International Rights of Nature
Reasons for a Paradigm Shift and Ways Forward
Rights of nature have experienced a major upswing in recent years (for an overview of legal developments, see here). Starting with a local ordinance in the US state of Pennsylvania in 2006, legislators and judiciary of more and more states have recognized explicit rights or legal personality of non-human entities. Prominent examples include the Ecuadorian Constitution of 2008, the 2016 judgment of the Colombian Constitutional Court on the Atrato River and the Spanish Law 19/2022 on the legal personality of Mar Menor. Indigenous communities have played an important role in the recognition of the rights of nature under national law, as rights of nature largely reflect indigenous cosmovisions grounded in the interconnectedness of humans and non-human nature (see here, pp. 648-649). But, in recent years, discussions on the rights of nature have also increasingly extended to international law (see, as a starting point, the UN Documents on Harmony with Nature), partly presenting them as a possible remedy to the weaknesses of international environmental law.
This article gives an overview over such arguments and sketches four ways in which the rights of nature can manifest as part of international law.
Arguments in Favor of International Rights of Nature
The status quo of international environmental law has been described as fragmented and deficient (see, for example, here). The regulation of different environmental matters such as climate, ocean or biodiversity protection in separate treaty regimes may lead to regulatory overlap, protective gaps or even contradictory obligations (on protective gaps in international environmental law, see here). Moreover, current international environmental law is largely based upon anthropocentric ethics, aiming to protect nature for human use or enjoyment (see here and here). Where nature protection is based on human interests alone, protective gaps can emerge in cases where humankind does not directly or obviously benefit from natural entities or processes (see here, p. 144). Overall, international environmental law has not been able to stop environmental degradation at a global scale (see e.g. here, pp. XV-XXIII).
Rights of nature approaches, on the other hand, aim to protect nature for its inherent value and independently of its concrete use for humanity. In addition, a rights of nature approach reflects the factual interdependence of humans and nature. It views humans as part of ecosystems rather than separate from them and focuses on holistic, ecosystemic health, therefore being able to better reflect and account for interrelations between humans and nature (see here and here). A further benefit of an international rights of nature approach is its contribution to international legal pluralism and overcoming a Western bias inherent to international law due to its historical development.
Multiple ways exist in which rights of nature can gain recognition in international law. Aside from explicit recognition in treaty law, it would be possible to expand the scope of human rights to include rights of non-human nature via treaty interpretation or to develop a holistic commons paradigm as a cornerstone of the international legal order. On a more local level, current developments point towards the emergence of regional customary international law around the rights of nature in Latin America. Even though some of these suggestions may seem like a far stretch, existing legal approaches support an increased importance of the rights of nature in international law.
Integration of Rights of Nature into International Treaty Law
A rather obvious possibility in which rights of nature can manifest in international law is by integrating rights of nature into international treaty law. The Kunming-Montreal Global Biodiversity Framework (the Framework) recently adopted under the Biodiversity Convention offers a first indication of such an approach. The Framework serves as a “strategic plan for the implementation of the Convention and its Protocols” until the year 2030 (para. 8). It stresses the role of indigenous peoples and the recognition and consideration of different value systems, including rights of nature, which it calls an “integral part” of the Framework’s successful implementation (Annex, paras. 8 and 9).
Further, rights of nature could, for example, be established under the framework of the United Nations Convention on the Law of the Sea (UNCLOS). Although the Agreement on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction has been adopted under UNCLOS on 19th June 2023 without recognition of rights of nature, such an undertaking is far from impossible. Firstly, it would be possible to interpret UNCLOS and the state obligations under Art. 192 thereof in a way that frames the sea as a rights-bearing entity (see here, p. 55). Moreover, Harden-Davies et al. have suggested applying the rights of nature to marine biodiversity beyond national jurisdiction. Representation of the rights-bearer’s interests in this case could be guaranteed through a body specifically designed for this task.
An Expansion of Human Rights Law
A second way of internationally recognizing the rights of natureis by extending human rights to nature protection independently of human interests. This may sound contradictory at first, but it is not too far-fetched: The Inter-American Court of Human Rights has extended human rights to nature protection apart from human affectedness in its Advisory Opinion OC-23/17, where the Court held at para. 62 that the right to a healthy environment protects “components of the environment […] as legal interests in themselves” (also mentioned here). The novelty of such an approach lies in rejecting a hierarchy and dichotomy between human and non-human nature and integrating indigenous worldviews into human rights law. The final aim of such a development may be establishing an overarching framework of “natural rights”, which accommodate both human and nature’s rights in an integrated way.
Further, indigenous (human) rights constitute an entry point for rights of nature into international law, as indigenous cosmovision largely does not distinguish between humans and nature and harm to a community’s natural surroundings frequently equates harm to the community itself (as discussed here). Rights such as the right to self-determination recognized in Article 3 of the United Nations Declaration on the Rights of Indigenous Peoples or even the right to take part in cultural life under Article 15(1)(a) of the International Covenant on Economic, Social and Cultural Rights can therefore aid in the introduction of a rights of nature approach into international law.
A New Common Heritage Paradigm
A third possibility for integrating rights of nature into international law is through a new common heritage paradigm, which expands the concept of the “common heritage of (hu)mankind” to include earth as a whole, recognizing the interconnectedness of humanity and non-human nature and rights of nature. This proposal, which has partly been mentioned in academic literature (see here), asks for a true paradigm shift, where ecological integrity stands at the core of international decision-making. Recognition of a global environmental commons requires significant state cooperation and the willingness of states to deviate from their sovereign rights over their natural resources and may be a possible measure of last resort rather than an imminent reality.
On a smaller scale, a rights of nature approach could be applied to the global commons such as the high seas, the atmosphere or Antarctica, as already indicated above. Here, the clashes with states’ sovereign rights fall away, so that state resistance might not be as high. The common heritage principle, under which states have already agreed to international cooperation and nature protection for the common good, seems a promising candidate for an entry point for paradigms with even stronger universal connotations such as international rights of nature.
Rights of Nature as Regional Customary International Law
Lastly, rights of nature can emerge as part of (regional) customary international law, establishing international state obligations. Domestic rights of nature have been especially prevalent in Latin America (see here, para. 36). Among some states who have recognized such rights, some evidence points towards the existence of state practice and opinio juris as regards the notion that ecosystems or natural entities possess justiciable rights to be protected and, if needed, restored. While a detailed analysis is beyond the scope of this blogpost, rights of nature are firmly established in Ecuadorian law and jurisprudence. In Colombia as well, the Constitutional Court has held that ecosystems can be subjects of rights (at para. 9.32), which has been affirmed in various other court judgments, and Panama has recently adopted a national law recognizing a catalogue of nature’s rights and its legal subjectivity. The current developments in Latin America hence point towards the emergence of a respective rule of regional customary international law.
All this shows that the increased prominence of rights of nature approaches in national law extends towards the international legal sphere, despite its particularities regarding consensus finding. Although many issues, such as the question of representation, remain to be clarified, both starting points in law and suggestions in legal literature support this development. It remains to hope that states will continue to follow this trajectory towards a more holistic approach to international environmental protection.