As well as advocating for a Human Rights (Scotland) Act that includes a human right to a healthy environment, ERCS believes that the intrinsic value and rights of nature should be protected. Read more from an ERCS supporter specialising in international environmental law….
Nature has always been treated, in traditional western thought, as a consumable resource and as a property – devoid of its own inherent rights that is to be owned and used as its owner deems fit.
What if natural resources were granted rights?
Surely recognising the natural environment and habitat such as rivers and woodlands as legal entities with their very own rights might overcome barriers to their protection under the law? One would have thought that the answer would be an obvious, yes, especially since there is an imperative for us to recognise and to protect the natural environment in which we live, such that both humans and the ecosystem will be better served and protected in the long-term.
However, it is not always as obvious or as simple as it would seem. In recent years, several, arguably tactical, public interest litigation (PIL) cases have been launched in different countries, that have revolved round the idea of giving nature legal rights.
The concept of according rights to nature was raised as early as in 1971 by Professor Christopher Stone of the University of Southern California in response to a decision from a United States circuit court that was on appeal to the US Supreme Court. The Ninth Circuit Court of Appeals had refused to recognise that the Sierra Club, a charity, had the legal right (referred to as ‘standing’) to bring a judicial review action to restrain planning approval of a skiing development in the Sequoia National Forest. Professor Stone, in his famous essay Should Trees Have Standing? Towards Legal Rights for Natural Objects, proposed what was a radical idea at the time – to give nature its own rights to prevent the courts from making decisions like this. The Supreme Court upheld the Ninth Circuit’s decision in Sierra Club v Morton, but one of the Supreme Court judges, Justice William O. Douglas, who had come across and read Stone’s seminal article, used it as the basis of his dissenting judgment.
More recently, and in a similar vein, Cormac Cullinan in his book Wild Law describes the concept of human laws taking an ‘Earth-centred’ approach so as to live in harmony with nature, namely, ‘Earth Jurisprudence’. He explains how a new governance system where humans being in tune with their natural environment can decide on what is needed to regulate the relationship between humans and nature to ensure and maintain balance and integrity. He illustrates how humans and nature have equal rights to existence and that rights of nature (to exist and flourish without being there purely for human ownership, use and consumption) must be acknowledged and recognised in human law.
Empowerment to nature – gaining traction
Whilst rights are generally associated with people, in corporate law corporations or companies are recognised as having rights, hence having ‘legal personhood’ (or a legal identity) in the eyes of the law. So why not nature as well? Ever since the idea was first postulated, it has been simmering over several decades and is now gaining traction.
For example, Ecuador amended its national constitution in 2008 to recognise and include the rights of nature. This is revolutionary in that it grants the right to everyone to be able to go to court to protect nature and to get restorative relief in the event of damage.
In 2014, the High Court in the northern Indian state of Uttarakhand recognised and granted legal rights to the Ganges and Yamuna rivers, but these were subsequently revoked by the Indian Supreme Court.
New Zealand passed a law in 2017 to grant legal personhood to the Whanganui River. The law places joint guardianship of the river in the hands of a committee of local indigenous Maori community members and representatives of the government.
Destruction and abuse of nature – making it a crime?
A bold idea that has resurfaced recently is to make ecocide, i.e. the destruction and abuse of nature a crime that can be prosecuted under the International Criminal Court (ICC). The proposal of making ecocide a crime does come with practical difficulties, such as defining ecocide under the law, who would be held responsible, and how to enforce it.
However, more importantly, it actually comes down to the political will of powerful countries to want to push out a global law that makes ecocide a crime. But what is encouraging and perhaps offers a ray of hope is that a recent policy paper from the ICC Office of the Prosecutor placed importance on environmental destruction when selecting cases for prosecution within their legal powers and limitation. It may not happen immediately, and it will take time, but at least there is an acknowledgement of its importance at the higher levels of governance.
Apart from the recognition that nature is not just a resource to be owned and used at will, rights allow nature to ‘fight’ back. Its entrusted guardians can enforce its rights to protect it, to get damages for its remediation, and to hold accountable those that seek to abuse it. Certainly, the usual barrier of the right to pursue a matter in court by a non-governmental organisation (NGO) on behalf of nature will be resolved.
Rights to nature are yet to be enshrined in Scottish law. Scotland is progressive in setting ambitious targets in its climate change action plans. However, it is also important to have laws in place to recognise and accord the rights of nature. The process will certainly need to be accelerated as time is certainly not on our side. Perhaps, if Scotland were to attain independence, it could commit to follow Ecuador’s example and enshrine rights to nature in a written constitution.
ERCS, with its mission to advocate for policy and law reform, can be a voice for nature. But how? It can do so by ‘pushing’ relevant governmental departments for policy change and law reform, and by garnering public support through provision of advice and information.
Perhaps, in addition to lobbying for change, a tactical launching of a PIL case that deals with environmental protection and the rights of nature can be considered? After all, as noted by the lawyer acting in Colorado River v State of California, “[f]or a lawsuit to succeed in securing personhood status for nature, public pressure must increase and a light must be shined on the courts to expand the definition of rights. We must pack the courthouses so judges can see for themselves that there is a real-world consequence to denying this movement”.
Meet Kaur is a senior advocate & solicitor (Singapore) with a keen interest in international environmental law, climate change law, international investment law & sustainable development. She was in private practice for many years and also served as General Counsel to the Building & Construction Authority of Singapore for 12 years. She is committed to supporting governments, NGOs and companies in environmental and climate change policies to expedite equitable and sustainable development.
 For example, the decision of the High Court of Uttarakhand in Northern India granting rights to the Ganges and Yamuna Rivers (Mohd. Salim v. State of Uttarakhand, Writ Petition (PIL) No. 126 of 2014, High Court of Uttarakhand), which was overturned subsequently by the Indian Supreme Court (Special Leave to Appeal (C) No(s). 016879/2017 The State of Uttarakhand and Ors. Versus Mohd. Salim and Ors., Order dated 7 July 2017.
 Christopher D Stone Should Trees Have Standing? Towards Legal Rights for Natural Objects (1972) 45 South California Law Review, 450.
 405 U.S. 727 (1972).
 Cormac Cullinan, Wild Law: A Manifesto for Earth Justice (2nd edition, Green Books 2011).
 see n 1 above.
 Te Awa Tupua (Whanganui River Claims Settlement) Act 2017.
 Sophie Yeo Ecocide: Should killing nature be a crime? (BBC Future Planet, 6th November 2020) <accessed 8 November 2020> and see the Stop Ecocide website for further information.
 ICC, Office of the Prosecutor, Policy Paper on Case Selection and Prioritisation, 15 September 2016 <accessed 12 November 2020>.
 Complaint for Declaratory Relief, Colorado River Ecosystem v. Colorado, No 1:17-CV-02316-NYW (D. Col. September 25, 2017), 2017 WL 4284548.
 Randall S Abate, Climate Change and the Voiceless (Cambridge University Press 2020) 123-124- interview conducted by the author with Jason Flores-Williams, Lead Attorney, The Law Office of Jason Flores-Williams, (September 19, 2018).