May 9th, 2017
By: Mumta Ito
The rights of nature and the underlying philosophy of Earth Jurisprudence are becoming a fact as more and more countries adopt these rights at national and local levels as well as in court decisions.
In the past month or so alone, the Rivers Whanganui, Ganges and Yamuna made headlines as the first rivers in the world to be recognised as having legal personality and rights.
In Europe, however, the rights of nature are yet to come. But with a recent conference in the European Parliament the EU is catching up with the international trend and begins to look into possibilities of adoption.
There is a deep flaw in our system of law that treats living beings as objects or property - while treating corporations (which are a form of property) as subjects of the law with legal personality and rights. This fuels an economic paradigm based on endless growth that is coupled with the destruction of nature - which ultimately benefits no-one.
At core of this is valuing nature for its utility to human beings - as resources, property or natural capital - rather than seeing it as the source of life. The Council of the EU have committed to strive towards an absolute decoupling of growth from destruction of nature.
If this is to happen in reality - and not just as an accounting exercise - we need laws that recognise the intrinsic value of nature. The way to do that is through legal personality, recognising the rights that nature has anyway and a legal framework that aligns with ecology to sustain life.
Hierarchy of rights
In Figure 1 (above right) the diagram on the left is the usual model for sustainability. The problem with this model is that it assumes that each circle can exist independently of the others. In reality the only one that can exist without the others - is nature.
The diagram on the right is therefore more accurate. It shows a natural hierarchy of systems because without nature there's no people and without people there's no economy.
This then leads to a natural hierarchy of rights with nature's rights as our most fundamental rights because our life depends on it, then human rights as a subsystem of nature's rights - and then property or corporate rights as a subsystem of human rights.
In the model on the right, the rights are in service of each other rather than in conflict - working synergistically to protect the integrity of the whole. In this model human activities have to be beneficial for humans as well as nature - or its not viable in the long run.
Nature's Rights and its underlying philosophy of Earth Jurisprudence are creating the fundamental legal framework for this to happen.
Counterbalancing corporate power
This in stark contrast to what we are seeing in the world today with corporate and human rights in conflict and nature's rights left out of the picture completely. Rights are a tool for addressing power imbalances.
At present there is an imbalance between the large corporations and everybody else. The current trend for corporations to sue governments for trying to protect people or nature - such as the Bayer Syngenta case against the European Union's ban on three neonicotinoid pesticides linked to the deaths of millions of bee
And while big multilateral trade agreements like TTIP and TPP have been set back by the election of President Trump, others like CETA are going ahead and additional bilateral trade agreements are under constant negotiation.
Also we are seeing the financialization of nature - monetising ecosystems by creating property titles out of the various functions of nature to form the basis of cash flows that can be traded on the capital markets. This is coupled with flawed methodologies - like biodiversity offsetting which assumes that interconnected living ecosystems are interchangeable like bank notes - which could lead to ecological suicide.
These trends have the potential to greatly accelerate the destruction. Bringing nature in as a stakeholder in its own right is a powerful counterbalance to corporate dictatorship. It empowers people and governments to stand for nature - the underlying basis of our economy and our lives - and to protect future generations using a different structure of law.
Our laws are based on an outdated 17th century paradigm which is anthropocentric, mechanistic and adversarial - and separates humans from nature.
Law governs relationships but only between subjects of the law. Because nature is treated as an object, the law doesn't recognize a relationship between us and the rest of nature. This not only leads to an attitude of separation and disconnection, it also leads to several practical issues that make it almost impossible to protect nature using the law.
Environmental law is failing because it comes from the same paradigm that created the problem. It is designed to manage the externalities of business as usual without addressing root causes such as the fundamental orientation of our economic system itself.
Read more at Ecologist.