Access to Nature between Ideology and Law – Summary

2019

We are far beyond the limitations of the planet and we have to face the simple fact that the approach that we had before to set up specific environmental legal texts is simply not working. It's not that we don't have the best or the proper regulation in the system but perhaps the problem is with the system itself. Clearly the current decision making structures and the structure of environmental law can manage certain externalities, as mentioned, and some effects of production and consumption -but it's not really challenging the basis of the problem. Forty years ago it was already on the table -do we create an overly complex un-understandable system of environmental law -or do we simply give rights to Nature?" *-Benedek Jávor -Member of the European Parliament, Co-Vice Chair of the Environment Committee and Professor of EU Environmental Law. 2 The European Union (EU) has one of the most extensive environmental laws of any international organisation -over 500 Directives, Regulations and Decisions. 3 So why is it that the state of Nature in Europe is worse than ever and still in decline? 1 Mumta Ito is an attorney, and Founder and President of Nature's Rights, a Scottish charity organization.

With the increase of the ecological problems and most of all with the increase of the adverse to human beings climate changes, the question of nature protection from human impact is (more) often raised. This brings a number of ethical and legal questions, including those with the potential to change the subjective structure of the currently existing law. 1 Taking into account/ the state of nature, the proposed " structural changes " in the law could be regarded as " extreme measures " required by the " desperate situation " in which we have put ourselves. 1. Brief review of the facts After the breakthrough in 2008, when Ecuador became the first country with a constitution recognizing rights of nature 2 , and after the adoption of the December 7 th , 2010 Bolivian Law on the Rights of Mother Earth (Law of Mother's Earth Rights 3), which recognizes 7 basic rights in favor of nature, including the right to life, the right to diversify, the right to water, etc., the question for the rights of nature was also raised in Europe. A Draft-Directive on (protection of) the rights of nature is prepared 4 which aims at proposing a new legal framework for the European ecological legislations. A system of material and procedural rights of nature is proposed. According to art. 4, p.1 of the Draft-Directive nature, which includes, but is not limited to earth, ecosystems, natural communities, species and the atmospheric climate, has a legal personhood (is a subject of law). The Draft-Directive recognizes the basic rights of nature arising from "its inherent dignity as the source of life". It is stated that the protection of the remaining part of nature can only be achieved if we transcend from a legal framework that protects nature post-factum (through various administrative mechanisms for appealing of decisions concerning nature) towards proactive legislation, providing nature with legal personhood (civil rights that can be exercised on behalf of and in the interest for nature before the latter being damaged). Piecemeal legal protection is not enough – a fact that is evidenced by the state of nature decades after the adoption of the existing environmental legislation. If we recognize priority of nature over economy: " After all, which came first, life or the economy? " asks Mumta Ito 5 , therefore we should give nature the greatest protection that law can offer – the rights and legal personality. This protection has already been given to the economy by recognizing the legal personality of corporations-companies are rights holders and the legal nature of 1 The transition from "natural" rights to the "rights of nature" see. detail Nash, R. The Rigths of Nature. Ahistory of Enviromental Ethics. London, 1989, p. 13-32. The focus of this article is on the existing regulations which recognize rights for nature or of its particular components. 2 In art. 10, sentence 2 of the Constitution of Ecuador from 2008 it was announced that nature shall be the subject of those rights that the Constitution recognizes for it. The text of the Constitution of Ecuador is available online at the following address: http://pdba.georgetown.edu/Constitutions/Ecuador/english08.html. However, actual implementation of rigths of nature continues to be a subject of discussion in Ecuador. See Arias, M. Conversation With Natalia Greene About The R i g h t s O f N a t u r e I n E c u a d o r (9 м а р т 2 0 1 5) , a v a i l a b l e a t t h e f o l l o w i n g a d d r e s s :

I have tried to argue in this paper that the general philosophical perspective over the environmental problems could generate different approaches of environmental legislation. For a traditionalist European philosopher the environmental ethics isn’t a new ethics, but is reducible to the technical problems of any applied ethics, for example, the way in which some legal norms cover some cases and the justice manages the prejudices against environment. From the standpoint of a “deep ecology” we need a debate about the metaphysics of environmentalism and environmental ethics gains a new statute.

2012

Earth jurisprudence and wild law are emergent fields which seek to redefine the legal relationship between human and non-human entities and to develop strategic (arguably anthropocentric), law based interventions which might operate to support the integrity and health of ecological systems. [1] A central concern of earth jurisprudence is to translate various forms of ecocentric thinking into practical legal interventions that can extend ethical, political and legal consideration to all components of the natural world. [2] At its most visionary level, earth jurisprudence aims to develop “non-anthropocentric” earth justice systems capable of recognising and representing the “rights of nature.” [3]

Treatise of legal philosophy and general jurisprudence, vol. 12 (t. 2) : Legal philosophy in the twentieth century, The civil law world, E. Pattaro, C. Roversi, éd., Milan, Springer, 2015, p. 111-118, 2015

In 2008 Ecuador adopted a new constitution that pioneered rights for nature. This case might seem to have come out of nowhere but there are theoretical, as well as practical, precedents that informed it. This chapter is concerned with discussing the idea of rights for nature, and will do so in the following steps: I will first introduce the idea as such, and show whence its conceptual toolkit is borrowed; this is followed by a presentation of the rights of nature in Ecuador; I will then look at other cases of rights for nature, mapping continuities and differences with Ecuador; finally, I will ask the question that drives this chapter, namely what the rights of nature tell us about the politics of nature: what possibilities are being inaugurated, and what lessons can already be learned? Once we pick out the constitutive elements of the rights of nature, both in theory and practice, we will be in a position to reflect on their meaning and on the promises they hold for an environmental politics of the 21st century.

