Could granting rights to nature change the climate debate?

15 December 2010
Article

In the wake of failure in Cancun and the much deeper problem that humanity is no longer living within the ecological capacity of the planet, might it be time for nature to have its own legal advocates?

Psychology has become a fashionable tool in the climate world to try and understand the levels of climate denial exhibited most vocally by the rowdy cohort of climate naysayers. With the conclusion of climate talks in Cancun, a more relevant question seems to be whether our climate negotiators suffer from an even worse form of denial – one that accepts the climate science but knowingly signs agreements that do nothing to stop our rush towards runaway climate change.

That certainly seems to be the conclusion if you followed the UN climate negotiations in the first two weeks of December. For 11 days, there were no shortage of powerful speeches by all countries, warning starkly that nature would not compromise and that entire peoples were at risk from inaction. Yet on the final night of negotiations, the same figures were leading standing ovations and gushing with praise for an agreement that includes no new commitments for emission reductions and no new financing for adapting to climate change. As the the Bolivian government, the sole dissenter, noted this was a very “hollow and false victory.”
  
Climate change is not the core problem

This jarring disconnect between knowledge and actions looms even larger when you consider that UN climate negotiators are only talking about the very limited goal of reducing emissions of carbon in the atmosphere.  They are ignoring the big picture that climate change is only one of many interrelated and converging crises (including soaring extinction rates, and the depletion of freshwater, fish stocks, forests and arable land).   These issues are all symptoms of the same problem –  contemporary human civilization is living well beyond the ecological capacity of the planet that is our home.
 
The reason why few are willing to look at the big picture is that admitting to this collision course between humanity and nature opens up a conversation that most of the world’s governments and corporations are desperate to avoid. They prefer to focus  on greenhouse gas emissions, because it narrows the response to debating emission reduction techniques, instead of on transforming the economic, legal and political systems that encourage and legitimize environmental destruction.

This is not surprising. When we can't even agree to adequately limit levels of a few gases in the atmosphere, fundamental “system change” seems beyond the scope of any negotiation. Yet it is also clear, in round after round of UN climate talks, that our current international mechanisms for tackling these unprecedented global crises are failing us. Those on the brunt end of climate change can do little but plea for the largest polluting nations to do more, while we slip ever faster towards climate chaos.

Challenging BP over violation of rights of nature

However a little reported event, a few days before the Cancun summit, may point us to a way forward that could start tackling one of the root causes of climate change. On 26 November 2010, a group of prominent international environmental and social activists and indigenous people’s leaders filed a lawsuit with the Constitution Court in Quito, Ecuador. This is based on the provisions in the new Ecuadorian constitution that, for the first time in history, recognize that Nature (or Pachamama) has inherent legal rights which any person may enforce before a court of law.  The lawsuit was filed against British Petroleum (BP) and relates, not to oil spills in Ecuador, but to the harm to natural ecosystems caused by the oil spill from the Deepwater Horizon drilling platform in the Gulf of Mexico. Plaintiff Diana Murcia explained the motives for the case, saying that, “Nature is the only subject that has been absent from the legal discussions surrounding the oil spill in the Gulf of Mexico, and one of our goals is to introduce Nature in the international debate as a rights-bearing entity.”

Up to now, the various legal suits taken up against BP are largely for personal injury and economic damages, and for breaches of specific environmental laws such as the US Clean Water Act. The Ecuadorian lawsuit, by contrast, would be the first to look in its totality at the impact of the oil spill on the marine environment and surrounding ecosystems. The lawsuit states that no financial sum will compensate for the environmental damage, and instead directs its demands towards ensuring that such a disaster will never happen again. Specifically it calls on BP to make public all internal documents related to the run-up and response to the disaster, to prepare effective contingency plans that will prevent future damages to the environment, to end deep sea oil drilling, and to invest in non-destructive energy solutions that leave oil in the ground.

The plaintiffs are arguing that the case should be heard in Ecuador based on the principle of universal jurisdiction which allows particularly heinous crimes that offend humanity’s conscience such as genocide, to be prosecuted anywhere, irrespective of where the act occurs.

Overcoming the environmental void in international and national law

This unprecedented case illuminates the inadequacies of current international and national regulatory systems.  Our legal systems do not afford effective protection to Nature, because nature has been confused with property, which by definition cannot have rights and which is available to be traded and exploited just as slaves were.  Legal cases concerning the environment are, like the case of BP, usually only for breaches of certain environmental regulations or for the economic costs; not for the damage caused to the environment itself on which we, and all life depends. Unless that changes, environmental disasters like the Deepwater Horizon oil spill will continue.

However the Ecuador case can perhaps be seen as the first salvo in a growing upsurge of support for new mechanisms and instruments to stop environmental destruction. In Bolivia, President Evo Morales convened a World People’s Climate Conference on 22 April 2010  that proclaimed a Universal Declaration of the Rights of Mother Earth, that they have since taken for discussion at the UN and enacted into national legislation. Bolivia also launched an international campaign for an International Climate Justice Tribunal, which would hold countries and companies accountable for climate change.  In November, Pittsburgh, Pennsylvania became the first major U.S. city to ban natural gas drilling while elevating community decision-making and the rights of nature over corporate 'rights.'

Introducing nature rights and climate tribunals won't end environmental abuses, as human rights legislation has not forever ended human rights abuses. However it does enable us to begin to use our legal systems to balance destructive human initiatives against the need to maintain the health of planetary ecosystems.  It would also provide a mechanism to help force our political leaders to devise policies to keep us within Nature’s non-negotiable limits. It could start to close the widening chasm between what needs to be done to stop climate change and environmental devastation and the complete ineffectiveness of our current political response. It's time as Archbishop Emeritus and Nobel Peace Prize laureate Desmond Tutu has said “to embrace our kinship with all the beings of the Earth community and to recognize, respect and defend the rights of all.” Our collective survival depends on us defending the rights of the planet that is our home.

Cormac Cullinan, from South Africa, is an acclaimed environmental lawyer and founder of EnAct International