Why Rights for Nature?

Why Rights for Nature?

by Beat Dietschy

[This article posted on 12/17/2024 is translated from the German on the Internet, https://www.neuewege.ch/warum-rechte-der-natur.]

Poisoned rivers and streams, dying out species, endangered ecosystems: Should they not have a right to restoration? The liberation of non-human nature from a state of lawlessness requires their recognition as subjects and bearers of rights.

We can no longer accept, as theologian and cultural historian Thomas Berry said, that the natural world exists only to be used by humans for their own benefit and in unlimited ways.1 Berry also found it untenable that humans have been granted all rights, while other, non-human beings have no rights. The proponents of the rights of nature are opposed to this disenfranchisement, which contributes to the destruction of the foundations of life: legal systems would have to recognize “that all aspects of nature are legal subjects with inherent rights”.2 “Everything has a right to be recognized and honored,” said Berry. “Trees have tree rights, insects have insect rights, rivers have river rights."3

There are now more than 500 initiatives worldwide working towards this at the regional, national or international level. However, it is still not common sense that animals, mountains or nature as a whole should have inalienable and enforceable fundamental rights. When the initiative “Basic Rights for Primates” was launched in Basel, the NZZ newspaper reported: “Which basic rights should animals even have? It is obvious that they can't do much with freedom of expression or economic freedom.”4 It actually sounds strange, noted Uruguayan author Eduardo Galeano, “that nature should have rights as if it were a human being”. On the other hand, it seems perfectly normal for large companies in the USA to have human rights. This was introduced by the Supreme Court in 1886. Galeano's conclusion: “If nature were a bank, it would have been saved long ago.”5

Exploited nature in court

Looking back a little further, the idea of animals or nature appearing in court is not so far-fetched. On April 18, 1499, a three-month-old pig was tried in France. It is said to have eaten a child instead of being eaten itself. The judge imposed the death penalty.6 Four years earlier, the Latin teacher Paul Schneevogel (Paulus Niavis) had published his book Iudicium Iovis. This was prompted by the discovery of silver at Schneeberg in the Ore Mountains, which triggered a debate about the legality of mining. In the court case, which is the focus of the allegorical writing, Mother Earth, with a torn dress, appears as the plaintiff, accusing man of matricide for the damage caused by mining. Fortuna, the goddess of fate, pronounces judgment in the trial: “It is man's destiny to rummage through the mountains, to create ore mines, to cultivate the fields, to engage in trade and to violate the earth.”7

Niavis describes what Marx later called “the dawn of the capitalist production era”: the so-called primitive accumulation, which gained momentum with the discovery of the gold and silver countries of America and “the extermination, enslavement and burying the native population in the mines”.8 This is how the history of modernity begins, a history that is linked not only to the colonization of the New World and its peoples, but also to the colonization and exploitation of nature. New forms of domination and ownership shape our relationship to the world. The split between self and other, between humans and nature, takes hold and, as the French philosopher Michel Serres says, gives rise to three “rights without a world”: the modern social contract, which manages without nature, the “natural law” that is limited to human nature or reason, and finally human rights.9 Ecofeminists such as Maria Mies and Carolyn Merchant have examined how this forgetting and denial of the subject status of nature is connected to the colonial subjugation of other peoples and the oppression of women.

In Switzerland, theologians such as Lukas Vischer and Otto Schäfer and lawyers such as Peter Saladin and Jörg Leimbacher submitted a petition to the World Alliance of Reformed Churches in the early 1990s calling for “rights to be granted not only to human beings but also to God's creation”. They rejected “the view that living and non-living nature are mere objects, given to man at his arbitrary disposal”.10 “This modern anthropocentrism has de-animated nature and made people incorporeal subjects,” state theologian Jürgen Moltmann and lawyer Elisabeth Giesser in the same brochure. The only way to overcome the fateful split between subject and object is to establish a “community of life with all creation on this earth”, which can also be realized in a “legal community of all living beings”.11

Such proposals have sparked discussion of the rights of nature, as did the question posed by legal scholar Christopher D. Stone in 1972: “Should trees have legal rights?” They were first implemented in Ecuador, where they were enshrined in the constitution in September 2008.

Constitutional rights for nature

With the Ecuadorian constitution, nature has been recognized as a legal entity. This is not least due to the efforts of Alberto Acosta, who led the constituent assembly and had already (unsuccessfully) sought to develop the country in a way that was not based on oil extraction and extractivism as Minister of Mining and Energy. However, the driving force behind the drafting of the constitution was also the indigenous movements, which had been fighting since the 1990s for a new pluri-national, pluri-ethnic and multilingual self-understanding of state and society.

