Bolivia, and New Zealand create a new legal subject, to whom rights are recognized and whose representation is given to third parties, individuals, or institutions. Poietic patterns emerge with the following legal instruments: the Ecuadorian Constitution of 2008,Footnote 23 the Bolivian Mother Earth Laws 71 of 2010Footnote 24 and 300 of 2012,Footnote 25 and the New Zealand Te Urewera Act of 2014 and Te Awa Tupua Act of 2017.Footnote 26 In these legal norms a new subject is created: nature. In all three countries this new subject is structured around the following elements: nature is (i) a juridically autonomous subject; (ii) culturally hybrid; (iii) sacred and eternal; and (iv) conceived as a space that is both inhabited and constituted by a set of interdependent organic and inorganic entities. In these countries, however, what is conceived as “nature” has some variations.Footnote 27 In Ecuador and Bolivia, the new subject is nature as a whole while in New Zealand the new subject is identified with what used to be a natural park, as well as with a river.Footnote 28
The new legal subject has a life and interests of its own; it is a subject that is different from human beings, who also compose it, and a subject that acts according to its own dynamics and interests. This subject, moreover, is a rights-holder. In the case of Bolivia and Ecuador, nature is entitled to such rights as the right to life, to its vital cycles, and to have them reestablished in case they are disturbed.Footnote 29 In the case of New Zealand, parliament recognized Te Urewera and the Whanganui River as having the same rights as any other legal subject in the legal system.Footnote 30 This subject is also constructed from the intertwining of indigenous religious traditions (Andean and Māori) and modern Western legal traditions.Footnote 31 Indigenous peoples imagine nature as a mother, as the vital energy from which life emerges. Mother Nature has agency. Mother Nature has interests. Mother Nature is potentially responsible for her actions.Footnote 32 However, Pachamama and Papatūānuku intersect with the concepts “subject of rights” and “rights” that are central to Western legal modernity. Similarly, following the traditions of the Andean and Māori indigenous peoples, this new legal subject is imagined as a deity that escapes the finite time of humans.Footnote 33 The Ecuadorian constitution, the Bolivian Mother Earth laws, and the New Zealand Te Urewera and Te Awa Tupua laws recognize the religious dimension of Mother Earth for indigenous Andean and Māori peoples.Footnote 34 This sacralized subject is also understood as a space that forms an internally heterogeneous whole whose components are interdependent and interact continuously.Footnote 35 Nature is imagined as both a subject and a space that is inhabited by all the organic and inorganic entities that exist around the world. Humans, moreover, are not separate from, opposed to, or destined to dominate nature; humans are nature and do not occupy a privileged place in the ecosystemic whole. Humans, though, need the other elements that make up nature to survive and have a full life. Consequently, nature is not understood as a being that must be conserved, that cannot be exploited in any way. Humans can exploit the other elements that make up nature to satisfy their needs and desires. However, they cannot do so in a way that disrupts the ecosystemic balance or that ignores principles such as reciprocity and interdependence.
The nature-subject, however, cannot express its will by itself. It does not have a voice that humans can hear. Consequently, the poietic discursive patterns of the rights of nature create a system of representation for defending the interests and rights of nature.Footnote 36 In the case of Ecuador, any person can represent nature to defend its rights;Footnote 37 in Bolivia, the Defensoría de la Madre Tierra, in particular, and the State, in general, should represent nature and protect its rights;Footnote 38 in New Zealand, parliament created two legal persons to represent the interests and rights of Te Urewera and the Whanganui River.Footnote 39 Humans (or their institutions), thus, have a duty to interpret and protect nature. The rights of nature and their representatives, however, are in tension with other rights that are also part of the legal systems in which they are located, for example, the right to a healthy environment, the right to equality, and the right to sustainable development. These rights protect nature by appealing to an anthropocentric perspective (nature is defended to safeguard the interests of human beings) or conceive nature as a resource that should be exploited to generate wealth that can be redistributed in the political community. Hence, Bolivia and Ecuador are currently described as neo-extractivist countries or countries committed to “social extractivism.”Footnote 40 Similarly, in New Zealand there are questions about how to balance rights of nature and environmental laws, such as, the Resource Management Act of 1991, the statute “that establishes New Zealand’s legislative framework for decision-making and planning of the use of the environment.”Footnote 41
The mimetic discourses that have emerged across the globe reproduce the poietic discourses of the rights of nature. The former iterate the structure of subject, rights, and representation that constitute the spine of the latter.Footnote 42 This is the case of the rights of nature discourses articulated in countries such as Colombia, Canada, India, Spain, and Uganda. In these mimetic discourses, nature is recognized as a rights-holder subject that must be represented by particular persons or institutions. However, some of these discursive patterns partially transform or complement the prototypical nature-subject discourses. Three of these modifications are particularly relevant for understanding the global discourse on the rights of nature. On the one hand, we can note a process of secularization of the foundations of the nature-subject or a variation in its religious foundations. In countries such as Colombia, Panama, Spain, and the United States, the legal recognition of the nature-subject does not appeal to religion, although in these countries legal and political operators accept that the prototypical discourses have as their source the religious traditions of some indigenous peoples.Footnote 43 Nature, in mimetic discourses, remains sacred. However, the sacredness of nature is reinterpreted as the exceptional respect it deserves given its inherent value and, therefore, as the duty of human beings not to harm it. Thus, for example, the Colombian Constitutional Court, in the Atrato River opinion, based the declaration that this river is a subject of rights on what it called biocultural rights, through which the Court connects nature with cultural minorities.Footnote 44 The Court does not explicitly allude to the cultures of indigenous peoples to support its decision to recognize rights to the river. In the case of India, the recognition of the Ganges River or some glaciers as subjects of rights was based on Hinduism. The High Court of Uttarkaband appealed to sacred writings of the majority religion in India to support the idea of the nature-subject.Footnote 45
