Rights of nature – the game changer decision

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The report was presented at the Third National Conference on Bioethics and Biolaw “A Man in bioethics and biolaw regulations ” in Sofia, Bulgaria on 12.12.2015 Reports concerning environmental problems and loss of biodiversity are nothing new. In fact, since the 60s of the last century, their number is constantly increasing along with warnings about the environmental impact caused by conventional economic development strategies.

The environmental crisis that we are witnessing at the beginning of the 21st century demonstrates that those warnings have been ignored. This crisis is largely conditioned by the worldview and cultural attitudes that set man apart from nature.

Egocentrims vs. Ecocentrism

Egocentrims vs. Ecocentrism

The reason for the formation of this trend lies in the anthropocentrism staked in the foundation of Western civilization – the understanding of people in the industrialized world that we are somehow separate from and more important than the rest of the natural world.

This understanding has underpinned all areas of life such as economics, law, education and determines the attitude towards the environment as simply a set of objects intended for human use [1]. In turn this view is reflected in the contemporary legal systems in which the relationship man-nature is absent, and in particular the positive duty of care towards nature, with the result that ultimately nature is unprotected.

Environmental law appears in order to create and differentiate the necessary protections post factum, but obviously this approach is not sufficient. The rights of nature recognize the nature as an interested party with crucial importance, whose needs must be taken into account if humanity is to survive and prosper, because nature is the source of all life.

The concept of the rights of nature turns the currently existing paradigm, and states that, by definition, the whole nature is protected and the purpose of the rights is to outline the boundaries of acceptable human behavior that does not distort the dynamic balance in nature. This understanding will enable mankind to meet the needs of the present without compromising the ability of future generations to meet their own needs, and that is the official definition of sustainable development [2].

The human evolution

The human evolution

The origins and history of the idea of empowering nature with rights can be traced back to the mid 90s of last century [3]. The two decades that have passed since then, were marked by a real flourish of a concept that makes one of the boldest proposals for a civilized solution of the ecological crisis in which the world has placed itself in.

Pioneers in that regard proved to be countries with still existing, or at least trying to survive and preserve their identity, indigenous population. Ecuador sets the bar the highest (in the sense of a legal act) by implementing the rights of nature in its Constitution (and became the first country in the world that did this) in 2008 [4]. According to Art. 10 of the Constitution of Ecuador: “Nature is subject to the rights granted to it by the Constitution and laws”.

Further on, in Articles 71 to 74 as a fundamental right is indicated the right to respect its existence and ability to self-sustain and recover its own vital cycles, structure, functions and evolutionary processes. The right of nature to recover will be independent of the state’s obligation to compensate the affected communities whose existence depends on the Pacha Mama (Mother Earth’s name used by the indigenous peoples in the Andes).

And last but not least the state is obliged to introduce restricting measures for activities that could lead to the extinction of species, the destruction of ecosystems and permanent change in the natural cycles.

Bolivia adopted such provisions at the level of national legislation, but remains questionable how effective is the enforcement of this measure, given that at present (at the time of writing this report) there are no known judgments referring to these laws.

Vilcabamba - Quinara road case, Ecuador

Blue line shows the natural flow, yellow line shows the material dumped

Unlike Bolivia, in Ecuador there is the first case resolved in favor of nature – Vilcabamba River Case in 2011 [5], the court in the province of Loja, Republic of Ecuador ruled in favor of nature (and in particular in favor of river Vilcabamba). Art. 71 of the Constitution was breached by the local authorities in activities related to the expansion of road infrastructure.

The case is based on a problem caused by the project to expand the road Vilcabamba-Quinara due to which large quantities of rock and dredged material were dropped into the river Vilcabamba. This project was operating for three years without any assessment of the impact on the environment.

It directly violates the rights of nature, by raising the river level and thus creating a risk of disaster due to the melting snow. This would put in danger the local population living along the river and using its resources.

Vilcabamba - Quinara road case, Ecuador

Blue line shows the natural flow, yellow line shows the material dumped

It is worth noting two elements in the judgment:

The damage to nature concerns not only the present generation but also future ones; reversing the burden of proof – instead of the plaintiff to prove that nature was damaged, it is the defendant required to prove that with the expansion of the road there will be no negative consequences for nature. This injunction is a real breakthrough in the development of the environmental law since it follows the good practice imposed by the European Court of Human Rights (ECHR).

And in particular the provisions against discrimination. In cases heard before the ECHR and related to discrimination, the obligation is on the defendant to prove that the plaintiff has not been discriminated.

Obviously, the rights of nature and human rights have a strong relationship (not just in the name), which will be discussed later. The outcome of the case remains controversial given the partial implementation of the judgment.

[1] Maloney, Michelle, Finally Being Heard: The Great Barrier Reef and the International Rights of Nature Tribunal, Griffith Journal of Law and Human Dignity, Volume 3 (1) 2015.

[2] Mintzer, I. M., Confronting Climate Change: Risks, Implications and Responses. (ed). [Online]. Cambridge, Cambridge University Press 1992.

[3] See Draft Principles On Human Rights And The Environment, E/CN.4/Sub.2/1994/9, Annex I (1994) (https://www1.umn.edu/humanrts/instree/1994-dec.htm).

[4] http://www.harmonywithnatureun.org/content/documents/160Ecuador%20Constitucion.pdf.

[5]  Juicio No: 11121-2011-0010 http://www.harmonywithnatureun.org/content/documents/167Loja%20Legal-case.pdf.