International Rights of Nature – a Paradigm Shift in International Law

“The rights of nature are based on the intrinsic value and protectability of nature, which exist independently of its benefit to humanity. They represent one way of implementing an ecocentric philosophy of law.”

– Helen Arling

Rights of nature are gaining ground internationally. Recent publications indicate that Ireland may include rights of nature in its constitution (see here and here). In the USA and Latin America, corresponding regulations have already existed for over 15 years – from local initiatives to the constitutional level in Ecuador (Articles 71 to 74). Nature’s rights are also increasingly being mentioned in international documents: The Harmony with Nature Programme has been in place at United Nations (UN) level since 2009 and regularly adopts resolutions and reports. In 2017, the Inter-American Court of Human Rights recognised in its Advisory Opinion OC-23/17 that the right to a healthy environment protects nature regardless of direct impact on humans (para 62). The Kunming-Montreal Global Biodiversity Framework, an international treaty on biodiversity protection concluded under the Convention on Biological Diversity, mentions the rights of nature as an “integral part of its successful implementation” (Annex, para 7(b)).

This article provides an overview of the rights of nature and their international implementation and highlights conflicts with the principle of sovereignty as a building block of the international legal order.

International Rights of Nature Tribunal – Global Alliance for the Rights of Nature

The Philosophy Behind Rights of Nature

The rights of nature approach is remarkable in many respects. In principle, this approach is understood as a legal mechanism that aims for recognition of ecosystems or nature as a whole as a legal subject. In national law, this is done either by recognising the legal personality of nature, certain intrinsic rights or even both (see here, 15). In addition, a certain philosophy forms the backbone of rights of nature (see here, 10-11). On ethical terms, a rights of nature approach signifies a turn away from anthropocentric motives of protection, which are orientated towards human interests and regard humans and nature as separate (see here). Predominantly economically motivated protection of nature is associated with weak protection mechanisms and has not been able to prevent a drastic deterioration of the state of nature worldwide (see here and here, XV-XXIII).

Rights of nature, on the other hand, are based on the intrinsic value and protectability of nature, which exist independently of its benefit to humanity. They represent one way of implementing an ecocentric philosophy of law. Finally, it is relevant that rights of nature combine indigenous worldviews based on the unity of humans and nature with the Western concept of rights (see here, 939). In this way, worldviews of marginalised groups receive legal consideration. Rights of nature and indigenous rights can also be mutually reinforcing if they are sensibly conceptualised and implemented (see here, 421).

International Rights of Nature – Ways Forward

As already mentioned, a rights of nature approach is already reflected in some international legal documents. The recognition of international rights of nature in a universal sense can take place in different ways, which I will briefly explain here. Further, the possibility exists that rights of nature will become established as regional customary international law, as indicated, for example, by developments in some Latin American states.

A. rights of nature in international environmental treaties

Firstly, it is possible to recognize internal rights of nature under environmental treaty law. In this sense, rights of nature could either be included in international environmental law treaties directly, or their provisions could be interpreted in an ecocentric way. The Kunming-Montreal Global Biodiversity Framework mentioned above offers a starting point for the former. Further proposals aim to integrate the rights of nature into the protection of marine biodiversity beyond national jurisdiction (see here). The option of ecocentric treaty interpretation could be realised, for example, with regard to the 1982 UN Convention on the Law of the Sea. The high sea and marine biodiversity could be interpreted as rights bearers in this respect (see here, 54-57). The establishment of a special body to represent their interests would further their protection. The justiciability of international rights is problematic here, as international law provides only limited possibilities for legal protection. The establishment of an international environmental court could provide a remedy but will be met with considerable opposition from states.

B. an expansion of human rights

Aside from recognition of nature’s rights in international environmental treaties, nature’s rights could manifest in international law through an extension of human rights. Under this approach, human rights are extended to “nature rights”, which include both human rights and rights of nature. Such a paradigm shift takes account of the inseparability of humans and nature, which is part of the rights of nature approach. The aforementioned Advisory Opinion OC-23/17 of the Inter-American Court of Human Rights forms a starting point in this regard. Article 15(1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the right to participate in cultural life, also provides an entry point for rights of nature into the international human rights system in relation to indigenous concerns. The UN Committee on Economic, Social and Cultural Rights (CESCR) has linked this right to land and to indigenous beliefs practised on it in its General Comment No. 26 (paras 10, 16). In the future, Article 15(1)(a) ICESCR could be used to incorporate rights of nature into international law.

C. a new commons approach

Finally, a paradigm shift in international law – towards an ecocentric approach that recognises rights of nature – can also be achieved through a new understanding of the global commons. The term “global commons” refers to areas beyond national jurisdiction. These include, for example, the high seas, Antarctica and the moon. These areas, to be understood as the “common heritage of humankind”, are cooperatively managed by states and are not subject to national sovereignty. In the context of international rights of nature, it would be possible to extend the common heritage principle to nature as a whole under recognition of its intrinsic value (see here, 8).

A Transformation of the International Legal System

Such potential changes have great significance for the international legal system as a whole, in particular for its fundamental principle of (state) sovereignty. In the traditional sense, sovereignty stands for the supreme authority over a given territory (see here). The principle has already changed considerably – particularly in the context of recognition of international human rights. Claims to absolute internal authority and external independence have given way to systems of international co-operation. However, the principle of sovereignty still restricts international nature protection. An emphasis on state sovereignty in international environmental treaties stands in the way of the development of strong state obligations; in some cases, such treaties already fail in the negotiation phase due to concerns about excessive restrictions on state sovereignty (see here, 8).

This conflict is even more obvious when it comes to an international rights of nature approach. Here, the framing of nature as an object, especially in relation to permanent sovereignty over natural resources, is already in conflict with the philosophy behind rights of nature. The principle of territoriality associated with sovereignty is further at odds with an approach that sees humans and nature as inextricably connected. The more universally international rights of nature are to be implemented, the greater the conflict. Earth system law as a new, systemic legal approach offers a theoretical framework for a new international law in harmony with international rights of nature. A more detailed description is beyond the scope of this blogpost. However, it can be said that Earth system law is characterised by both a planetary perspective and a polycentric participatory approach (see here). By recognising universal rights under Earth system law, territorial sovereignty is further limited, and a framing of nature as a participant in the international legal system challenges its object status under the principle of permanent sovereignty over natural resources.

Conclusion

There is no doubt that an international rights of nature approach leaves many questions unanswered. There is the question of representation, the enforceability of such international rights and, finally, the likelihood of such a paradigm shift. However, the lack of effectiveness of existing legal instruments and mechanisms suggests a need to fundamentally rethink that international nature protection. International rights of nature make it possible to turn away from anthropocentric protection motivations and take account of the interconnectedness of humans and nature. However, they are in conflict with the principle of (state) sovereignty under international law, so that here as well, a reconsideration seems necessary. Earth system law could provide the framework for a new understanding of international law that is in harmony with the international rights of nature and requires further exploration.

Helen Arling

Trier University

Helen Arling is a PhD Candidate and Research Associate at the Professorship of Public Law, International Law and European Law (Prof. Dr. Birgit Peters) at Trier University.