On the other hand, some mimetic discourses consider that the protection of nature can (and should) be achieved by using both rights of nature and environmental law.Footnote 46 Although conceptually these two types of discourses are incompatible, the former is based on an ecocentric perspective while the latter is based on an anthropocentric point of view, in political and legal practice, the argument goes, they can (and should) be used at the same time to address the serious environmental problems that human beings face today. The clearest example of this strategy for the protection of nature is the argumentation offered by the Colombian Constitutional Court in the Atrato River ruling.Footnote 47 In this judgment, the Court recognizes the river as a subject of rights and creates the institution of the “river guardians” to protect it, following the structures of the prototypical discursive pattern. However, at the same time, the Court uses national and international environmental law for the defense of the new subject of rights.Footnote 48 The Court considers that nature can (and should) be protected for the inherent value it holds, but also for the instrumental value it has for human beings. We can also find this same argument in some interpretations of the international human rights system.Footnote 49
Finally, the mimetic discourse that emerges in international law is beginning to vary the transfer and reinterpretation processes of poietic discourses. In the prototypical discourses’ moments of emergence and consolidation, these discourses traveled between national legal systems or moved from national legal systems to international law.Footnote 50 Today, however, the international law discourse promoting the rights of nature is beginning to develop a top-down diffusion process, from international law to national law.Footnote 51 This new process adds a new layer of legitimacy to the legal discourse on the rights of nature (benefiting from the legitimacy that international law enjoys in many countries), helps to entrench it as a global discourse, and contributes to weakening the objections that resistance discourses have raised against the idea of the nature-subject.
To end, resistance discourses are those that explicitly or implicitly oppose rights of nature in the legal systems in which they circulate. This does not mean, of course, that in the legal systems where resistance discourses emerge or move there are no rights of nature or there are no movements promoting or examining rights of nature. In Europe, for example, academia and social organizations have extensively discussed or promoted rights of nature.Footnote 52 Resistance discourses oppose rights of nature for the following reasons. First, these discourses consider that the nature-subject is premised on the re-enchantment of the world – a retreat from the processes of rationalization, secularization, and scientization of the natural world that shape the modern project. This perspective identifies rights of nature with an animism that intersects with some religious perspectives rightly displaced by modernity. Second, the rights of nature call into question central elements of the grammar of modern law. Recognizing nature as a subject controverts the idea that, as a general rule, only those individuals who have agency, who are autonomous, rational, and therefore responsible, can be considered subjects of rights. For the discursive resistance patterns, the rights of nature do not fit into the modern legal machinery that allows its legal systems to function efficiently.Footnote 53
Third, modern legal systems already have the necessary tools to confront the environmental problems that are currently degrading ecosystems all over the world. National and international environmental laws are powerful instruments to confront the environmental degradation that characterizes the Anthropocene. The challenge lies in the application of existing environmental legal frameworks, not in the creation of new frameworks that contradict environmental law’s premises and conclusions.Footnote 54 Fourth, the rights of nature go against the dominant geopolitics of legal knowledge. The premises from which this geopolitics start indicate that European culture is the source of the central legal families in the history of law, civil law, and common law. Non-European legal systems, with a few exceptions such as the United States, are merely minor iterations of European legal systems. The implicit premise of some of the resistance discourses is then that the Global South would have nothing to teach the Global North on legal matters.Footnote 55 Fifth, and last, rights of nature are an obstacle for development and redistribution policies. They are a tool for unjustly limiting the exploitation of natural resources that are central for economic growth, a key component of development. Rights of nature, furthermore, would eliminate or radically limit extractive activities that are the sources of needed jobs and tax revenues that are necessary for funding state’s social programs.Footnote 56
11.3 Global Legal Pluralism
The global discourse on rights of nature has emerged, diffused, and transformed itself through processes connected to global legal pluralism.Footnote 57 In this section, I will examine the rights-of-nature discourse from the following two points of view: the political economy of legal knowledge and cross-fertilization.Footnote 58 The analysis presented revolves around the prototypical models of rights of nature. However, where relevant, I will also include mimetic discourses on the rights of nature in my analysis.
