Words: Mumta Ito (January 2016)
Image Credits: Pixabay
Reading Time: 10 minutes

In the last 40 years alone, the time from which the first environmental laws were enacted, we have extinguished 50% of the populations of all species on earth, climate change is upon us, and the world’s ecosystems are collapsing. One of the key reasons this is happening is because our laws – designed around an economic paradigm that is coupled with the destruction of nature – legitimizes it.

In my career as a lawyer, I have advised multinationals, investment banks, and governments as well as grassroots, communities and NGOs working to protect the environment. One thing I learned was that our current structure of law is inadequate to face the challenges of our time. At best, it can slow the rate of destruction, but it cannot prevent or reverse it. This is why I set up Rights of Nature Europe – to bring in new innovative structures of law that can do just that.

Outdated paradigms

Our modern legal system operates within the following out-dated paradigms:

  • Mechanistic (i.e. viewing the world as made up of separate unconnected objects interacting in a predictable way);
  • Anthropocentric (i.e. viewing the world as existing solely for the use of human beings – this is where ideas about “natural resources” and “natural capital” derive basing nature’s value on its utility to humanity rather than on its intrinsic value);
  • Adversarial (competitive/retributive model where one party wins at the expense of another).

None of these paradigms reflect the full scientific reality of how natural systems operate. This gives rise to the illusion of a “power-over” relationship with nature which has led to our current predicament.

Law facilitates economics

There was a time when law facilitated human values – today law facilitates economics. The problem is that it is facilitating an economic paradigm of perpetual growth that is coupled with the destruction of nature.

Our economic paradigm is based on one key concept: the utility value of nature, or valuing nature as a resource for human consumption – the source of ideas like “natural resources” and “natural capital”. However, nature is infinitely valuable – because it is the source of life. Our health and wellbeing are integral with the health and wellbeing of the Earth. We cannot have a viable human economy that destroys the Earth economy because one derives from the other. The logical conclusion is societal collapse.

The European Union has committed to strive toward an absolute decoupling of economic growth from environmental destruction. To achieve this, we need innovative laws that recognise the intrinsic value of nature – if we’re changing the game, we also need to change the rules that govern the game.

Utility value translates in law as nature being an “object” under the law – either property or fair game unless special rules apply. However, this approach, which in the past has been applied to slaves, indigenous people, women, and children who were also deemed by law to be “objects”, has several practical drawbacks that makes it almost possible for people and governments to protect nature using current law.

Our planet Earth in its present mode of flouresence is being devastated. This devastation is being fostered and protected by legal, political and economic establishments that exalt the human community while offering no protection to the non-human modes of being. There is an urgent need for a system of governance which recognises that the well-being of the integral world community is primary, and that human well-being is derivative – an Earth Jurisprudence.

Thomas Berry

Feature_RightsForNature_3

The problem with our current structure of law

The law doesn’t recognise a relationship between us and the rest of nature. Law governs relationships – but only between “subjects” of the law – there is no obligation, or a legal duty of care, towards nature. As a result, anybody has the right to destroy nature that doesn’t belong to anyone. And property owners have the right to destroy ecosystems on their property, unless the law specifically says otherwise. This vacuum in the law leaves nature outside the system, fundamentally unprotected. We are left with the impossible task of reactively legislating to carve out protections, rather than proactively creating the legal frameworks needed to create true sustainability.

As a result, we end up with piecemeal protection and a reductionist approach. This ignores the uncertainty and unpredictability involved in dealing with the interconnected living systems. A good example of this is our endangered species protection system that relies on listing which species are under threat, which takes years of scientific research. However, scientists say we are losing literally dozens of species each day – in the time it takes to update the lists, it’s already too late. Also, in a radically interconnected world, who is to say which species is a VIP, and what effect the loss of a seemingly insignificant species would have on the ecosystem as a whole?

Another consequence is that environmental issues are dealt with almost exclusively by the planning and administrative courts. The only conversation that can happen in court is whether the correct planning procedure was followed, and the outcome is simply a referral back to the planners. There is a presumption in favour of economic benefits, but environmental impact has been quantified and proven (even though scientists agree that it is impossible to do so because of the complexity and unpredictability of interconnected living systems), favouring a precautionary approach.

The only avenue left in law is if a disaster happens and people litigate – the courts will compensate people for proven monetary loss – but there is no obligation to restore the damage to nature, because there is no relationship in law between us and the rest of nature.

There are also problems with enforcement, piercing of the corporate veil, the lack of flexibility in sanctions, and the fact that a model of law that is adversarial and retributive does little to uncover the root cause of the problem and co-create solutions. Finally, it leads to a cultural attitude of separation from nature which is at the root of our environmental crisis.

Our current system of law is missing an overarching framework that puts our existence on this planet onto its proper context – the Earth system being primary because our existence on this planet depends on its healthy functioning – and our human systems (like the economy) being secondary to that as they are derivative. This means that there is no legal requirement for governments to formulate policies that prioritise the health of ecosystems and integrate this requirement across all levels and sectors of society. Accordingly, environmental decisions are made exclusively at the micro-level under individual planning cases, with no regard to the cumulative effect of such decisions in eroding ecosystems and Earth system resilience as a whole. Scientists say this is dangerous because ecosystems can suddenly shift state when certain stress levels are reached, and there is no guarantee that the new state will support human life.

