Butterfly at Chapada dos Veadeiros, Brazil

If any international environmental law were to recognise nature’s rights surely it would be the 1992 UN Convention on Biological Diversity (CBD)? The first objective of the CBD is the ‘conservation of biological diversity’ speaking directly to the protection of nature. Whilst the intrinsic value of biodiversity is brushed upon in its pre-amble, namely that nature has value and a right to exist independently of humans, this is soon overshadowed by an underlying view of nature at the CBD as an object; a resource to be exploited for humans, and herein lies an ontological barrier to achieving the CBD’s ambition of ‘living in harmony with nature’.

The neoliberal basis of global biodiversity law

The CBD manifests its anthropocentric and neoliberal value base in numerous ways: The definition of ‘biological resources’ with potential value for humanity,^[1] the use of concepts such as ecosystem services, and natural capital, nature based solutions, and its soft law and non-punitive approach to the conservation of biodiversity.  The use of soft law targets with no accountability mechanisms or transparency of individual country progress (see Dr Joanna Smallwood’s most recent SSRP Policy Brief, to be published 7 December 2022) , indicate the priority given by states to conservation of biodiversity, when compared to the development of the second and third CBD objectives of ‘sustainable use’ and ‘fair and equitable sharing of benefits’ which speak to resource exploitation and have agreed legally binding protocols with compliance mechanisms.[2]

Aside from the pre-amble, there is no wording which recognises the intrinsic values of nature in the goals, targets and decisions made by the CBD COP. There is no voice for nature in the power laden consensus decision-making process, and Indigenous People and Local Communities, who safeguard 80 per cent of the world’s biodiversity and are key to developing global understandings of how the global human population can truly live in harmony with nature, are not an official part of consensus decision making. Ultimately, the dynamics of COP and decision making promote and reproduce neoliberal values of the environment, seeking to maintain ‘business as usual’ for resource exploitation,and this is exactly what has happened – none of the CBD conservation objectives, targets or goals have been met and we have exceeded biodiversity planetary boundaries.

The CBD as it stands does nothing to challenge vastly unequal production and consumption patterns, trade or development – all indirect drivers of biodiversity loss. Our natural world is finite and it is clear that Mother Earth cannot fit into neoliberal models based on infinite growth through resource exploitation. A radical re-think of the value base of the CBD is needed and the Rights of Nature offers a means to achieve this with its starting point recognising that other living beings and nature have a right to exist, thrive and evolve, and we have responsibilities towards them.

Rights of Nature in domestic law

At the domestic level there has been a quiet revolution which is growing across the globe; legal recognition of the Rights of Nature, and this approach is starting to show results. The recognition that nature is a subject with legal rights, rather than an object for exploitation puts nature at the heart of decision making and recognises the intrinsic value and our inter connectedness with nature. The Rights of Nature have been implemented through different approaches; within constitutions, statute, judicial decisions, by officially recognising customary laws, ordinances, regional and local laws, and soft approaches such as declarations and earth law judgments.

According to SSRP Research Fellow and Professor of Conservation Ecology Mika Peck (School of Life Sciences, University of Sussex) ‘The global emergence of ‘Rights of Nature’ offers a powerful mechanism to protect ecosystems in face of the dual existential crises of biodiversity loss and climate change. The emerging power of legal action that sees Nature as a subject under law, supported by scientific ecological evidence in countering threats to the natural environment is clear, especially in Latin America where legislation supporting rights of nature exist within constitutions. A global precedent was set in 2021, when Ecuador’s Constitutional Court used ‘Rights of Nature’ laws to protect forests from mining activity - providing an inspiring ecocentric approach to legal protection of ecosystems.’

Since, 2000 there has been a rapid rise in Rights of Nature litigation across the globe. Ecuador, pioneered the Rights of Nature approach, enshrining them in the 2007 constitution, where Pachamama(Mother earth), now enjoys specific legal rights.^[3]  This ecocentric approach confronts neoliberal ideologies, and over 100 cases have engaged the ´Rights of Nature in Ecuador, with significant success, including two court cases during which Prof Mika Peck provided ecological data as legal evidence (see last year’s successful Los Cedros and the ongoing Junín cloud forest court case).

