Outlining three arguments for Rights of Antarctica

Baard P.

Beckhauser E.F.

Latin America is highly vulnerable to climate change. From a justice-centred approach, its communities have been using human and constitutional rights as a strategy to combat environmental degradation and protect ecosystems in climate litigation. Thus, the paper analyses the ecological dimension of human rights arising from the Latin American climate litigation by selecting disputes that link human rights and the protection of a specific ecosystem, which enables catching both the right to a healthy environment and the rights of nature. As for the results, the national courts interpret human rights from the notion of a socio-ecological system, emphasising a rights-duties approach based on social justice. The territory becomes a non-static space, there is a long-term temporal scale of rights, and the lawsuits elaborate on the interests of future generations. The rights of nature acknowledge a more-than-human world and argue that nature's legal titularity complements human rights, and both agendas meet at the intersection with the safe climate system. Although climate change appears as a secondary concern, applicants use the climate crisis as a crosscutting element aimed at ecosystems’ protection and its impact on human rights. In conclusion, these disputes are ecological legal experiences that extensively redefine human rights law from the meeting between the system of rights and the cultural context of groups historically excluded from the spaces of power. Human rights receive a new axiological content reoriented from the realities of peripheral territories and previously invisible ecological backgrounds through the dynamic interaction with plural subjects that become drivers of transformations.

Gilbert J.

AbstractAgainst the backdrop of failing environmental governance, rights of nature (RoN) are lauded as the paradigm shift needed to transform law's approach to nature. RoN have been increasingly proclaimed at the domestic level but remain mostly absent from international law. As examined in this article, this is notably as a result of some profound incompatibilities between international law and RoN, including the fact that most international treaties approach nature as a resource to be owned, exploited or protected for the sake of humans. However, despite this dominant approach to nature, some areas of international law, notably under the leadership of Indigenous peoples, are starting to acknowledge a more relational approach to nature, putting forward concepts of care, kinship, and representation of nature in international law. Building on these developments, this article offers a reflection on potential synergies between RoN and international law, specifically by changing the latter's approach to nature. It argues that some of the RoN concepts concerning duty of care, institutional representation of nature's voice, and ecocentrism could serve as a platform to reinterpret some of the anthropocentric principles of international law, creating some potential synergies between RoN and international law.

Epstein Y., Ellison A.M., Echeverría H., Abbott J.K.

We review the use of science by lawmakers and courts in implementing or rejecting legal rights for nature in Ecuador, India, the United States, and other jurisdictions where some type of rights of nature have been recognized in the legal system. We then use the “right to evolve” to exemplify how interdisciplinary work can (i) help courts effectively define what this right might entail; (ii) inform how it might be applied in different circumstances; and (iii) provide a template for how scientists and legal scholars can generate the interdisciplinary scholarship necessary to understand and implement the growing body of rights-of-nature laws, and environmental law more generally. We conclude by pointing to what further research is needed to understand and effectively implement the growing body of rights-of-nature laws.

Gilbert J., Macpherson E., Jones E., Dehm J.

AbstractOver the past decade and a half, various natural entities have been recognised as having rights or legal personhood in certain domestic jurisdictions. The idea of nature as rights-bearing is seen by advocates to be a new and improved response to environmental threats. While rights of nature approaches are increasingly evident in transnational law, orthodox international law has yet to engage seriously with such approaches, despite increasing calls to recognise the rights of nature in international law. In this contribution we consider the potential and limitations of rights-based protections of nature as part of the ‘greening’ of international law. We argue that attempts to incorporate the rights of nature into international law need to be understood within the wider context and history of international law, including trajectories of colonialism and economic resource exploitation. Although rights of nature approaches may offer a path towards a greener international law, this path should not be followed in a way that reproduces problematic, homogenising aspects of international law, but instead centres human relationality with nature in place. Instead, we argue that there are important lessons to be learnt from transnational attempts to protect and implement rights of nature and legal personhood, especially where models are informed by Indigenous peoples’ relationships with nature.

Baard P.

AbstractThat nature, including insentient entities such as trees, rivers, or ecosystems, should be recognized as right-holders is an enticing thought that would have substantial practical repercussions. But the position finds little support from moral conceptions of rights and moral distinctions that have judicial relevance in the sense of providing normative reasons for legislation and assessing existing laws. An alternative to viewing rights of nature as proper rights resting on valid moral claims that ought to be legally recognized is to regard them as ‘manifesto’ rights. Such rights are based on political demands and hold even if there is no one with a corresponding duty to fulfill them. I investigate whether rights of nature can be considered manifesto rights. Some objections to regarding rights of nature as manifesto rights will be considered, such as difficulties of delimiting the borders of an environmental entity and making successful analogies with existing (human) rights based on interests and needs. It will be suggested that while some of those challenges can be mitigated by custodianship, it is not clear what needs of insentient entities in nature would justify such claims. It is found that rights of nature depend substantially on legitimate custodians both for delineation of the entity in question and for establishing interest-like characteristics. But rights of nature are not manifesto rights when there is a legitimate custodian having the possibility of evoking duties in others. However, the need for a legitimate custodian in delimitation and establishing normatively relevant characteristics of specific environmental entities defeats universal appeals to rights of nature.

Kurki V.A.