The central article 71 of the new constitution bears witness to this: “Mother Nature or Pachamama, in whom life reproduces and actualizes itself, has the right to have her existence, the maintenance and regeneration of her vital cycles, structure, functions and development processes fully respected.” The concept of Pachamama takes intercultural aspects into account. The fact that “Pacha”, unlike the Western concept of nature, refers to the totality of time-space reality in the sense of a cosmos that encompasses humans and non-human nature is not explained as an important difference.

For the social ecologist Eduardo Gudynas, it is important that this constitution treats Western and indigenous concepts as equal for the first time. He emphasizes that with the concept of buen vivir in Article 14, the constitution opens doors for alternatives to the prevailing development concepts and introduces ecological civil rights.12 Indeed, according to Article 71, every person, every community, every people can demand respect for the rights of nature. In addition, these include the “right to restoration” of damaged ecosystems and oblige the state to take preventive measures (Articles 72 and 73).

The implementation of these rights was initially slow. In 2011, the first citizen's complaint was approved, which was directed against the damage to the Vilcabamba River caused by road construction. In the case of the heavily polluted Río Monjas, which flows through the capital Quito, a judgment was made that took into account the fact that the river endangers a whole range of ecosystems on its long journey to the Pacific Ocean. The fact that not only individual entities, but all of nature, became a legal subject has allowed the court to make such a judgment.13

The Ecuadorian constitution has had an impact primarily by providing impetus for further constitutional or legislative initiatives in Latin America and worldwide. In Bolivia, rights of nature have not yet been introduced into the 2009 constitution, but they have been incorporated into a law passed at the end of 2010. It is the result of the “World People's Conference on Climate Change”, which took place in Cochabamba in April 2010 at the invitation of Bolivia and adopted the “Proposal for a Universal Declaration of the Rights of Mother Earth”. It emphasizes that “we are all part of Mother Earth,” so “it is not possible, in an interdependent and living community, to recognize only the rights of human beings without disturbing the balance within Mother Earth.”14

In many countries, rivers have been made legal entities in their own right. A well-known example is the Whanganui River in New Zealand. The Māori iwi had fought for this for more than 150 years. In 2017, the New Zealand Parliament recognized it as an “indivisible and living whole” that “includes all its physical and metaphysical elements”.15 In Colombia, the Constitutional Court declared the catchment area of the Atrato River a legal entity.16 Twenty-five children and young adults had brought a lawsuit on behalf of future generations due to the destruction of the rainforest through deforestation, climate change and gold and platinum mining. In Peru, in March 2024, the Provincial Court of Nauta (Loreto) upheld a lawsuit brought by women of the Kukama people and declared the Marañón, a source river of the Amazon, a legal entity. The women have been litigating against the Peruvian state, its Ministry of the Environment and the company Petroperú since 2021 due to oil pollution.

In Chile, a people-elected constitutional convention was to draft a new constitution in 2021/22. Elisa Loncon, a representative of the Mapuche, was elected as its chair. This was no coincidence, given that women, social movements and indigenous people had played a key role in the popular protests that preceded it. The proposed constitution also included gender and biodiversity, the rights of nature and of future generations, and provided for indigenous land rights and autonomous territories, as well as environmental courts and ombudsman's offices for nature conservation. However, the fact that the proposal failed in the referendum was more due to the issues of pluri-nationality and pluri-culturality. For many Chileans, a homogeneous national identity is still sacrosanct and therefore a “coexistence of different peoples and nations in a single polity” (Article 5) is difficult to imagine.

Recognizing diversity

States with a monocultural legal and educational system often deny or suppress the cultural and linguistic diversity of the peoples living on their territory. This is stated by Acosta and Loncon.17 The same applies to the constitutional rights of nature: indigenous peoples do not need them in their lives because they see themselves as part of nature, not outside it. Respect for biodiversity also includes socio-cultural diversity. The intercultural interpretation of the law is rooted in the indigenous world view, allowing for divergence and diversity and thus for negotiation.18 The Ecuadorian constitution, with its contrasting terms “rights of nature” and “Pachamama”, lends itself to this. However, such constitutional rights for the protection of nature could also be used to undermine the documented indigenous land rights.19 That is why, in Colombia, for example, the indigenous side is more likely to complain about violations of the “biocultural” rights of the local population.

Many legal texts still view nature globally as the environment of humans and speak, for example, of the human right to a clean environment. However, this anthropocentrism stops at an instrumental approach to nature, which turns it into a collection of things for the purpose of satisfying human needs. By contrast, nature's inherent rights help to put a stop to this consumerist anthropocentrism. They cannot be completely detached from human rights, but nor can they be reduced to them. Human rights always run the risk of excluding the rights of other entities.