11.3.1 The Political Economy of Legal Knowledge and the Rights of Nature
Rights of nature challenge the dominant political economy of legal knowledge in that they are (i) culturally hybrid; (ii) epistemologically subversive; and (iii) politically and legally emancipatory.
11.3.1.1 The Rights of Nature and Cultural Hybridity
The paradigmatic models of the rights of nature, the Bolivian, Ecuadorian, and New Zealand models, challenge the political economy of legal knowledge in that they are culturally hybrid.Footnote 59 These models combine the vocabulary and grammar of modern law with the religions of indigenous Andean and Māori peoples. The prototypical models of the rights of nature simultaneously “are” and “are not”: they are modern law and they are indigenous law. The syncretism of these models calls into question the following central ideas of the dominant political economy of legal knowledge:Footnote 60 (i) there are rich cultures that can create legal knowledge and poor cultures that cannot; (ii) the Global North has rich cultures that enable the production of law while the Global South has weak cultures that do not enable the production of real law, only morality or politics; (iii) within the Global North there are some cultures that are the origin of Western law (e.g., French, British, and German) and other cultures that, for historical reasons (imperialism and settlement colonization, for example), simply reproduce those cultural and legal matrices (e.g. Australia and New Zealand); (iv) Global North law is the only (or the most powerful) legal standard and can be transferred globally; (v) Global South countries must transplant this single global legal standard to their jurisdictions if they want to construct true law; and (vi) when the Global North law that is reproduced in the lesser cultures of the Global North or transplanted to the Global South mixes with local culture, it becomes contaminated. The purity of true law is tainted; it loses clarity and precision; and it becomes a culturally-illegitimate offspring that is conceptually and practically ineffective.Footnote 61
The paradigmatic models of the rights of nature conceive of nature as an autonomous legal subject that has a set of rights.Footnote 62 This new legal subject thus draws conceptually on the grammar and vocabulary of modern law. Categories such as “rights,” “subject of rights,” “agency,” “autonomy,” and “interests” are central to the construction of the nature-subject. These categories, moreover, are put into action following the principles and rules that regulate their uses, for example, only subjects with agency or self-interest can be rights-holders. At the same time, however, the paradigmatic models of the rights of nature distance themselves from the grammar and vocabulary of modern law. These models, drawing on indigenous (Andean or Māori) religious, political, and legal traditions, anthropomorphize, sacralize, and interpret nature as a biocentric and ecosystemic conceptual space.Footnote 63
The subject of rights that prototypical models of the rights of nature create, furthermore, must be interpreted in light of other legal principles and rules that are influenced by or recognize indigenous cultural traditions in order to be properly understood and applied. This set of rights and principles puts modern law (or its dominant interpretations) even more strongly into question. In the Ecuadorian and Bolivian cases, the principles of plurinationality, interculturality, and good living.Footnote 64 The first recognizes that each of these states is constituted not by a single culturally-homogeneous nation, as the classical nation-state model advocates, but by several nations that have cultural and legal traditions different from those upheld by state law and the dominant white/mestizo culture. The second principle prescribes that the basic structure of the state must be built through the continuous dialogue of all its constituent cultures. The cultures that constitute each state should not be understood as closed and isolated systems that repel or only occasionally interact with each other. The third principle is filled with content through the principles of relationality, interdependence, reciprocity, and balance among human beings, and between them and the other components of nature.Footnote 65
In the New Zealand case, the rights of the Whanganui River intersect with four values that the Crown–Māori agreement on the Whanganui River Basin and the Te Awa Tupua Act that ratifies it recognize explicitly (the values that intersect the forest upon which rights are conferred in the Te Urewera Act are analogous):Footnote 66 (i) Ko te Awa te mātāpuna o te ora (The river is a source of physical and spiritual sustenance). This first value prescribes that Te Awa Tupua (the Whanganui River basin) is a physical and spiritual entity that ensures the sustenance of all natural resources and peoples inhabiting its banks; (ii) E rere kau mai te Awa nui mai te Kahui Maunga ki Tangaroa (The great River flows from the mountains to the sea). This second value states that the Whanganui River basin is a living, indivisible whole from its source to its mouth; (iii) Ko au te Awa, ko te Awa ko au (I am the river and the river is me). This third value affirms that the Māori people are interconnected and at the same time responsible for the Whanganui River basin; and (iv) Ngā manga iti, ngā manga nui e honohono kau ana, ka tupu hei Awa Tupua (The large and small streams that intersect and form a river). The latter value provides that the Whanganui River basin is a whole made up of many elements that aim to maintain and promote its wellbeing.