Other Andean countries have taken Ecuador as an example to legally recognise the Rights of Mother Earth. For instance, Bolivia introduced  the Law of the Rights of Mother Earth Act No. 071 with its 2009 constitution, the new constitution of Chile , currently being developed, is mandated to address the Rights of Nature.

Looking beyond the South American continent, further countries have adopted varied legal approaches to implement the Rights of Nature. In Uganda’s Environment Act, and an ordinance where the pre-colonial customary laws of the Bagungu communities are recognised including: the right for sacred sites to exist, thrive and evolve. In New Zealand, S3 of the Te Urewera Act 2014, recognises biodiverse, Maori land has legal identity and rights and is no longer a state owned National Park. In England, attempts to use local bye- laws to grant part of the River Frome, legal rights have been made. The UK Earth Law Judgments project and the Australian wild law judgments project seek to re-imagine legal judgments from ecocentric perspectives.

Despite the significant rise in Rights of Nature approaches they are not always successful and require careful thought and drafting (for example, the Ugandan Environment Act contains a loophole that the government may choose which land is protected by the law). Rights of Nature also requires judges who are willing to uphold such approaches (in India, the supreme court reversed an order that granted the Yamuna River legal personhood stating that it was unsustainable). Despite these limitations they remain a powerful tool to address the biodiversity crisis, which should also be strongly advocated for at the CBD.

Rights of Mother Earth in the Post-2020 Global Biodiversity Framework

Soft approaches at the global level seek to influence legal discourse on the Rights of Nature. In 2020, a Rights of Nature case was brought on behalf of the Amazon at the International Rights of Nature Tribunal, an informal but influential body, to argue that the Amazon must be recognised as a living entity by all states who’s territory it lies within. While a declaration of the Rights of Mother Earth, to be put forward for adoption by the UN, has nearly 300,000 supporters, strong calls were also made for the Stockholm 50 declaration to recognise the Rights of Nature.

An exciting opportunity exists now at CBD COP 15 to incorporate a Rights of Nature approach. A 2022 report by the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) found that policymakers prioritise values for nature, which focus on short-term gain and economic growth, and recommends embedding diverse valuations of nature in decision making, including intrinsic value. It is encouraging to see the recognition of the ‘Rights of Mother Earth’ in the proposed text for the Post-2020 Global Biodiversity Framework (Post-2020 GBF) up for final negotiation in December 2022 at Part 2 of CBD COP 15. Rights-based approaches are included in the underlying ‘theory of change’ and ‘enabling conditions’ and in some actions targets of the Post-2020 GBF.

The theory of change, an approach to strategic planning and implementation for the Post-2020 GBF, proposes that:

“It recognizes the importance of … respect, protection [promotion] and fulfilment of human rights, [and the rights of Mother Earth,] [gender equality] and foster intergenerational equity”. 

Rights-based approaches and mother-earth-centric actions are also referenced in Action Target 11 on natures contribution to people and Action target 15 on business and financial accountability for biodiversity. Another suggestion is to include the term ‘Mother Earth Centred Actions’ (MECA)^[4] in the glossary.

The theory of change text could be strengthened, for example: [The implementation of the framework must ensure the Rights of Mother Earth are upheld]. The text is also contained in square brackets, meaning that consensus has not yet been reached. It is now for CBD COP 15 to decide whether they are serious about achieving transformative change for biodiversity by agreeing to adopt a Rights of Mother Earth approach at the CBD. This is a chance – and we are running out of chances – for the CBD to mandate actions by its member parties to meaningfully address the biodiversity crisis by putting nature at the fore front of decision-making during implementation, particularly for the production, trade and development sectors driving biodiversity loss.

Dr Joanna Smallwood at preliminary meetings of CBD COP 13 in Montreal

Written by Dr Joanna Smallwood, SSRP Research Fellow and Lecturer in Law (School of Law, Politics and Sociology, University of Sussex). Joanna has a long standing interest in nature conservation and law.  As well as working on her forthcoming book  'Implementing International Environmental Law', Joanna's research focuses on transformative governance of food production and consumption and nature conservation.