In a historic decision, following the path of a resolution adopted by the Human Rights Council in 2021, the United Nations General Assembly recognised in July 2022, the universal right to a clean, healthy and sustainable environment. Despite its non-binding nature, this historic resolution has the potential to catalyse a paradigmatic shift regarding protection of nature, or even paves the way for a social and economic transformation aimed at fostering an inclusive greening recovery and accelerating progress towards the 2030 Agenda by consolidating the “rights of nature” extending paradigm.
The concept of “rights of nature” encompasses various ideas such as the commons, ecological solidarity, and ecological integrity, among others. This concept has the potential to shift the focus of international law from a social contract to a natural contract, providing a significant catalyst for societal change. Some communities have already enacted laws recognising the rights of ecosystems, within their territories.
Recent developments on a national scale to institute the rights of nature involve establishing institutions tasked with representing nature, ensuring stewardship, establishing a duty of care and due diligence standards. These initiatives could offer a framework that supports fresh interpretations of certain international legal principles and inject new energy into ecological approaches by acknowledging nature’s role in environmental governance.
The evolution of the “nature” concept in international law
Ecuador was among the pioneers in enshrining nature’s rights in its constitution, nowadays, numerous communities have enacted laws recognising the inherent rights of ecosystems, leading to the endorsement of a universal draft declaration of the rights of nature.
Various types of stewardship statuses have been proposed in international law for different ecosystems (see here and here). However, these efforts are generally seen as peripheral in the realm of international law. Responsible management is also part of global governance, as exemplified by the Forest Stewardship Council and the Marine Stewardship Council, which have set standards for responsible action towards the world’s forests and fisheries. Yet, these collaborative initiatives have faced significant limitations, challenges, and poor implementation.
The United Nations has consistently supported initiatives related to Earth jurisprudence, advocating for the development of international human rights law concerning the rights of indigenous peoples, the acknowledgment of traditional ecological knowledge of local communities, and the recent objective of the Kunming-Montreal Global Biodiversity Framework to achieve “living in harmony with nature by 2050”. Since 2008, various fields including law, sociology, anthropology, philosophy, and education have made efforts in this direction.
Despite these advancements that underscore the importance of nature preservation, there remains a lack of effective mechanisms or tools at the international level to prevent harm to biodiversity. The efforts of international law to safeguard the environment and ecology are seen as inadequate, without any explicit obligations towards nature conservation. The concepts of stewardship and due diligence continue to hold a marginal place in international legal frameworks.
The power of confluence between legal systems in shifting the paradigms
The acknowledgment of nature’s rights presents an intriguing path that is poised to advance further in the realm of international law influenced by environmentally conscious approaches. This progression is essential for a worldwide transformation that will enhance the safeguarding of biodiversity. Biodiversity is capable of being evaluated across various levels of scale, ranging from the local to the global. The extinction of a single species within biodiversity can have a cascading impact on global biodiversity; as the repercussions accumulate on a local level, they eventually reverberate throughout the entire “earth system”.
The primary function of international law is to establish a legal framework that facilitates the implementation of human rights and provides mechanisms for addressing violations on a global scale. Furthermore, there are no legal barriers to acknowledging the rights of nature; the key challenge lies in the willingness to do so. The exploitation of natural resources presents issues related to State sovereignty, prompting the question of how to navigate this obstacle. Within international law, there exists a principle known as the responsibility to protect, which mandates that every State is obligated to safeguard its citizens from genocide, indicating the possibility of extending this duty to encompass other natural elements that suffer from exploitation. Additionally, exploring regional cooperation is a viable approach to consider.
In conclusion, the utilisation of international law in domestic climate litigation is facilitating a progressive alignment, albeit with variations. It is imperative that legal actions concerning biodiversity are specifically identified and that there is increased incorporation of international law in showcasing its compatibility with the rights of the environment in courtrooms. This will help highlight the global repercussions of certain local initiatives and thereby reinforce the recognition of local rulings in attributing legal standing to natural entities on a worldwide level.
Making natural entities subjects of law: an idea gaining ground in international law?
While there has been no formal declaration of the rights of nature on a global scale, recent advancements are paving the way for a shift towards a more inclusive and less government-focused international legal system. This evolution is allowing for the acknowledgment of alternative perspectives and approaches to interacting with the natural world. Indigenous communities such as are increasingly pushing back against the current State-centric, profit-driven exploitation of nature by introducing principles of interconnectedness and kinship with the environment, drawing on international human rights legislation.