The rights of nature, in short, are a hybrid legal product that breaks with central rules and principles of the dominant political economy of legal knowledge. Rights of nature, first, demonstrate the cultural diversity that exists in contemporary states. The rights of nature make explicit that cultural homogeneity within states is not a descriptive but a normative argument that generally leads to the marginalization of minority cultures.Footnote 67 Second, it makes clear the richness of non-Western cultures and their capacity to create valuable legal knowledge.Footnote 68 Third, it shows that this legal knowledge can be useful to other cultural communities and, therefore, that it can be exportable or used productively within the states in which it emerges. Fourth, it illuminates precisely the ways in which cultural hybridity is not a source of pollution but of legal creation and innovation.Footnote 69 Fifth, and finally, it blurs the distinction between original law and copy law that forms the basis for much of the dominant political economy of legal knowledge.Footnote 70
11.3.1.2 The Rights of Nature and Epistemic Justice
The rights of nature are epistemically subversive because they are articulated and grounded by appealing to two sources of knowledge that have traditionally been considered weak for the generation of legal products.Footnote 71 The rights of nature face a double historical epistemic injustice. The first epistemic injustice they face is the exclusion or marginalization of the three legal systems that create the prototypical models of the rights of nature (Bolivia, Ecuador, and New Zealand) from the global legal dialogue. These legal systems have been excluded or marginalized insofar as they have been qualified, generally a priori, as weak spaces for the creation of original legal products. The legal systems of these three countries, consequently, are not considered valuable objects of study by the transnational legal academy, their legal institutions are regarded as mere minor iterations of the law that is created in other legal systems, and their academic output is ignored or undervalued by the international nodes of legal research.Footnote 72 The second epistemic injustice with which the rights of nature struggle is the exclusion or marginalization of indigenous legal, moral, political, and religious knowledge from the processes of legal knowledge creation in modern states.Footnote 73
This section thus focuses on showing how the political economy of legal knowledge has closed the doors to two peripheral legal voices. Section 11.3.1.1, instead, focused on the cultural hybridity of the rights of nature to show how the normative patterns that determine who can create, transfer, and legitimately use legal knowledge negatively evaluate non-Western cultures, deny the possibility that they can create legal knowledge, and disqualify any syncretic legal product. The two sections, however, are closely linked, complementing and nourishing each other.
Countries of the Global South or peripheral countries of the Global North have created the paradigmatic formulations of the rights of nature.Footnote 74 Ecuador is the only country in the world that has recognized rights of nature constitutionally.Footnote 75 Bolivia was the first country to recognize the rights of nature in two laws of national scope that develop aspects of the constitution that intersect with this type of rights: the recognition of Pachamama as a deity and the principle of good living.Footnote 76 New Zealand, finally, is the first country to issue two national laws related to the rights of nature that derive from the interpretation to be given to a country’s founding treaty (the Treaty of Waitangi).Footnote 77 All three countries also offer an institutional design for the implementation of the rights of nature.Footnote 78 The countries of the Global North, in contrast, have not articulated a discourse on the rights of nature, have not included it in their legal systems, or have only done so in local spaces that have little political, legal, or economic relevance.Footnote 79 Australia and Spain are the only exception to this rule.Footnote 80 In Africa, only Uganda and Nigeria have conferred upon rights to nature, and only India, Pakistan, and Bangladesh have done so in Asia.Footnote 81
Dominant legal epistemology usually imagines Ecuador, Bolivia, and New Zealand, however, as weak spaces for the creation of legal knowledge, mimetic countries, and not poietic in legal matters.Footnote 82 The dominant political economy of legal knowledge has historically considered the legal systems of Ecuador, Bolivia, and New Zealand to be child systems that reproduce the premises and contents of the mother systems with varying degrees of precision.Footnote 83 Ecuador and Bolivia, which belong to the civil law tradition, reproduce the premises and fundamental contents of the French and German legal systems. New Zealand, which belongs to the common law tradition, reproduces the legal system of Great Britain. In the dominant comparative law interpretation of the twentieth century, largely focused on legal families, the Ecuadorian, Bolivian, and New Zealand legal systems are iterations of other legal systems. In this line of argumentation, to understand the structures of the two families that make up Western law, it is necessary to examine the parent legal systems, not the offspring.Footnote 84 The legal systems of these three countries, therefore, are not relevant objects of study and do not generate original legal products of quality. The legal voices of these three countries are therefore excluded or marginalized from the global legal dialogue.
