The pace and scale of environmental destruction around the globe are enough to drive anyone to despair. Report after report after report has documented the enormous losses in biodiversity across the planet, to the point where, according to leading scientists, the sixth mass extinction is under way and human activity is the main reason. And, as if that were not enough, we have witnessed in recent years the emergence of yet another type of environmental violence: the murder of those who defend the environment. In 2015 alone, there were 185 confirmed killings of environmental and land defenders around the globe. In the face of all this violence to people, wildlife, oceans, lakes, rivers, fish, forests, soils, the air, etc., the states of the world seem utterly incapable of effective action, as the UN special rapporteur on human rights and the environment reported in 2017.
Not surprisingly, unprecedented threats have given rise to unprecedented responses. Two are most interesting: the birth of the Nature Needs Half (NNH) movement and the growing body of legal measures supporting the rights of nature.
The NNH movement argues that the globe has reached the point where the remaining biodiversity can be saved only if half of its surface is reserved for nature. According to Edward O. Wilson, a biologist and professor emeritus at Harvard who came up with the idea, “At one-half and above, life on earth enters the safe zone. Within half, existing calculations from existing ecosystems indicate that more than 80 per cent of the species would be stabilized” (Half-Earth: Our Planet’s Fight for Life, 2016, p. 4).
Given our treatment of the world’s biodiversity, is such a project even remotely possible? Perhaps. But thus far the protected areas in the world comprise only about 15 percent of the land and 2.8 percent of the oceans (p. 186). Yet Wilson is able to point to several initiatives for encouragement. For instance, Brazil’s environment minister has signed the legal documents required to fund, forever, the Amazon Region Protected Areas Program, covering 51.2 million hectares. It is the world’s largest network of protected tropical rain forests and three times the size of the entire US National Park System (p. 230). And in many other areas around the world, the building of dams has been “responsible for most of the recorded extinctions of native fish and mollusks. Many of the dams are now being torn down, with the annual rate of removal doubling during the first decade of this century” (p. 230).
Another venture that Wilson points to is the Yellowstone-to-Yukon Initiative, started by the Canadian environmentalist Harvey Locke. It declares its vision to be “an interconnected system of wild lands and waters stretching from Yellowstone to Yukon, harmonizing the needs of people with those of nature.” Since 1993, it has increased protected areas from 11 to 21 percent within the region.
The idea of a vast expansion in areas reserved for nature has been accompanied by a vast expansion in the meaning of rights, particularly in the understanding of who — or, more accurately, what — may claim rights. Many now see nature itself as a claimant. It is no longer sufficient that individuals have a right to a healthy environment. Nature’s rights must also be recognized: its rights to protection, conservation, maintenance and restoration.
The argument was given force by a seemingly unlikely proponent: a justice of the US Supreme Court. But William O. Douglas, who served on the Court from 1939 to 1975, was a different kind of jurist. As a sitting judge, he supported, organized and participated in ecology-related protests and wrote and spoke movingly about the importance and value of wilderness conservation. He was also an avid hiker. In a 1972 judicial dissent, based on Christopher Stone’s essay “Should Trees Have Standing?,” Douglas proposed that, just as a corporation and a ship are given a legal personality with rights, “so it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life.”
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Sound strange? It probably does, but the concept’s strangeness dissipates when one considers the importance that is being attached to it by a number of legal scholars, jurists, governments and NGOs. For instance, in Colombia in April 2018, the Supreme Court attributed legal personality to the Colombian Amazon region. In India, the high court in the state of Uttarakhand ruled that the Ganges and Yamuna Rivers should be considered legal persons. In New Zealand, the government passed a law in 2017 making the Whanganui River a legal person with two guardians, one from the state and one from a Maori tribe. Several US communities have passed ordinances recognizing the rights of nature. Ecuador’s constitution, amended in 2008, contains a section on the rights of nature that states, among other things, “All persons, communities, peoples, and nations can call upon public authorities to enforce the rights of nature.” The rights of nature argument is currently being tested in Nigeria (the River Ethiope) and Nepal (the Himalayas).
And, in a landmark advisory opinion on the environment and human rights, the Inter-American Court of Human Rights determined that the right to a healthy environment protects the environment per se. In other words, says the legal scholar Maria Banda, forests, rivers, seas and the like “constitute protected juridical interests in themselves.” Damage to the environment could be justiciable (able to be heard and adjudicated in court), “even absent evidence of harm to individuals (a requirement that has led to the dismissal of environment-related claims in other cases).” This interpretation effectively recognizes that nature has rights.
Of course, legal personhood may not come to mean much in the implementation. Many countries already have a whole battery of environmental laws, and yet here we are, entering another mass species extinction. Clearly, something has to emerge to save us from ourselves.
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