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Why does the planet need rights?
Just as we as humans have rights, so the law has created rights for abstract entities such as corporations. Current laws put the interests of corporations over those of nature and communities, which allows the best interests of ecosystems to be overridden. The vested ‘rights’ of the corporations are routinely used to override local, democratic decision making and have often resulted in extensive damage to that particular part of the planet (of the ecosystems in the immediate vicinity as well as to local communities).
Is this an international problem?
Yes. Damage can and often does extend across national boundaries as well, by the creation of pollution and/or by escalation of greenhouse gas emissions. Pesticides such as PCB and DDT, once routinely dumped on the shores of Lake Michigan in the USA, now appear in the breast milk of polar bears and Innuit mothers in the Arctic. Likewise CO2 emissions generated released into the atmosphere from coal and gas stations do not remain within the immediate vicinity. Instead they contribute to the overall escalating emissions generated from fossil fuel plants and entering into our overburdened atmosphere. Recent American climate change case law demonstrates that liability has been evaded on the basis that injury and damage is so wide that it cannot be remedied under national legislation. Such cases clearly highlight the fact that global issues now demand global solutions to what is now recognised as an international problem.
How is the planet currently viewed in the eyes of the law?
Nature, it’s ecosystems and natural communities are treated as articles of property. It wasn’t so long ago that we gave up the notion that a wife was the property of her husband, likewise slaves were once deemed the lawful property of their owner. As a consequence, the owner of an article of property can abuse that entity without recourse under law. All efforts to protect the property are subordinate to the owner’s rights – and in the case of nature, often it is a commercial entity who has ‘rights’ to use or misuse the land as it sees fit. That means that ownership of land carries with it the right to destroy ecosystems and natural communities that depend upon the land for their existence.
But what of existing environmental laws – can they not provide necessary protection?
No. Even the best environmental laws treat ecosystems as private property or as “common property”. They attempt to regulate activities that damage the environment, but fail to establish a rights-based structure under which liability arises in response to the violation of the rights of ecosystems. Governments attempt to protect ecosystems through environmental regulation that legally validates certain activities that endanger the natural environment, while attempting to limit the degree of harm that can be inflicted upon the natural environment.
Can you give me an example?
Petroleum companies and mining corporations are issued permits to extract coal and bitumen; those permits establish legally permissible levels of pollution for the corporation. However, the regulatory limitations established by the system are usually written by the corporations themselves through governing legislation. Thus, citizen efforts to protect the environment through those regulatory frameworks have generally failed. See CELDF for further examples.
In Norway, oil and gas activities have put pressure on the seabed environment near offshore installations, particularly as a result of discharges of oil-contaminated drill cuttings. Although these discharges have been prohibited since 1992, it will take many years before the environment is restored to its original condition. Without a voice to represent the injuries caused to the environment, the damaged eco-systems remain damaged. The oil and gas industry is the largest source of greenhouse gas emissions in Norway, and the second largest source of acidifying emissions, after coastal shipping and fishing vessels.
What difference would a legally enforceable Planetary Rights bring?
A legally enforceable Planetary Rights that applied universally would challenge systems of law which grants corporations constitutional “rights” and protections.
- it would establish a rights-based structure under which liability arises in response to the violation of the rights of ecosystems;
- it would enable governments, organisations, and people to take action on behalf of ecosystems and communities to defend them against projects that would interfere with their integrity, existence, and functioning;
- while under existing law, people defending ecosystems can only recover damages based on an individual’s loss of use of that ecosystem, a legal system of ecosystem rights would guarantee that the ecosystem’s right to exist and flourish could not be impaired. Damages would be measured not by people’s loss of use of the ecosystem, but by the damage inflicted on the ecosystem itself.
- corporations would be held accountable in international law for their actions against the environment.
I thought Universal Declarations were not in themselves legally binding. Is this correct?
Yes, this is correct. Universal Declarations, per se have only moral weight – often referred to as ‘soft law’. It is the implementation country by country thereafter that incorporates them as ‘hard’ national law. Take the Universal Declaration of Human Rights, implemented in 1948. It was not until 1997 that we had a Human Rights Act incorporated into UK law, but in reality little changed legislatively as the rights have been incorporated in our laws over the preceding 50 or so years. For example the Right to gender equality as set out in Article 2 had already been enshrined in our sex discrimination laws.
Nevertheless, when implemented nationally, Universal Rights provide universal application – we can seek reliance on their international applicability to take action outside of the one country where the complaint is held. For instance, on October 17 1998, The Universal Declaration of Human Rights was famously relied upon by a magistrate in Spain to issue a warrant for the arrest of Augusto Pinochet who was at that time visiting England for medical treatment. Pinochet was arrested on a Spanish provisional warrant for for crimes against humanity while he was president of Chile. The case was a watershed event in judicial history, as it was the first time that a former dictator was arrested on the principle of universal jurisdiction in a foreign country, for crimes committed in his own country, without a warrant or request for extradition from his own country. Multi-jurisdictional enforcement of Universal Rights provide the tools to prosecute here that which is taking place, or have taken place, elsewhere.
Are there any recent examples of Planetary Rights laws?
Yes, Ecuador is the first country in the world to codify a new system of environmental protection based on legally enforceable Rights of Nature, or ecosystem rights. On the 28th September 2008 Ecuador voted in it’s Bill of Nature’s Rights, which recognises that ecosystems and natural communities possess independently enforceable legal rights to exist and flourish. Recognition of those rights will enable governments and communities to enforce those rights to protect the natural environment in Ecuador. The constitution also calls on government to avoid measures that would destroy ecosystems or drive species to extinction.
Ecuador is leading the way for countries around the world to fundamentally change how we protect nature.
Article 1 of the new “Rights for Nature” chapter of the Ecuador constitution reads: “Nature or Pachamama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution. Every person, people, community or nationality, will be able to demand the recognitions of rights for nature before the public bodies.”
Ecuador’s constitution recognizes that ecosystems possess the inalienable and fundamental right to exist and flourish, and that people possess the legal authority to enforce those rights on behalf of ecosystems, and the requirement of the government to remedy the violations of those ecosystem rights. To be wholly effective, such Rights now need to be implemented universally.
It seems to be speed is of essence to save the planet. When the Universal Declaration of Planetary Rights is endorsed by the United Nations, why not have it created as a legally binding International Declaration?
Yes, we do have to move fast to save our planet from our climate change crisis. Application of the principle of universal jurisdiction — that certain crimes are so egregious that they constitute crimes against the whole Earth community (ecosystems as well as humans) and can therefore be prosecuted in any court in the world – would provide an effective and swift way of protecting and preventing further damage. This could be done. All it needs is for our nations to unite.
Why have another declaration, the Universal Declaration of All Beings?
Tackling problems of this magnitude by hard law is not enough. We, the people of this planet, have duties and obligations which we all too often fail to recognise. To impose laws is one way of ensuring that we uphold our responsibilities to the wider community, but how much better it is when we the people decide to do it not because it is imposed, but because we believe is a better way and a better life. We can individually and collectively make that leap – from the hierarchical world to the holistic world. The Peoples’ Declaration is a lifeline to that better place.
Photos: Tar Sands by Glendon Roots and Shoots Ecuador by sara_y_tzunki Garden of Eden by Charles M. Kozierok