In this case, however, Bolivia, Ecuador, and New Zealand construct a legal product that is interpreted as an instrument that can help address the radical environmental deterioration being experienced around the world.Footnote 85 Politicians, academics, and activists, among others, interpret this legal product as one that can (and should) travel from the peripheral legal spaces in which it was created to the rest of the world, including the Global North. The Ecuadorian Constitution, the Bolivian Mother Earth laws, and the Te Urewera and Te Awa Tupua laws in New Zealand are exportable legal products. The contents of these legal artifacts could contribute to rethinking the relationships between humans, nature, law, and economy that have largely been the cause of the environmental crisis that the world is experiencing in the twenty-first century.Footnote 86 The Ecuadorian and Bolivian legal barbarians, or the New Zealand peripheral subjects of rights, are shown as autonomous legal subjects who have the capacity to create original juridical knowledge. Likewise, they are shown as subjects whose identities are a consequence of the internally-heterogeneous and strong cultures that construct them and that they, at the same time, help to construct.
The rights of nature are also epistemically innovative because they interweave the contents and interpretations of the state legal systems of Ecuador, Bolivia, and New Zealand with the religious traditions of the indigenous peoples that make up these three countries.Footnote 87 The knowledge of Andean, Aymara, and Quechua indigenous peoples, among others, and the knowledge of the Māori people, are included in state legal systems through the rights of nature. The state legal system hears and includes the voices of these cultural minorities. As indicated in Section 11.3.1.1, through the rights of nature, the Ecuadorian, Bolivian, and New Zealand legal systems incorporate into their structures central ideas from the religious and cultural traditions of the indigenous Andean and Māori peoples.Footnote 88
This indigenous knowledge, it is important to note, is not incorporated into a part of the formal legal system that is only applicable to indigenous peoples. It is not a mechanism to enrich or complexify indigenous jurisdictions or indigenous peoples’ self-governance rights. This knowledge is included in legal norms, the Constitution, or statutes that apply to all citizens.Footnote 89 The recognition of cultural diversity through the rights of nature, the recognition of the value of the historically-marginalized knowledge of indigenous peoples, is therefore transformative. Indigenous peoples’ knowledge does not “go up” to the legal order to “come down” again to their own political and legal spaces, as norms to be applied only within the indigenous jurisdiction, for example. This knowledge “goes up” into the legal system and “comes down” as norms to be applied to all members of the political community. Furthermore, this knowledge, already intertwined with state law, as mentioned in Section 11.3.1.1, is reinterpreted as valuable knowledge that can be used to solve global, regional, or other states’ problems.Footnote 90 Rights of nature, a hybrid legal product, a mixture of a child legal system and indigenous knowledge, is assessed as a relevant transnational academic object of study and as a legal product translatable to other state jurisdictions.Footnote 91
The rights of nature are thus a materialization of epistemic justice. The voices of entire peoples that the law had disregarded and dismissed as primitive or barbaric are now heard to create legal knowledge. The voices of indigenous peoples, in the best interpretations of the rights of nature, are not exoticized or romanticized. Rather, they are understood as sources of knowledge that offer innovative ways of thinking about the relationship between humans, nature, law, and economics; they are sources of knowledge that can enrich thinking about these issues anywhere in the world.Footnote 92
11.3.1.3 The Rights of Nature, Epistemic Justice, and Political Emancipation
The rights of nature are also epistemically innovative because (i) they challenge some of the assumptions of modern Western law and (ii) they are created through heterodox and emancipatory processes of legal knowledge generation. The rights of nature challenge the idea that only human beings can be rights-holders and, correspondingly, that subjective rights can only be assigned to human beings. Modern Western law, founded on liberalism, considers as a rule that only moral, autonomous, and rational agents can be holders of subjective rights.Footnote 93 Legal persons, minors, and some people with severe cognitive or physical disabilities constitute the exception that confirms the rule.Footnote 94 For this legal tradition, nature, a thing over which rights are vested, particularly the right to property, could never be the holder of subjective rights. However, the rights of nature recognize that nature is a non-human agent that can hold rights and, therefore, also obligations. This new legal subject has no voice of its own, but human beings can represent its voice, as managers do with respect to legal persons, or as parents and guardians represent minors or persons with particularly serious disabilities.Footnote 95 While there may be doubts about how the voice of nature can be heard, or how to interpret it, the attempt to do so implies an important shift away from the anthropocentric perspectives constitutive of modern Western law that prescribe that the only voice to be heard is that of human beings: the center of the universe.Footnote 96
