Does the Earth Need More Legal People?

Asking whether more people are good for the earth may not be considered appropriate in many academic circles. But, as discussed below, a number of recent laws, cases and movements have championed the idea that populating the law with new legal people may be necessary to protect nature or prevent climate change. These new legal subjects have taken a number of forms, including Mother Earth, Pacha Mama, rivers, ecosystems, natural communities, glaciers, and species. Some of these legal people are nature as a whole, others are particular natural entities such as individual rivers or animals, and others are all of a type of natural entity, such as rivers, in a jurisdiction. Many of these legal persons are based on or have a connection to indigenous worldviews or religious beliefs.

Ecuador and Bolivia, prominent examples of the first of these types, recognize the rights of spiritual conceptions of nature as a living whole, such as the Andean earth and fertility goddess Pacha Mama, or Mother Earth. New Zealand, as Mihnea Tănăsescu’s blog post explained, recognized the personhood of several natural features that had particular importance for New Zealand’s Indigenous iwi, as well as other New Zealanders. Among these are the Whanganui River or Te Awa Tupua, which is defined as “an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements”, and Te Urewera, a natural area which the law that establishes its legal personhood describes as “ancient and enduring, a fortress of nature, alive with history; its scenery is abundant with mystery, adventure, and remote beauty” as well as for the Tūhoe iwi “the heart of the great fish of Maui” and “their place of origin and return, their homeland”. Certain natural entities have been held to be legal persons by courts as well. As noted by political scientists Craig M. Kauffman and Pamela L. Martin, Colombia’s Constitutional Court was influenced by the New Zealand laws in ruling that upholding biocultural human rights necessitated granting Colombia’s Atrato River the status of a living person. The Bangladesh Supreme Court recognized all Bangladesh rivers as living entities with legal personhood. Unlike many other instances of rights of nature, this decision does not appear to be based on any indigenous or other biocultural rights, but rather on the constitutionally supported public trust doctrine and the human rights to a healthy environment and right to life.

Many of the successful recognitions of nature’s legal subjectivity have been connected to Indigenous worldviews or religious ideas about how to define nature, leading perhaps to a suggestion that rights for nature are less appropriate in Western legal systems that value the separation of religion and law. On the other hand, the public trust doctrine and constitutional rights to a healthy environment and life are rather common in “Western” constitutions, and, as in Bangladesh, perhaps can provide a basis for holding certain natural entities to be rights holders. Interestingly, all of the rights recognitions for nature were in some way connected or determined to be necessary to protect human rights and interests.

As of yet, non-human natural entities have not been recognized as subjects of rights in Europe. However, several recent important European cases have expanded the boundaries of human environmental rights. In the well-known Urgenda decision of 2019, the Dutch Supreme Court held that, in failing to sufficiently reduce greenhouse gas emissions, the Dutch state was not meeting its obligation to protect the right to life and right to private and family life of the interests represented by the plaintiffs, which included young Dutch citizens. Similarly, the 2021 Belgian Klimaatzaak case, the Brussels Court of First Instance held that individual plaintiffs as well as an NGO had standing to challenge Belgium’s failure to sufficiently reduce emissions, and that by this failure, Belgium was in breach of its duties to protect the human rights of the thousands of citizen plaintiffs. The court however rejected a claim on behalf of 82 trees, as trees are not subject of rights under current Belgian law. And in the 2021 Neubauer decision, the German Constitutional Court held that in not taking stronger action to prevent climate change, the state was violating the child plaintiffs’ future freedoms that would be curtailed by an inability to emit more carbon. In these three cases, the courts premised states’ responsibility to reduce greenhouse gas emissions on the rights of currently living persons; no new legal subjects were necessary.

Climate change, at issue in these three European cases, is of course expected to impact humans as well as other natural entities. It can be argued that human rights may not reach all aspects of environmental protection, particularly ecosystem and species protection, and that natures’ rights may also be necessary. On the other hand, nearly all vindications of natures’ rights and recognition of the legal personhood of non-human natural entities is in some way premised on the protection of human rights. Still, the legal recognition of non-human natural entities may in some situations be a more efficient way to protect both nature and human rights, and there exist models for doing so in a way compatible with European legal systems.

Yaffa Epstein is a researcher in Environmental Law and Pro Futura Scientia Research Fellow at the Swedish Collegium for Advanced Study at Uppsala University, Sweden

Suggested Citation: Yaffa Epstein, ‘Does the Earth Need more Legal People?’ IACL-AIDC Blog (24 February 2021) https://blog-iacl-aidc.org/nature-animals/2022/2/24/does-the-earth-need-more-legal-people.