'Are Rights of Nature Manifesto Rights (And is That a Problem)?' by Patrik Baard in (2023) Res Publica comments
That 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.
Rights of nature (hereafter: RoN) may finally have come to fruition. Legislation in some nations are affirming the position, as is the United Nation’s program Harmony with Nature (United Nations n.d.), communities and activist groups are demanding recognition of RoN (Kauffman and Martin 2021), authors discuss them (Powers 2018), and anthologies are published on them (Corrigan and Oksanen 2021). Even business organizations are getting warm to the idea, such as the Sustainable Markets Initiative’s suggestion of a ‘terra carta’ (Sustainable Markets Initiative n.d.). In short, there are many calls for RoN to be accepted, and it is generating increased interest.
In this article, RoN refer to the supposed rights of insentient entities, moreover primarily encompassing aggregates such as rivers or forests. Such rights are correlated by duties of moral agents to not damage the entities in question, or imperatives to contribute to restoration should damage occur, and ought to be reflected in legislation for moral reasons. While the relation between ethics and law is by no means straightforward, the following will assume that ethical reasons can play a role in legislation, both when new laws are established, and when assessing existing laws. Moreover, as will be discussed below, there are moral distinctions with legal relevance (Kramer 2001). The awkward concept ‘entity’ is motivated by how RoN encompass a diverse range of (inanimate and insentient) objects and systems, such as rivers. To successfully accept RoN as universally valid rights that there are reasons for everyone to accept (and that should eventually issue in corresponding legislation), requires us to radically re-conceptualize notions of rights and their supporting pillars. The entities in question differ so much from other right-holders such as natural persons, citizens, and even sentient animals that it becomes highly questionable whether the same conditions apply, or whether rights would mean the same thing that we conventionally understand by them, as a right-holder having rights by virtue of specific characteristics, and grounding others’ duties. That is, current conceptualizations of moral rights with legal relevance are not applicable to natural entities. Rather, one must then settle for different criteria. Such re-conceptualization of rights is risky, given how current conceptions of rights, despite weaknesses of practical implementation, provide a ground for valid claims with substantial ethical, political, and legal importance. The risk is that right-holding, and the conditions upon which rights are ascribed, becomes unclear and too volatile to be practically implementable. This poses the choice to either reject RoN to keep existing conditions for justifying rights, or to accept RoN and reject existing conditions in favor of a model with greater flexibility.
Rather than these two options, I will investigate whether RoN can be considered ‘manifesto rights’. Manifesto rights are claims that are not yet valid claims (Feinberg 1970), and towards which no one has a corresponding duty to fulfill the claims (Pogge 1995). Such valid claims are here understood as proper rights, consistent with conventional understandings of rights resulting in claims (Feinberg 1970; Raz 1986). Feinberg suggests that a ‘claim’ that is not yet valid refers to needs, but not against any particular individual (1970, p. 254), which differs from proper rights that are valid claims resulting in duties of specific individuals. Manifesto rights are political calls for claims and needs to be recognized as valid, but which are not yet proper rights. To regard RoN as manifesto rights has the benefit of avoiding many of the objections to RoN as ‘proper rights’, while encompassing the intuition that a wrong is committed or interests are wrongfully neglected when a species goes extinct or habitat loss increases, even if it is not clear who is to do what.
Advocates of RoN suggest that they are proper legal rights or rights of more universal validity, often with reference to moral conceptions of rights, or axiological concepts such as intrinsic value (Stone 2010, 1972; Chapron et al. 2019). Though the relation between moral and legal rights is complex, to provide convincing arguments for moral conceptions of rights seems to be a strong part of a case for legal rights of nature. But as I will outline below, support from moral conceptions of rights is not available. Consequently, in this case, to regard RoN as manifesto rights provides a possible normative credential to RoN, and places them in the vicinity of rights through notions of claims that are not yet valid claims (Feinberg 1970), while also recognizing the calls from social movements and activists that RoN refer to an actual need that ought to be legally encoded. To justify RoN as ‘manifesto rights’ has the potential of providing support for a central contemporary discussion that will have practical implications for environmental law and governance, even if RoN cannot be considered proper rights.
Following this introduction, I will clarify how RoN are ill-fitted with conventional notions of rights. Sect. ‘Manifesto rights’ will survey manifesto rights. In Sect. ‘Rights of nature as manifesto rights: Possibilities and objections’, I will investigate whether RoN fulfill the conditions of manifesto rights, before ending with a concluding remark. This includes investigating the extent to which RoN refer to unfulfilled needs, and whether there is no one with a corresponding duty to fulfill that need. It will be concluded that RoN are reasonable when authorized or justified custodians represent that entity, the state it is to be in, and evoke corresponding duties of others. Thus RoN, under some conditions, are more like proper rights than manifesto rights, which defeat RoN as being general and universal rights applicable to wider sets of environmental entities.
'Rights of Nature Reach Europe: The Mar Menor Case in Spain in the Light of Latin American Precedents' by MC Fuchs in Verfassungsblog comments
On September 30, 2022, the Spanish Senate approved the „Mar Menor Act “(Law 19/2022) which granted legal personality to the Mar Menor lagoon and its basin. Being the first legal text in Europe to recognize a natural entity as a subject of rights, it is one more piece in the mosaic of a global movement towards ecological justice, which tries to find strong legal answers in times of global ecological crisis.
However, the Act is not met with approval everywhere. It is a thorn in the side of Spanish right-wing populists. A few days ago, on the 7th of February 2023, the Spanish Constitutional Court allowed a constitutional challenge against the Act brought forward by members of the Vox parliamentary group. In addition to alleged violations of the right to private property and freedom of occupation, among others, Vox challenges the Act’s legal basis because of disproportionate restrictions on agricultural activities in the region. They consider the concept of rights of nature as constitutionally unclear. Any decision or sanction carried out on the basis of the Act would be legally uncertain and therefore void.