The concept of nature law represents a significant transformation that calls for a complete reevaluation and reconstruction of the global legal framework concerning nature.
According to a 2013 report from the UN Secretary-General, it is widely acknowledged across various human traditions that individuals are essentially temporary caretakers of the Earth’s resources as they journey through life. This sentiment reflects key principles that support the concept of rights of nature, highlighting the responsibility of humans to oversee and protect the environment. Taking into consideration nature, and assuming the role of a protector for the benefit of nature, is fundamental to acknowledging the rights of nature.
There has been a push on a global scale to incorporate the concept of “Earth Trusteeship” as a way to address issues related to sovereignty when it comes to managing natural resources. Earth stewardship is a principle emphasising humanity’s responsibility to treat nature with care, based on the belief that resources like air, trees, and water are shared by all and should be managed sustainably by nation States.
However, the idea of common stewardship is not often fully integrated into international treaties; the Aarhus Convention is notable for being one of the few binding agreements that urges all parties to acknowledge their responsibilities as custodians in order to safeguard the needs of both present and future generations.
In addition, the Kunming-Montreal Global Biodiversity Framework acknowledges the crucial roles of indigenous communities and local populations as “custodians” of biodiversity and as valued partners in conservation, restoration, and sustainable utilisation efforts. Likewise, the High Seas Treaty of 2023, which deals with biological diversity in areas beyond national jurisdiction, expresses a commitment to act as stewards of the ocean in those regions.
The recognition of the rights of nature entails acknowledging that nature deserves a future driven not just by sustainable human progress, but also by the intrinsic value of nature itself. By granting nature legal standing as a rights-holder, we also acknowledge its status as a direct stakeholder. Some judges of the Court of Justice of the European Union have hinted at the importance of recognising nature’s inherent future needs, suggesting a potential shift towards a western worldview approach within the precautionary principle. While contemporary international jurisprudence has not fully embrace this perspective, an interpretation of the precautionary principle through the lens of nature’s rights would pave the way for a less western worldview considering the nature as resource. There is much to be learned from recent developments in the realm of rights of nature, particularly in terms of environmental prejudice and reparations within greening international law perspectives.
A different aspect to consider regarding the rights of nature in the future involves the rights of future generations, which have been validated in numerous environmental agreements, declarations, statements on climate change, as well as in multiple court judgments and rulings (see here, here, here, here, here and here). Within a context of rapidly evolving interpretations and comprehension of intergenerational justice, the incorporation of rights of nature would promote a less anthropocentric perspective on what the rights of future generations might entail by encompassing nature within the framework.
When combined, these various treaties, declarations, and legal cases emphasise an international normative emphasis on the obligation to safeguard nature for future generations. This obligation is rooted in an intergenerational duty of integrating a responsibility for current generations to preserve the planet for the future of the ecosystems.
Final reflections
The umbrella term “rights of nature” encompasses a variety of local strategies, cultural beliefs, and perspectives on the relationship between humans and the environment. The establishment of a more structured international legal commitment could facilitate a global dialogue on the interaction between law and nature.
Localised initiatives focused on rights of nature should be supported by a well-adapted international legal framework. Research and advocacy at the international level should aim to reinterpret established legal concepts to align with the principles of rights of nature. This reinterpretation should also incorporate a more diverse range of viewpoints and methodologies.
Conferring the status of legal subject to nature would serve as a novel tool for interpreting international law and providing guidance to judicial decision-making. This could also influence the behaviour of economic actors, leading to greater environmental consideration in business operations and the exercise of economic freedoms. Additionally, it could prompt revisions to the legal system in order to expedite the transition to a more sustainable ecological model by addressing legal gaps, tackling fragmentation and amending existing laws, and transiting into a gender-responsive, poverty alleviation, and sustainable environmental justice model.
The application of principles based on rights of nature seen in national initiatives can serve as a source of inspiration for advancing international law. This may involve incorporating these principles more systematically into existing international legal frameworks and jurisprudence, reflecting the enduring connection between humans and nature that has existed for centuries.
Sanae Bouyayachen, PhD Candidate in International Investment Law and Arbitration at the Mohammed V University in Rabat, Morocco.