This paper considers some of the recent legislative developments concerning the rights of nature and argues that the environmental rights movement would benefit from more strenuous critical engagement with the question of nature's potential legal ‘rights'.

2017

The World Climate Conference (COP 23), held in Bonn, Germany, has ended on November 17th and some of its key outcomes seem to be auspicious (e.g. the coal phase-out promoted by some states). Yet, one of the most dividing points in international environmental law has remained untouched: whether-when considering environmental rights and obligations-nature should be the carrier of rights and thus be protected for the sake of itself (so called ecocentric approach), or whether its protection serve only as a prerequisite for the enjoyment of human rights such as the right to life or to health (anthropocentric or human-centred approach). International agreements, such as the 1972 Stockholm Declaration positioned themselves quite clearly: "'Man is both creature and moulder of his environment […] Both aspects of man's environment, the natural and the man-made, are essential to his well-being and to the enjoyment of basic human rights the right to life itself'. While avoiding such explicit statement on the status of human beings, subsequent agreements, including the Paris Agreement that recently entered into force, do not intend to change the system fundamentally. Nature as a legal entity Nature as a legal entity However, a growing number of national governments, the Pope, and scholars have affiliated themselves to a more ecocentric approach (in 

Revista Direito E Politica, 2010

Journal for European Environmental & Planning Law, 2019

The advent of Rights of Nature (RoN) marks a new paradigm shift in the philosophical approach to nature. As such, the concept has generated enthusiasm amongst environmentalists and legal scholars. This is not surprising since granting legal personhood to nature seems to present itself as a relative easy fix for the multitude of deficiencies of “modern” environmental law. However, when critically assessed, many of the underlying assumptions justifying a shift towards rights-based approaches to nature are open to challenge. In this paper, which takes a more critical stance on the topic of RoN, it is submitted that also the much-criticized modern environmental law is moving towards a recognition of the intrinsic value of nature, puts breaks on property rights, offers remediation actions for pure ecological damage and also increasingly grants environmental ngos wide access to courts. Moreover, on a second level, it is argued that RoN are not a legal revolution and that many of the probl...

Estudios de Filosofía, No 65, 2022

Property rights are often seen as a gateway to the destruction of nature. In view of the ecological crisis, criticism of property rights is therefore becoming louder and louder. On the one hand, rightly so, since global warming, resource depletion, global pollution and the loss of species have been made possible by the private ownership of natural assets. On the other hand, the criticism falls short. Even common and public property does not protect natural assets from being overexploited, resources depleted, and values extracted. Moreover, it is questionable whether nature would actually be better off today without any property regulation. A new understanding of property that does justice to natural goods is therefore needed. The article considers the rights of nature as a way to rethink property in this sense and explores reasons to give rights of nature a general validity.

Adam Mickiewicz University Law Review, 2023

S. Kowalska, Natural Law and the Rights of Nature – in Search of More Effective Environmental Protection, [in:] "Adam Mickiewicz University Law Review" 2023, Vol. 15, ISSN 2083-9782, eISSN 2450-0976, pp. 273-292

2016

A range of legal tools is increasingly being used for the conservation of biodiversity. These tools include conservation covenants, biodiversity offsets and payment for ecosystem services. There are benefits to these approaches, but also challenges to be met if these mechanisms are to be applied successfully. Among the challenges is the fact that these schemes generate new relationships between land, people and the environment, especially wildlife. This requires consideration of the basic position of ownership of wild flora and fauna, the extent of the property rights of landowners and others with interests in the land, and of how far the state is justified in restricting, and even taking over, these rights for conservation purposes. The restriction of property rights for environmental purposes has already given rise to litigation under the European Convention on Human Rights and as ideas of long-term stewardship in land or new rights in relation to ecosystem services develop, there are questions over the nature and extent of the rights being recognised. Moreover, there are concerns over the acceptability of an approach that converts nature from a "common heritage" to a bundle of property rights. Mechanisms that confer rights on nature add a further dimension to the discussion. Using examples from the United Kingdom and other jurisdictions this article attempts to highlight the different ways in which rights can be viewed in the context of developments in conservation law and the need to appreciate the consequences from different perspectives.

Journal of International Wildlife Law & Policy, 2008

European Economic and Social Committee, 2020

This Study aims to set a framework for the legal recognition of the Rights of Nature in the EU legal order, as a prerequisite for a different and improved relationship between human beings and Nature. This aim should be possibly accomplished through the development of a EU Charter on Fundamental Rights of Nature. Initially, the Study shows the role of Rights of Nature with respect to environmental protection goals and addresses the reasons why current EU Environmental Law is failing to deliver the required level of nature protection (Section 2). Subsequently, the Study assesses how the "Rights of Nature" may help to overcome the failures of environmental law. To this end, four paradigmatic cases are proposed and analysed (Section 3). Based on the findings of this analysis, the strategic milestones required to achieve genuine ecosystem protection are identified and presented (Section 4). Finally, the possibility of introducing a Charter of the Rights of Nature in the EU legal system, with its basic principles, recommendable features and proposed pathway is discussed (Sections 5, 6 and 7).