AbstractThe Rights of Nature movement has recently achieved significant successes in using legal personhood as a tool for environmental protection. Perhaps most famously, the Whanganui River in Aotearoa New Zealand was accorded legal personhood in 2017. These kinds of development have attracted plenty of scholarly interest, but few have scrutinized a foundational underlying question: Can natural areas, such as rivers, or other non-sentient natural entities actually be legal persons?The case of the Whanganui River is an example of the direct legal personhood model: it purports to grant legal rights to the river directly. Some other jurisdictions have set up legal persons to administer rivers, without declaring the rivers themselves to be legal persons: the indirect legal personhood model. This article offers legal-philosophical arguments for why legal personhood cannot be attributed to rivers directly.Normally, legal persons can hold claim-rights and be legally wronged. Some legal persons, such as human adults, can also be held legally responsible and exercise legal competences by entering into contracts. Natural entities cannot do any of these things. Hence, they cannot be legal persons directly; rather, their putative direct legal personhood will collapse into indirect legal personhood. Hence, treating natural entities as direct legal persons amounts only to a legal fiction. Such fictions may be justified for symbolic reasons. However, if environmental protection requires setting up a legal person to protect a natural entity, such protection in most cases can be realized without claiming that the natural entity itself would have become a legal person.

Putzer A., Lambooy T., Jeurissen R., Kim E.

Mancilla A.

Epstein Y., Schoukens H.

A growing number of jurisdictions throughout the world have recognized some type of legal rights of nature. This jurisprudential trend has thus far made few inroads in Europe. However, its apparent absence is misleading. In this article we argue that, explicit or not, nature as protected by European Union (EU) law already has certain legal rights in the Hohfeldian sense because other entities have legal obligations towards it. Moreover, we argue that recent decisions of the Court of Justice of the EU can be interpreted to support our claim that nature, as protected by EU law, already enjoys some legal rights that cannot be trumped by mere utilitarian interests, and that these rights can in turn be recognized and applied by national courts. We further suggest that public interest litigation can contribute to developing rights for nature in Europe, even absent any explicit recognition of these rights in EU law or in national legislation.

Kauffman C.M., Martin P.L.

Leane E., Lucas C., Marx K., Datta D., Nielsen H., Salazar J.F.

Antarctic cities have been characterised primarily as portals through which goods and services from around the world can be transported to the frozen continent. However, recent research suggests that this concept should be expanded to address other forms of connectivity, including those felt by people living in these cities rather than simply passing through them. In this article, we explore the meaning of urban relations to Antarctica in the 21st century, focusing on the Australian city of Hobart. We outline evolving understandings of gateway cities, and of Antarctic gateways particularly; examine Hobart’s diverse connections to the far south; and analyse current public policy related to the city’s status. We then report the results of a survey (n = 300) conducted in 2018 to investigate how citizens understand their city’s relationship with Antarctica. Survey results show that residents prioritised ecological concerns over economic or political issues and felt strongly that the city should play a custodian role in the future of Antarctica. Hobartians’ strong sense of environmental and cultural connectedness with Antarctica suggests a need to rethink the concept of Antarctic gateways if policy is to reflect adequately the meaning of this identity to residents of the cities that circle the southern continent.

Salvatore M.R., Levy J.S.

The surface of Mars is universally thought to have experienced widespread cold and dry environmental conditions for at least the last half of its geologic history, with more modern studies suggesting relatively cold and dry conditions early in its geologic history as well. However, the paucity of liquid water and mean annual temperatures well below the freezing point of water do not necessarily mean a complete cessation of all water-related geologic activity at the Martian surface. Over the past several decades, investigations in the McMurdo Dry Valleys (MDV) of Antarctica have revealed a dynamic geological, environmental, and ecological system resulting from locally optimized conditions operating over repeated, albeit brief, intervals during summer months. In this chapter, we compare the hyper-arid and hypo-thermal environments of the MDV and the modern Martian surface and discuss three unique enigmas that demonstrate how the Antarctic is a valuable analog to better understand processes on Mars.

Corrigan D.P., Oksanen M.

O'Donnell E., Poelina A., Pelizzon A., Clark C.

AbstractThe rapid emergence of rights of Nature over the past decade across multiple contexts has fostered increasing awareness, recognition, and, ultimately, acceptance of rights of Nature by the global community. Yet, too often, both scholarly publications and news articles bury the lede – namely, that the most transformative cases of rights of Nature have been consistently influenced and often actually led by Indigenous peoples. In this article we explore the ontologies of rights of Nature and earth jurisprudence, and the intersections of these movements with the leadership of Indigenous peoples in claiming and giving effect to their own rights (while acknowledging that not all Indigenous peoples support rights of Nature). Based on early observations, we discern an emerging trend of increased efficacy, longevity, and transformative potential being linked to a strongly pluralist approach of lawmaking and environmental management. A truly transformative and pluralist ecological jurisprudence can be achieved only by enabling, and empowering, Indigenous leadership.

Baard P.

AbstractThe shortcomings of existing legal tools to abate species extinctions and habitat losses raise the attractiveness of recognizing rights of nature (RoN), in effect granting legal standing directly to non-human entities and collectives. RoN have been recognized in several domestic legislations and attract increasing popularity and enthusiasm. Yet, from an analytical and general perspective RoN rely on a contentious relation between concepts such as intrinsic value and interests, respectively, as justifying RoN. Consequently, a general analytical defense of RoN has not been provided and recognition hitherto has been constrained to the contingent factors of domestic legislations. Here, I will provide an examination of RoN by way of expressive theories of law where law expresses (some) ethical values. Expressive theories of law have not previously been related to RoN. I will examine whether such theories have the potential of defending RoN as rights that legislatures have strong general reasons to recognize. The examination of RoN through the lens of expressivist legal theories provide a better understanding of RoN, and the analytical and conceptual commitments they presuppose, including the relation between ethics and law and the values underpinning RoN to be expressed by law.