Financialisation of Nature

Our governments and banks recognise that regulation has failed. However, their solution is to leave the future of our eco-systems – and therefore the lives of our future generations – in the hands of market forces.

Realising that the value of nature has been left out of economic equations, the components and functions of nature, including biodiversity, are priced according to their utility value and assigned an economic value that forms the basis for the creation of financial instruments that can be traded on the primary and secondary capital markets. The instruments are acquired by corporations to offset their overuse, degradation, or pollution of the environment, and they can further profit from trading them. Pollution permits, natural capital bonds, biodiversity banks, and offsetting already exist. Essential prerequisites for financialisation are pricing nature, characterising nature’s functions as ‘ecosystem services’, and redefining nature as ‘nature capital’.

This approach has several drawbacks that could seriously accelerate the rate of destruction:

  • Ecosystems are living systems: each one is unique and interconnected. It is not possible to destroy one and mitigate by restoring another somewhere else without destabilising the whole.
  • Offsetting speeds up the planning process: so long as mitigation credits can be bought, environmental impact assessments are not required. This gives citizens even less of a say in environmental matters and less grounds to protect nature.
  • Segregation and pricing of the interconnected components of an ecosystem is an artificial construct. It does not reflect the reality of how ecosystems operate, their cumulative function, or their true value in the web of life.
  • The system favours the status quo by legitimizing environmental destruction. Instead of encouraging corporations to change their ways, it allows the same actors to make additional profits through financial speculation.
  • Decision rights over how to live in a territory and manage the ecology there are increasingly transferred from the local sphere to multinationals and financial institutions. Communities are often violently displaced.
  • It leads to profit-driven speculation. If a company stands to profit from the price of clean air going up, then it will invest in activities that ensure that clean air is more scarce and in high demand in the future. In the case of biodiversity, investors can profit from speculation on the extinction if species, as if it were a game.
  • All markets are susceptible to crashes – in the case of nature-based financial products, crashes could have disastrous consequences for the underlying ‘conservation’ project when the land is repossessed.

Practising this approach to law requires that we prioritise the interests of the whole and of future generations, over short-term self-interest.

How feasible is it?

Given that our current legal and economic models have been ineffective in halting the widespread destruction of the biosphere, more and more countries are looking at rights for nature as a sensible way forward. It is the new emerging paradigm in environmental law, and here are some of the examples:

  • National level: Ecuador (constitutional recognition of the rights of nature and holistic concept of ‘wellbeing’); Bolivia (Law and Ombudsman for Mother Earth).
  • Court decisions: New Zealand, Costa Rica, Ecuador, India, Argentina.
  • Local/municipal level: Over 36 US municipalities including Santa Monica and Pittsburgh; the state of New Mexico; Mexico City; and a municipality in Spain. In the US, these laws recognise the rights of communities and ecosystems, and subordinate corporate interests where they work against the common good.
  • Customary Law: Legal recognition of indigenous governance and sacred sites – mainly in Africa – protects the living and promotes community ecological governance.
  • UN level: The UN has a Harmony with Nature Department to promote rights of nature. In 2010, Bolivia presented a Universal Declaration for the Rights of Mother Earth. Since then, various UN resolutions have moved in this direction. Actual documents and legal precedents can be found at harmonywithnatureun.org/rightsofnature

How can we make this happen?

Historically, a rights-based approach has never come from those in power. It has to be claimed by the people. In Europe, we have participatory democracy where citizens can propose laws. One million statements of support across seven member states will enable us to put collective rights of nature on the legislative agenda of the EU. We are bringing a European Citizens Initiative to do this.

Our team has produced a draft law, a Directive, to show how a framework for rights of nature and ecological governance could work at the EU level across different legal regimes. We focus on collective rights which include ecosystems, species and the atmospheric climate – also pioneering a new paradigm for climate protection.

Although society has talked about sustainability for decades, there is no current legal framework for this. In our rights of nature framework, we include the human right to a healthy environment, the rights of future generations, Ombudsman for nature, alternative court system, re-wilding, ecological governance, and more. When the EU adopts a Directive, it has to be transposed into law in all member states. To download a copy of the draft Directive, visit www.rightsofnature.eu

In Europe, participatory democracy also exists at the local and national levels in several European countries, therefore, we are also working to support people to start initiatives. If you would like to find out more about our work, support us, or get involved, please contact us at: info@rightsofnature.eu

Conclusion

The EU set out a vision in its environmental policy of a circular economy that brings peace and prosperity for all. To achieve this, we will also need a new paradigm of law that operates in harmony with Nature.

Certain natural universal laws govern all of life. When our laws are aligned with these natural laws, we create peace, prosperity, and harmony for all. When our laws are not aligned with these universal laws, we create a spiral of destruction as we are seeing in the world today. All societies that have ignored this truth have perished. WE have a choice.

MUMTA ITO is one of the world’s leading experts on Rights of Nature. She is the founder of Rights of Nature Europe and the International Centre for Wholistic Law, and a Director of the Association for the European Citizens Initiative. Previously in her career as a lawyer, she advised investment banks, multinationals, and governments, as well as NGOs and grass-roots organisations. She also set up an NGO in the Caribbean to create a people’s movement to save an island of global ecological importance.

This article was originally published in issue 99 of Permaculture Design magazine.

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