Can nature have rights? That’s no longer the question.

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Editors’ note: This post is part of a joint symposium between the IACL-AIDC Blog and African Law Matters, featuring posts on the theme ‘Constitutional Transformations’ from participants at the upcoming World Congress of Constitutional Law in Johannesburg, South Africa 5-9 December 2022.

In 2006, the world’s first “rights of nature” law was enacted.  The law was adopted by the small community of Tamaqua Borough, in the State of Pennsylvania in the United States of America.  Two years later, Ecuador became the first country to enshrine the rights of nature – Pacha Mama – in a national constitution.

Since those early days of the rights of nature movement, local communities, countries, First Nations, and courts have secured legal rights of the natural world. 

National laws are now in place in Uganda, Panama, and Bolivia, with subnational and local laws established in Brazil, the U.S.A, Mexico, and Canada.  First Nations, including the White Earth Band of Chippewa and the Yurok Tribe in the U.S.A, and the Innu Council of Ekuanitshit in Canada, have established laws securing legal rights of ecosystems and species.  Further, in Colombia, India, and Bangladesh, courts have declared that rivers and other ecosystems possess legal rights.

 The rights that nature possesses, as recognized within these laws and court rulings, include the most basic right of all – the right to exist – as well as rights to thrive, regenerate, evolve, perform natural functions, and be restored.  In addition, as specific ecosystems and species have been recognized as rights-holders, rights particular to their needs have also been secured, including the right to pure water, to freshwater habitat, and a healthy climate system.

Western legal systems have long considered nature as an infinite resource, existing for human use.  Under such thinking, nature has long been considered as a thing – an item of property or commerce – without legal rights.  Environmental laws largely regulate the use of nature, by authorizing industrial activities such as the contamination of millions of gallons of freshwater at every frack well, dynamiting the tops off of mountains to mine coal, and establishing how much greenhouse gas pollution can be emitted to the atmosphere by electricity producers. 

“Study after study is demonstrating the destructive impact that human activity has had on nature, ripping holes in the very fabric of life.  The need for a fundamental shift in how we govern ourselves toward the natural world, and how we treat nature under the law, is clear.”

Today, under environmental laws in place around the world, we regulate the use of almost every aspect of nature – from the air, to waters, lands, soils, species, the atmosphere, and beyond.   

The consequences of treating nature in this way are proving severe.  The 2019 Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) study, Global Assessment Report on Biodiversity and Ecosystem Services found that species extinction rates are accelerating due to human activity, with one million species now facing extinction.  We are causing, what many are calling, Earth’s “sixth great extinction” event.

Climate change is also accelerating.  In January 2022, the European Union’s Copernicus Climate Change Service announced that the past seven years were the hottest in recorded human history.  And in August 2022, the journal Nature Climate Change, published a landmark study finding that even if all greenhouse gas emissions were to immediately cease, melting of the Greenland ice sheet, which will raise sea levels an estimated ten inches by the end of the century, is inevitable. 

Study after study is demonstrating the destructive impact that human activity has had on nature, ripping holes in the very fabric of life.  The need for a fundamental shift in how we govern ourselves toward the natural world, and how we treat nature under the law, is clear.

This comes as the movement to recognize that nature is something other than a thing, that we are in fact part of and dependent on nature, is growing. Civil society, communities, governments, and even courts are coming to the conclusion that our current exploitive relationship with the natural world is untenable.   

Moving toward a rights-based framework

In the U.S.A, there is a long history of people’s movements mobilizing to change how certain “entities” are treated by the law, from being considered things – and considered the property of others – to being recognized as people with legal rights. 

The Abolitionist movement sought to end slavery and transform how the law treated enslaved people, from being considered the legal property of slave masters, to being free people protected with legal rights of their own.  Women organized through the Suffrage movement to no longer be considered the property of their father or husband, but rather to be recognized as rights-bearing individuals. 

With this history in mind, perhaps it is not surprising that the movement to transform nature from being considered a thing, or property, to being protected as a living entity with legal rights, would begin in the U.S.A.  But as for the Abolitionists and Suffragists, it is not an easy path.

The late American law professor Christopher Stone wrote a law review article in 1972 titled “Should Trees Have Standing? – Toward Legal Rights for Natural Objects,” which explored the idea of nature possessing legal rights.  He wrote:

“Throughout legal history, each successive extension of rights to some new entity has been, theretofore, a bit unthinkable...The fact is, that each time there is a movement to confer rights onto some new “entity,” the proposal is bound to sound odd or frightening or laughable.  This is partly because until the rightless thing receives it rights, we cannot see it as anything but a thing for the use of “us” - those who are holding rights at the time...There is something of a seamless web involved: there will be resistance to giving the thing “rights” until it can be seen and valued for itself; yet, it is hard to see it and value it for itself until we can bring ourselves to give it “rights” - which is almost inevitably going to sound inconceivable to a large group of people.”

Describing how this occurred during the Abolitionist and Suffragist movements, Stone envisioned a similar fate for nature.  His warning proved prescient. Since my organization’s co-founder, Thomas Linzey, drafted the first rights of nature law in 2006, we have repeatedly heard the argument “nature can’t have rights!”  

Often this comes from corporate and development interests, but not exclusively.  For some, it challenges the notion that human beings are divinely intended to rule nature, or somehow that recognizing the rights that nature needs to be healthy and resilient will diminish the “right” that humanity assumes it has to use nature.

Despite this opposition, as environmental crises grow, a shift is underway to move to a new system of law in which the rights of nature – including that basic right to even exist – is respected and protected.  In Ecuador, Bolivia, Uganda, Colombia, Bangladesh, communities in the U.S.A, and elsewhere, nature – including species and ecosystems – are now rights-holders.  Those rights are being codified in law and enforced in courts.  Efforts are also underway in Switzerland, the U.K., Ireland, Nepal, and elsewhere.

The question today is no longer “can nature has rights?”  It can, and, in a growing number of countries, it does.  The question now is how do we extend the recognition of those rights, and move to a necessary and new relationship with nature in which human actions are protective, rather than exploitive, of the natural world.