How will we reshape law compatibly with nature?

Rana Göksu¹

We demand a just life and a future not only for people but also for animals, forests, rivers, seas and other non-human beings. Because -- in the face of a climate crisis whose consequences can be experienced more and more seriously every day -- we feel that we need to create a form of life that is compatible with the flow and changes of nature. Whether we like it or not, the situation will bring about changes to the rules and practices of our social life.

Our social life is - to a great extent - shaped by law. In this article, I will deal with the question of "where is nature?" in our judicial system.

The concept of environment is not new in law. The right to environment understood as the "environment for people" has been recognized as a human right for almost fifty years in both national and international law because of various economic and political concerns. This concept of right does not change the idea that a distinction is made between social and natural life; on the contrary, it has reinforced an understanding that prioritizes human beings and detaches them from the natural environment, in which they live, by considering their health and well-being first.

Giving Rights to Nature

The existing legal systems are unable to create effective solutions to global crises that cannot be delayed or ignored. This situation causes us to rethink the role of non-human persons within the law, question our relationship to nature and even giving nature rights by redefining the relationship.

It is also an important issue how non-human entities can be incorporated into legal systems and whether the preferred way offers truly effective and definite solutions. In this context, however, it is useful to keep track of what is happening in the world and try to understand its dynamics in the law in order to evaluate effective solutions.

The first countries to recognize the rights of nature

The first legal development started with the Constitution of Ecuador, which came into force in 2008. Ecuador was the first country to recognize the rights of nature within its constitution. So much that, according to the text of the constitution, the rights of nature, which are unique to nature and result from its own qualities, are recognized as equal to human rights. Likewise, Bolivia followed Ecuador and recognized the rights of nature in its Constitution in 2011.

Both constitutions gave Pachamama ("Mother Earth" / "Mother Nature") a constitutional status and also gave legal significance to this indigenous motif derived from Inca beliefs. It should be noted at this point that the ways in which these two constitutions deal with nature are fed from different perspectives: While in the Bolivian constitution nature is still seen as a "resource" for humans, in the Ecuadorian constitution, nature is clearly recognized as a subject of rights².

The rights of the river

Although regulations on paper such as in a constitution are important, it is not possible to speak of the existence of a regulation, if it is not implemented. Therefore, to assess whether these two constitutions with such progressive arrangements are actually effective, we need to look at their application.

A couple living by the Vilcabamba River in Ecuador started a legal dispute for this river, which was significantly damaged by road works. The dispute went down in history because it ended in favour of the river by virtue of the articles in the Constitution of Ecuador in 2011³.

There is another similar court ruling in Colombia. In 2018, the Colombian Court of Appeal issued a comprehensive decision of over 160 pages for the Atrato River against illegal mining activities carried out negligently by the local government⁴. In that ruling, the court clearly recognized the river as a legal subject, sujeto de derechos, and therefore ruled that the rights of the river should be protected. Apart from this ruling the court recognized a new concept of right: the concept of "bio-cultural rights". The Court ruled that a committee be created acting on behalf of the river, formed by indigenous people and the government, to actively protect these rights. The general approach of the court and the justifications of its decisions⁵ are striking.

This decision was not the first of the kind of the Colombian Constitutional Court, similar decisions were made in 2011⁶ and 2015⁷. In this sense, Colombia is a country rich in implementation.

Glaciers as legal subjects

Although not as progressive as Colombia, similar legal trends could be seen in New Zealand and India in 2011.

The legal status for the Whanganui River in New Zealand, the Ganges and Yamuna Rivers and the Gangotri and Yamunotri Glaciers in India has been recognized, in this case as a result of legal agreements between the administration and the local people. Thanks to these legal initiatives, rivers and glaciers have lost their status of legal objects and have become legal subjects.

This situation can be seen as an important turning point for the classical, human-centred legal tradition. Because nature is no longer seen as an environmental resource which only human beings can own and use, it has become a legal subject, in other words, an actor, existing with rights of its own.

The important question to be asked here is: What does the potential of a change of subjects in law signify? It shows that law is not static; it can always change following definitions made and their applications, the zeitgeist, the needs of the age and what life requires. The tendency to recognize nature as a legal subject and to offer it rights equal to human rights shows the need for change in legal systems and the potential of reconstructing the definitions in law according to the circumstances.

A just future for people, animals, forests, rivers and seas

Law is a structure of human origin that is different from natural reality. It cannot exist outside the realm of law. Accordingly, if we want to create and maintain a common life and future for all entities, we must see and respect all forms other than humans and their special values.

We should realize the systemic discriminations and injustices against everyone/ everything except human beings, which have found their norms in science, law or in some way in culture with the aim of glorifying human beings. To eliminate the growing incompatibility and separation between social and natural life, we must first recognize this entrenched double structure. We have to think about whether another relationship can be possible. On this basis we need to construct - rather than shaping nature within our human systems - a new system suitable for the functioning of nature, which includes the recognition of nature as a legal subject.

Although all legislative changes that somehow affect and maintain nature are very important and promising, we have often seen that legal regulations are unfortunately not enough. Let me use examples to illustrate this: Although the Ganges and Yamuna Rivers are recognized as legal subjects, they are still among the dirtiest rivers in the world, and mining activities still continue in the Amazon forest in Ecuador.

If so and if the law is indispensable for us, we have perhaps to change our thinking. Instead of "How do we invite nature to our law?" we should ask "How will we reshape law compatibly with nature?"