Rights for rivers, trees, forests and air!

I first came across this story in the South African Mail & Guardian newspaper in late September and have only just come found the clipping again while going through my conference papers.

A little Googling later and the picture becomes clearer – in late September the Ecuadorean people voted by a substantial majority to introduce a new constitution – the country’s twentieth.

The new constitution introduces a raft of changes proposed by Ecuador’s President, Rafael Correa that include enhancing his chances of re-election for a further two possible terms, a ban on foreign military bases (which will mean that the US will have to abandon a military base in the coastal city of Manta), a guarantee of universal health care and free education to post-secondary level. Most surprising is theĀ  Chapter that gives nature “the right to exist, persist, maintain and regenerate its vital cycles, structure, foundations and its processes in evolution.”

Chapter: Rights for Nature

“Art. 1. 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 organisms. The application and interpretation of these rights will follow the related principles established in the Constitution.

Art. 2. Nature has the right to an integral restoration. This integral restoration is independent of the obligation on natural and juridical persons or the State to indemnify the people and the collectives that depend on the natural systems. In the cases of severe or permanent environmental impact, including the ones caused by the exploitation on non renewable natural resources, the State will establish the most efficient mechanisms for the restoration, and will adopt the adequate measures to eliminate or mitigate the harmful environmental consequences.

Art. 3. The State will motivate natural and juridical persons as well as collectives to protect nature; it will promote respect towards all the elements that form an ecosystem.

Art. 4. The State will apply precaution and restriction measures in all the activities that can lead to the extinction of species, the destruction of the ecosystems or the permanent alteration of the natural cycles. The introduction of organisms and organic and inorganic material that can alter in a definitive way the national genetic patrimony is prohibited.

Art. 5. The persons, people, communities and nationalities will have the right to benefit from the environment and form natural wealth that will allow wellbeing.”

And, as the discussion on this issue at Metafilter shows, there are a lot of ‘what-ifs’, including that there have been many constitutions written where the practice of the law doesn’t follow its letters, the difficult practical issues of applying a law with such sweeping effect in a country where 46% of the population lives in poverty and that it may be subject to the whim of the next contrary parliament or dominant politician.

But there also seem to be a lot of positives – apparently these measures where sought, in part at least, to provide some measure of sanction against the international corporations that have wreaked social and environmental havoc in many regions of Ecuador in recent decades.

This reminded me of the debate about whether non-human species, and in particular non-sentient species and things like trees and rivers and air, should be accorded legal rights recognisable at Law.

Here when I refer to ‘Law’, I’m referring to, in the Australian context at least, that law created by Parliament and the common law recognised and justicable by our Courts. Australian Aboriginal people, and many other indigenous peoples around the world, have no problem sharing their religious and secular law with animals, states of mind, places and other non-human entities. I was almost tempted to say non-sentient where I put non-human, but stopped because, for the Aboriginal peoples that I know, just about all things around them have sentience – either in and of itself or vested through the thing’s function and role/s as a reincarnation, temporary or otherwise, of a known and namedĀ  human or ancestral being.

And, I also remembered a book that a good friend of mine passed to me many years ago and which still sits on my bookshelf – read, but not for some years. When Professor Christopher Stone of the University of Southern California released his book Should Trees Have Standing? Towards Legal Rights for Natural Objects” in 1972 many of the issues he raised seemed far-fetched and fanciful. But his ideas have stood the test of time and, as the promotional review for the 25th anniversary re-release of Professor Stone’s work notes, he:

“…explains that the historic trend in law continually extends rights. What was earlier property such as slaves, wives and children, over time has been granted rights. Today, not only humans, but corporations, trusts, cities and nation-states are recognized to possess rights.”

“Professor Stone proposes that legal rights be granted to forests, oceans, rivers and the natural environment as a whole. He argues for three criteria of rights holders: they require standing in their own right; their damages count in determining outcome; they can be beneficiaries of awards. A guardian could oversee the interests of the natural feature.”

“In the forward Garrett Hardin notes, ‘change in an idea by which we have previously been unconsciously ruled becomes much more probable once the idea has been explicitly brought out into the open.’ In a time of looming environmental crises, this thoughtful book promotes such change.”

Another book that argues for the recognition of rights for non-human beings is “Rattling the Cage” , by American lawyer Stephen M. Wise. Rattling the Cage is a powerful and often unsettling book that makes compelling arguments for the according to, and recognition of, rights for non-human species, particularly those, like Chimpanzees and Bonobos that, because of their close evolutionary relationship to humans, have been the subject of often cruel and invasive scientific testing. Wise’s book opens with a gruesome tale of the death of Jerom:

Jerom died on February 13, 1996, ten days shy of his fourteenth birthday. The teenager was dull, bloated, depressed, sapped, anemic, and plagued by diarrhea. He had not played in fresh air for eleven years. As a thirty-month-old infant, he had been intentionally infected with HIV virus SF2. At the age of four, he had been infected with another HIV strain, LAV-1. A month short of five, he was infected with yet a third strain, NDK.

Although Jerom lived alone in his cell for the last four months of his life, others were nearby. Twelve other chimpanzees-Buster, Manuel, Arctica, Betsie, Joye, Sara, Nathan, Marc, Jonah, Roberta, Hallie, and Tika-filled the bleak cells…None of them knew whether it was day or night. Each slowly rotted in that humid and sunless gray concrete box. Nearly all had been intentionally infected with HIV. Just five months before Jerom died of AIDS born of an amalgam of two of the three HIV strains injected into his blood, Nathan was injected with 40 ml of Jerom’s HIV-infested blood. Nathan’s level of CD4 cells, the white blood cells that HIV destroys, has plummeted. He will probably sicken and die.

And, while Stone and Wise’s books seem a long way from the Ecuadorean rain-forests and rivers there is a direct philosophical thread that links them – we all (should) know in our hearts and our minds that we are the equals of these things – that we share a fragile world with them and that our futures are codependent but our laws sometimes take a long time to catch up.

As Wise states:

“For four thousand years, a thick and impenetrable legal wall has separated all human from all nonhuman animals. On one side, even the most trivial interests of a single species-ours-are jealously guarded. We have assigned ourselves, alone among the million animal species, the status of “legal persons.” On the other side of that wall lies the legal refuse of an entire kingdom, not just chimpanzees and bonobos but also gorillas, orangutans, and monkeys, dogs, elephants, and dolphins. They are “legal things.” Their most basic and fundamental interests-their pains, their lives, their freedoms-are intentionally ignored, often maliciously trampled, and routinely abused. Ancient philosophers claimed that all nonhuman animals had been designed and placed on this earth just for human beings. Ancient jurists declared that law had been created just for human beings. Although philosophy and science have long since recanted, the law has not.”

Would this work in Australia?

Do we have the mechanisms and the imagination to recognise that other ‘things’ have rights?

And, as many now argue, does it matter – because rights-based law doesn’t work any more?

Many say the law is an ass – but what if the lawyer (or their client) was a monkey?

Your thoughts, suggestions and comments – as always – are welcome!