The rights of nature are also epistemically emancipatory because they are a consequence of constitutional or legal processes involving actors who have historically been on the margins of both the political community and state law-making processes.Footnote 97 Indigenous peoples in Ecuador, Bolivia, and New Zealand have had very few representatives in legislative bodies and their interests have not usually been taken into account by the three branches of government or dominant political parties. In the case of rights of nature, in contrast, indigenous peoples themselves present and defend their traditions about nature. In Ecuador, the national constituent assembly had indigenous assembly members who promoted the recognition of the rights of nature as part of the agenda of the political movements they represented.Footnote 98 Similarly, indigenous organizations put pressure on the constituent assembly to recognize the rights of nature and indigenous organizations were part of the political movement that brought President Rafael Correa to power, who later convened the national constituent assembly.Footnote 99 In Bolivia, the government of Evo Morales, an indigenous Aymara, as well as some indigenous movements and parties, promoted the recognition of Pachamama and the principle of buen vivir in the 2009 constitution. Likewise, they promoted the recognition of the rights of nature in the laws of Mother Earth.Footnote 100 Cultural minorities in Bolivia and Ecuador managed to position themselves politically in these processes of legal creation and were able to make their voices heard effectively.Footnote 101
In New Zealand, the recognition of the Whanganui River as a subject of rights is a consequence of a long political process that ended with the Te Awa Tupua agreement, which reinterpreted the founding treaty of New Zealand: the Treaty of Waitangi.Footnote 102 The Māori people, the people who inhabited the lands that are now New Zealand before the arrival of Europeans in Oceania, have been on the margins of the political community. However, in this case, they reached an agreement with the government to change the dominant understandings of the treaty that created the New Zealand political community. Both the process and its conclusions are challenging to the historical status quo in New Zealand for the following reasons: the negotiation that ends with the agreement is between the Māori people and the New Zealand government, two peoples who negotiate horizontally;Footnote 103 the agreement conferring upon rights to the Whanganui River is a syncretic product in which indigenous traditions and those of the dominant culture intersect;Footnote 104 the process of creating the statute that ratified the treaty in parliament was attended for the first time by Māori leaders;Footnote 105 and the legal person representing the Whanganui River is composed equally of representatives of the parties creating the treaty.Footnote 106 New Zealand, like Ecuador and Bolivia, is a culturally-diverse country that has historically discriminated against their cultural minorities. The rights of nature show that this inequality of power and these injustices are not inevitable or necessary.
11.3.2 Cross-Fertilization and the Rights of Nature
The emergence and transnationalization of rights of nature call explanatory theories of legal change in comparative law into question.Footnote 107 The emergence and denationalization of rights of nature are not a consequence of changes in the monolithic and homogenous cultural or economic structures of which they are supposedly their epiphenomenon, they are not a consequence of one-way transfers between two countries, usually from the Global North to the Global South, and they are not an effect of legal transfers that go from the local to the global and then travel to new local spaces that adapt and transform them. Rather, the following internal and external processes can explain the emergence and transnationalization of the rights of nature.
The paradigmatic models of the rights of nature, the Ecuadorian, Bolivian, and New Zealand models, emerged as a consequence of political processes that recognize the multicultural character that these three States have had since their inception.Footnote 108 This recognition is mainly a consequence of the agency of indigenous political movements and social organizations that, in alliance with progressive social movements, have managed to position their agendas at the center of the political community.Footnote 109 It is also the consequence of the formal or informal recognition of the principles of plurinationality and interculturality.Footnote 110 The Ecuadorian Constitution, the Bolivian Mother Earth laws, and the New Zealand Te Urewera and Te Awa Tupua laws emerged as a consequence of the recognition that these three countries are not monocultural; that the cultures that compose them must be valued; and that dialogue between these cultures must be the way to build the state they share.Footnote 111 The paradigmatic models of the rights of nature, therefore, did not arise because of a change in the unique and homogenous cultures that supposedly constitute these three states, nor are they a consequence of a change in the economic structure of these three countries.
The transnationalization of these prototypical models of the rights of nature has primarily been a process of cross-fertilization involving state and non-state actors, as well as peripheral North–South, South–South, and South–North dialogues and mutual learning. This cross-fertilization has occurred between non-governmental organizations and primary legislators; between courts; between primary or secondary legislators and courts; and between legislators. The following are globally recognized cases that support these arguments.
