'Re-imagining Participation in the Anthropocene: The Potential of the Rights of Nature Paradigm' by Paola Villavicencio-Calzadilla and Louis Kotzé in Birgit Peters and Eva Julia Lohse (eds) Sustainability through Participation? Perspectives from National, European and International Law (Brill, 2023) 51-72 comments
In this chapter we argue that our existing suite of anthropocentric law and governance arrangements that are aimed at environmental protection, are not sufficiently geared towards protecting the non-human world. We show how these laws actively exclude vulnerable non-humans in the governance processes that directly affect their health and well-being. Non-human interests must be more fully present and represented in our anthropocentric socio-regulatory institutions, and we argue that this could be accomplished through the rights of nature paradigm. We firstly reflect on the new socio-ecological reality of the Anthropocene, its deepening socio-ecological crisis, and its multiple patterns of differentially distributed vulnerability. We then interrogate why a rights of nature approach could be a viable option to extend participation opportunities to the non-human world. The next part analyses several examples from Latin American countries where rights of nature provisions are being used to facilitate participation of the non-human world. Our discussion shows that participation is mostly facilitated through guardianship and representation measures, which hold out considerable promise, despite limitations and pitfalls.
'Laboratories of the Future: Tribes and Rights of Nature' by Jensen Lillquist and Elisabeth Kronk Warner in (2023) 111 California Law Review 325 comments
Rights of nature are increasingly moving into the legal mainstream, both in the United States and abroad. Rights of nature laws, which seek to make injuries to natural entities legally cognizable and justiciable in court, generally consist of at least one of two elements: (1) legal personhood for nature or specific natural entities and (2) substantive rights for nature or specific natural entities.
This Article explores the scope and origins of rights of nature and examines how they are being implemented both within the United States and abroad. It highlights the work being done by Tribes and Indigenous Peoples in this space and argues that, particularly in the United States, state and local governments should learn from this work. Specifically, the work of Tribes in this space can serve as alternative ethical paradigms and laws for non-Native communities looking for an alternative to the status quo. In the United States, Tribes can serve as "laboratories" for environmental change given their tribal sovereignty and environmental ethics. In addition, Tribes exis within a different legal framework from U.S. states and municipalities. By comparing rights of nature-related litigation in Florida and in the White Earth Nation of Ojibwe, it becomes clear that rights of nature provisions adopted by Tribes stand a greater chance of withstanding legal challenge than provisions adopted by municipalities.
Accordingly, environmental reform can benefit from the collaboration and experimentation of Tribes. To date, six countries have implemented the rights of nature on a national level, and several states and cities outside the United States have passed rights of nature. Within the United States, various Tribes and municipalities have passed rights of nature laws; no state has done so. Considering that before the early 2000s, no rights of nature law had been passed, these laws represent a fairly significant legal and cultural shift, at least within their respective jurisdictions. Environmental law scholars are clamoring to examine the impacts of these developments and how advocates might successfully utilize such arguments in state and federal court. While existing environmental laws and related environmental ethics and values within the United States tend toward anthropocentrism in prioritizing the protection of humans alone, rights of nature laws and ideals center on the natural world. For many who view rights of nature as valuable to the effective protection of the environment and as a necessary switch toward an environmental ethic that will better protect the Earth from the negative impacts of exploitation, it may seem as if the arc of the moral universe is finally bending toward justice.
Ultimately, non-Native communities considering or looking for ethical paradigms alternative to anthropocentrism should consider the work being done by Tribes in this space. Tribal environmental ethics may depart from anthropocentrism, and Tribes are already implementing laws based on such alternative ethical paradigms. Yet, scholars and advocates often fail to look to Indigenous Peoples and Tribes for guidance in this area;" Indigenous Peoples and Tribes have been incorporating the rights of nature principles into tribal and customary law for a long time. This Article helps to fill the void by demonstrating not only that the theoretical conception of rights of nature may benefit from Indigenous Peoples, but also that Tribes can offer legal protections where other actors cannot. To date, at least five Tribes within the United States have passed rights of nature resolutions. These Tribes, as much as any state or municipality, represent laboratories in which the concept of rights of nature can be tested for strengths and weaknesses. This testing may in fact produce the United States' first enforceable rights of nature provisions.