So is it simply a matter of expanding the number of legal entities to include rivers, mountains or nature as a whole within the framework of existing law? That would probably fall short of the mark. Because it would not affect the “subordination of nonhumans to the decrees of an imperial humanity”20. It arose from the fact that modern man has behaved as “master and owner of nature” (René Descartes) and has made the right to appropriate nature the legally prevailing right as well.21

Authors such as Gudynas, Acosta and also the South African Cormac Cullinan, on the other hand, advocate a holistic biocentric or ecocentric understanding. This view regards humans as a special life form on Earth, but humans do not occupy a paramount role within the Earth community.22 This is close to the indigenous view, for which Pachamama is not actually a legal entity, but ultimately the lawgiver. She demands, says Ramiro Ávila-Santamaría, a judge at the Ecuadorian Constitutional Court, “that humans step down from their pedestal in order to find their place on the planet”.23

Rights of nature mean that we learn to master our domination over nature and set limits to the capital-driven compulsion to exploit. Another communication with the Earth is possible. Does she not speak to us “in forces, connections and interactions”24?

Thomas Berry: The Great Work [1999]. New York 2010, p. 61.
Cormac Cullinan: Rights of Nature. In: Ashish Kothari et al. (eds.): Pluriversum. A Lexicon of the Good Life for All. Neu-Ulm 2023, p. 260.
Thomas Berry: The Great Work, p. 5.
Kathrin Alder: Fundamental Rights for Animals: more than just a monkey business. In: NZZ-online, 15.10.2020.
Eduardo Galeano: Children of the Days. Wuppertal 2013, p. 172.
Ibid., p. 299.
Paulus Niavis: Iudicium Iovis – Or the judgment of the gods on mining [1495]. Berlin-Ost 1953.
Karl Marx: Das Kapital, Erster Band. MEW 23, Berlin-Ost 1972, p. 779.
Michel Serres: Der Naturvertrag. Frankfurt/M. 1994, pp. 62–64.
Lukas Vischer (ed.): Rights of Future Generations. Rights of Nature. Proposal for an Extension of the Universal Declaration of Human Rights. Bern 1990, pp. 11 f.
Jürgen Moltmann and Elisabeth Giesser: Human Rights, Rights of Humanity and Rights of Nature. In: Ibid., pp. 24 f.
Eduardo Gudynas: Derechos de la Naturaleza. Ética biocéntrica y políticas ambientales. Lima 2014, pp. 72–74.
Jenny García Ruales and Andreas Gutmann: Rights of Nature in Latin America. In: Matthias Kramm (ed.): Rights for Rivers, Mountains and Forests. A New Perspective for Nature Conservation? Munich 2023, pp. 33 f.
Pablo Solón: Rights of Mother Earth. In: id. et al.: System Change. Alternatives to Global Capitalism. Vienna/Berlin 2018, p. 175.
Klaus Bosselmann and Timothy Williams: The River as a Legal Entity: The Example of the Whanganui River in New Zealand.
Cormac Cullinan: Rights of Nature (see footnote 2).
Alberto Acosta: Buen Vivir. Vom Recht auf gutes Leben. Munich 2015, p. 130; Elisa Loncon: Indigenous Language and Identity inside Social Movements among Mapuche People Today. In: Robert E. Reinhart et al. (eds.): Southern Hemisphere Ethnographies of Space, Place and Time. Oxford 2018, p. 343 ff.
The Bolivian sociologist Rivera Cusicanqui expresses this with the Aymara word ch'ixi, which means an unmixed simultaneous contradictory components (Silvia Rivera Cusicanqui: Un mundo ch'ixi es posible. Buenos Aires 2018). See Andreas Gutmann: Pachamama as a legal entity. doi.org/10.17176/20210623-132806-0.
This was the fear of the UN Special Rapporteur on the Rights of Indigenous Peoples, Victoria Tauli-Corpuz: Lieselotte Viaene: Can Rights of Nature Save Us from the Anthropocene Catastrophe? Some Critical Reflections from the Field. In: Asian Journal of Law and Society 9, 2022 pp. 187–206 and 196.
Philippe Descola: Beyond Nature and Culture. Berlin 2011, p. 289.
Jörg Leimbacher: On a New Relationship to Nature. The Rights of Nature. In: Hans G. Nutzinger (ed.): Nature Conservation – Ethics – Economy. Marburg 1996, p. 76 f.
Cormac Cullinan: Rights of Nature, p. 261.
Ramiro Ávila-Santamaría: Tribunal for the Rights of Nature. In: Ashish Kothari u. a. (Hrsg.): Pluriversum. Ein Lexikon des Guten Lebens für alle. Neu-Ulm 2023, S. 284.
Michel Serres: Der Naturvertrag, S. 71.

Beat Dietschy, Dr. phil, *1950, is a philosopher, theologian and publicist. He wrote his doctoral thesis on Ernst Bloch, worked as a journalist in Latin America and was managing director of the aid organization Bread for all. He is involved with Comundo, among other things, and is a member of the Neue Wege editorial board.dietschy [at] gmx.ch

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