11.3.2.1 Cross-Fertilization between the Peripheral North and the Global South
The emergence of paradigmatic models of the rights of nature is partly a consequence of a dialogue between the peripheral North and the Global South. This dialogue is between a US non-governmental organization and the State of Ecuador.Footnote 112 The dialogue is not between the State of Ecuador and any institution of the US legal system. Ecuador invited the Community Environmental Legal Defense Fund (CELDF) to advise the Constituent Assembly on issues related to the rights of nature. CELDF had played a central role in the drafting of the Tamaqua ordinance and continued to do so in other US cities and towns that subsequently recognized rights of nature, including Toledo, Ohio; Grant Township, Pennsylvania; and Denver, Colorado.Footnote 113 However, the Montecristi Assembly intertwined CELDF’s political experience and knowledge with the local political experiences and knowledge of Andean indigenous peoples. CELDF subsequently included arguments based on the knowledge of Andean indigenous peoples among those it uses to promote the rights of nature around the world.Footnote 114 In this regard, CELDF states, “CELDF recognises that the Rights of Nature are a concept deeply rooted in traditional indigenous knowledge. This timeline reflects an evolution of Western law and philosophy that is influenced by indigenous cosmovisions, as well as by indigenous-led efforts around the world.”Footnote 115
The cross-fertilization between the peripheral North and the South is also evident in the dialogue that has taken place between the New Zealand legislature, the Colombian Constitutional Court, and the Uttarakhand High Court in India. In the Atrato River judgment, the Colombian Constitutional Court mentioned Te Awa Tupua as one of its sources and took the concept of river guardians from it to apply it in the Colombian context.Footnote 116 Just as the New Zealand legislator created a juridical person to represent the Whanganui River, the Colombian court created the figure of the guardians of the Atrato River to achieve this objective. Delegates from the government and the Māori people represent the Whanganui River; riparian communities and grassroots organizations that inhabit the riverbanks, as well as government officials, represent the Atrato River.Footnote 117 The Uttarakhand High Court, after recognizing the glaciers as subjects of rights, and following the New Zealand model,Footnote 118 appointed a committee of three civil servants to serve as their guardians. The Uttarakhand High Court, however, did not base its decision on Andean indigenous religions, of course, but on Hinduism.Footnote 119 The Court shows in this judgment how, for Hinduism (as in an earlier judgment declaring the Ganges and Yamuna rivers to be subject to rights),Footnote 120 the Ganges and Yamuna river basins are sacred.Footnote 121 By appealing to a non-Western religion, the Indian Court grounds the personification, sacralization, hybridity, and ecosystemic character of nature, as the Ecuadorian, Bolivian, and New Zealand legal norms that recognize the rights of nature have done.
11.3.2.2 South–South Cross-Fertilization
The exchanges between the Colombian Constitutional Court, the Ecuadorian constituent, the Bolivian legislature, and the Ecuadorian Constitutional Court confirm South–South cross-fertilization. This exchange begins as a dialogue between the judicial branch and the primary constituent but later becomes a dialogue between supreme courts. In the Atrato River ruling, the Colombian Constitutional Court cites the rights of nature recognized by the Ecuadorian Constitution and the Bolivian legal system as one of the sources from which it draws.Footnote 122 This ruling is the one that starts the Colombian jurisprudential line on the rights of nature, one that has been widely discussed in the global specialized literature.Footnote 123 The Colombian Court, however, does not base its ruling on Andean indigenous religions, as the Ecuadorian constituent does, but rather on biocultural rights, which include the cultural rights held by Colombia’s indigenous peoples according to the 1991 Constitution.Footnote 124 After 2009, the Ecuadorian Constitutional Court issued fifty rulings on the rights of nature.Footnote 125 The Colombian Constitutional law rulings on cultural diversity were one of the sources that nurtured this jurisprudence.Footnote 126
Argentine, Peruvian, and Panamanian legislators’ uses of the Ecuadorian and Bolivian experiences also confirm South–South cross-fertilization. Bill S-2506/15, presented by Argentine Congressmen Fernando E. Solanas and Rubén H. Giustiniani, proposes to recognize the rights of nature.Footnote 127 In its foundations, the bill recognizes the influence that the law of Ecuador and Bolivia had in the drafting of the proposed law. In this regard, the bill says: “This debate is circulating around the world after having been put on the political agenda by the new constitution of Ecuador in 2008 (from which – together with Bolivian legislation – we draw inspiration for this bill) which already in its preamble states …”Footnote 128 This same bill was presented again in 2019 and 2020. The 2020 bill also explicitly acknowledges the influence of GARN in its drafting. In this regard, the bill states: “Likewise, this bill includes the contributions of the Global Alliance for the Rights of Nature (GARN), in the framework of a campaign on the rights of nature that has, among other objectives, to promote legislation that recognizes the rights of nature in the Argentine Republic.”Footnote 129
Draft Law 6957 of 2020 in Peru also proposes the recognition of the rights of nature.Footnote 130 After stating in the grounds of the law section that “[d]iverse countries around the world have recognized, within their domestic regulatory framework, rights as living entities and right holders in themselves to nature, ecosystems, rivers, species, etc.,”Footnote 131 the bill includes Ecuador and Bolivia as its first two references. However, the bill also mentions other countries from the Global South (Mexico, Brazil, Argentina, Colombia, and Uganda) as well as some from the Global North (the United States, New Zealand, and Australia) as sources of its contents.Footnote 132 Finally, Panama recognized nature as a subject of rights and granted it a broad set of specific rights in Law No. 287 of February 24, 2022.Footnote 133 The law cites the Constitution and the jurisprudence of the Constitutional Court of Ecuador, the Bolivian legal system, and the jurisprudence of the Colombian Constitutional Court as sources of its contents. The bill also refers to the experiences of the United States, Brazil, Mexico, New Zealand, Australia, and Uganda with respect to the rights of nature.Footnote 134
11.3.2.3 South–North Cross-Fertilization
The direct impacts that the peripheral legal systems that built the paradigmatic models of the rights of nature have had on the legal systems of the Global North are just beginning to be made explicit. However, there are already two cases where the South–North influence has been relevant for the creation of rights of nature: first, in the ordinances that CELDF contributed to drafting after its work in the Constituent Assembly of Ecuador. In these processes in the United States as well as in Australia, England, and Wales, CELDF has already incorporated components of the Ecuadorian, Bolivian, and New Zealand models.Footnote 135 CELDF, as argued in Section 11.3.2.1, has explicitly acknowledged the influence of indigenous knowledge in the way it understands and grounds the rights of nature.
Second, South–North influence has been relevant in the proposed recognition of the St. Lawrence River as a subject of rights in Quebec, Canada that was presented to the federal parliamentFootnote 136 and the recognition of the Magpie River as a subject of rights by two Innui indigenous peoples.Footnote 137 These were both processes driven by the Rights of Nature Observatory, a Montreal-based non-governmental organization that promotes the rights of nature.Footnote 138 The Observatory contributed to the drafting of both the legal norm that seeks to recognize the St. Lawrence River as a subject of rights and the two mirror norms issued by the Ekuanitshit Innu Council and the Minganie MRC that serve the same purpose with respect to the Magpie River.Footnote 139 The Observatory mentions the Colombian ruling on the Atrato River, the Indian ruling recognizing the Ganges and Yamuna rivers, the Bangladeshi ruling recognizing all rivers in Bangladesh as subjects of rights, the Ecuadorian constitution, the Bolivian Mother Earth laws, and the New Zealand laws recognizing a river and a forest as subjects of rights as antecedents to the proposal to recognize the San Lorenzo River as a subject of rights.Footnote 140 It also recognizes the case of the Atrato River as one of the influences on the norms on the Magpie River. However, it also mentions the New Zealand caseFootnote 141 and the resolutions of some US indigenous peoples that recognize river rights.Footnote 142
11.4 Conclusion
The rights of nature are a global discourse today. This global discourse constructs a new subject of rights, nature, and it recognizes a particular series of rights to nature, including the right to life and the right not to be contaminated. The discursive pattern on the rights of nature has three components: poietic discourses, mimetic discourses, and discourses of resistance. Poietic discourses articulate the central discourse patterns on rights of nature, that is, the seminal discursive structures on the rights of nature (Bolivia, Ecuador, and New Zealand). Mimetic discourses collect discursive patterns that reproduce, albeit with some variations, the prototypical models on the rights of nature. Discourses of resistance offer discursive patterns that resist or ignore rights of nature. However, we cannot fully understand the rights of nature without examining them from the perspective of comparative law. The rights of nature intersect with three central themes in contemporary comparative law: the political economy of legal knowledge, legal pluralism, and cross-fertilization.
The rights of nature challenge the dominant political economy of legal knowledge through the culturally-hybrid character of their paradigmatic models, as well as the contexts of legal knowledge production from which they originate and the political processes that led to their emergence. Similarly, the rights of nature explain legal change through heterodox political processes that question the traditional relationship between culture and law, as well as the direction taken by the dialogues and mutual learning that develop between legal systems. The rights of nature open promising doors for rethinking the way we conceive of nature and the relationship that human beings have with it. However, the rights of nature are still a young legal product. The rights of nature, their foundations, structures, and institutions are still evolving, as are the consequences they may have on the world.
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