Could a Forest Be the Subject of Rights?

Ponderosa pine forest, 1930’s | U.S. Forest Service- Pacific Northwest Region | Public domain

Can a valley have legal personality? Can a mountain hold a right to existence, one that could be invoked before a court of law? One’s immediate response would be no – how can something that is not human be the subject of rights? But the technical response is yes – just as legal personality is conferred to a company, a ship or an investment fund, it may also be held by an ecosystem, provided the requirements are met. The political response is that natural entities not only can, but should have legal agency if we want to equip ourselves with tools commensurate with the problems we face. This is the position of those who defend the “rights of nature,” a slippery expression but one which, precisely because of its vagueness and perhaps because no one is fully satisfied with it, can embrace different political traditions that are now being forced to understand each other. What follows is a brief roadmap for helping us find our way through this phenomenon – heterogeneous, conceptually innovative, sometimes speculative yet strategic – which is committed to the idea that ecosystems have agency and that this must be translated into legal terms.

Notes on a failure

The rights of nature do not contradict the current legal framework, but they do stand in a very disadvantaged position, which the philosopher Teresa Vicente summed up when she appeared before Spain’s Congress of Deputies to defend the legal personality of the Mar Menor lagoon: [1] “Environmental law has failed […]. Its ineffectiveness is blatant, both in the case of the Mar Menor and in that of other ecosystems.” This is the same conclusion reached by the United Nations: “Current environmental laws […] are ineffective based on the conceptual underpinning: such laws, including an endangered species listing system that cannot keep pace with current extinction rates; after-the-fact litigation that relies on proving individual loss with no obligation to restore ecosystems as systems; and an inability to bring cases on behalf of the injured environment (as opposed to on behalf of human beings alone) […] work by breaking ecosystems into separate parts, which is inconsistent with the fact that they are entwined and interdependent.” [2]

A river is more than just a fishing ground, an energy source or an attractive landscape. It is a living entity that irrigates a territory and interconnects all the elements on its path – mountains, streams, wetlands, migratory routes, pollinators, fields of crops, mineral reserves and human populations. And yet, in the eyes of the law, it is no more than the sum of each of these isolated elements. Consequently, the existing mechanisms for legal protection – whether they be biosphere reserves, natural parks or the Natura 2000 Network – do nothing to prevent the development of extractive activities.

It is also for this reason that environmental legislation is often only applied to defending property rights, as it otherwise becomes mired in processes where it is difficult to provide conclusive evidence, such as when trying to demonstrate harm to health. The “right to a healthy environment” exists, but it falls under the category of third-generation rights: diffuse, collective and not invocable in court. Another consequence of this fragmented approach is that damages are settled with economic penalties rather than restorative measures. This is why a company might end up paying multimillion dollar compensation for the destruction of an ecosystem, which is basically the same as paying for the right to destroy it. Unlike in any other area, ecocide is accepted as the norm, while prohibition or limitation is the exception.

A new wave of rights

The rights of nature respond to this situation by strengthening the effectiveness of rules and procedures, although this manifests in different ways. Sometimes in sentences that recognise the legal personality of a valley or a mangrove; others, in the form of general declarations included in constitutional texts, for example in Ecuador or Bolivia. In some cases, there are laws for colonial reparation, such as in New Zealand, or for the protection of specific areas, such as the Mar Menor. There are instances of soft law, such as United Nations declarations, or academic contributions like those by lawyer Christopher Stone, the first to develop a theory of legal standing for natural entities. At other times, the rights of nature are invoked in courts with informal jurisdiction, such as the International Rights of Nature Tribunal, an institution with no power to prosecute but with symbolic capital and impact on public opinion. For a summary of cases from around the world involving the recognition of the rights of nature, see the catalogue of the CCCB exhibition Science Friction. Living Among Companion Species (2021).

Despite this heterogeneity, some common threads emerge. Firstly, the rights of nature recognise the intrinsic worth of an ecosystem, regardless of its value to human beings. The Mar Menor lagoon is not protected for agriculture or tourism, nor for its unique landscape, but because it must be allowed to exist on its own and to evolve in accordance with its intrinsic balance. Secondly, the fact of possessing a right guarantees access to justice – which, in the case of natural entities, is achieved through representation – in such a way that the guardians or trustees can invoke it in court. This logic applies to all the non-human legal persons that have proliferated since the Middle Ages – the first being the Church – and includes companies, associations, institutions and governments. The mechanism, an exercise in “legal fiction,” serves to defend entities that are considered to have value, since their legal personality endows them with social existence and an effective legal framework. Thirdly, the rights of nature demand that restoration or remediation be addressed not to the human community linked to the damaged environment, but the environment itself. And finally, they apply to ecosystems as a whole rather than specific individuals, thus distinguishing them from animal rights, which are based on the condition of animals as sentient beings and their right to wellbeing and freedom from captivity, as per the habeas corpus which prohibits arrest without just cause. Animal rights, like human rights, protect the individual, but not their habitat.

The agency of others

This collective dimension is crucial. The recognition of legal personality for natural systems does not undermine but rather reinforces environmental justice, which insists on the fact that ecological conflicts are always social conflicts. If we look at the map of ecocides around the world, we will see that it perfectly aligns with the map of the main rights violations of any kind. This shows that the supposed opposition between human rights and the rights of nature is a false dilemma. In today’s world, defending justice – including justice centred around human needs – requires us to understand this structural relationship and confront it with the appropriate tools.

Proof of this is the fact that the strongest impetus for the rights of nature comes from countries with a colonial history. Ecuador and Bolivia have enshrined such rights in their constitutions, using terms taken from their own cosmologies such as sumak kawsay – an Andean concept often translated as “good living,” although it encompasses much more. In Colombia, the Supreme Court has granted legal personhood to the Amazon as a whole, as well as to the Cauca, Quindío, Pance and Otún river basins. In India, the High Court of Uttarakhand has done the same for the Ganges River and two Himalayan glaciers. In these cases, the natural systems are also sacred places, divinities or suprahuman figures engrained in the local peoples’ vision of the world. But they are also damaged, often irreversibly so, and carry wounds – both environmental and human – that need to be healed. The conferral of legal personality not only enables concrete measures for their defence but also affirms their political importance.

Because they challenge our engrained cultural patterns, the rights of nature are invaluable companions on the path towards conceiving governance beyond the Eurocentric mental framework. In many ways, resistance to these rights is a reflection of the deep colonial bias of our imagination. Opening the door to agency – not just of non-human life forms, but of entities that cannot even be defined as individuals, including elements such as stone, water or wind – does not only suggest a justice system that extends beyond the human sphere, it suggests justice beyond even the organic. Paradoxically, however, this shift in our window of understanding is also part of a continuum. What is emerging today in the fields of environmental humanities and multispecies rights is the result of an intellectual climate forged over decades through the impetus of environmentalism, with antecedents such as Aldo Leopold’s biotic community, Arne Naess’ deep ecology, Thomas Berry’s earth jurisprudence, Michel Serres’ natural contract and the legal animism of lawyer Marie-Angèle Hermitte.

Hermitte was one of the experts who helped to draft the 1992 Convention on Biological Diversity. As recounted by Camille de Toledo in “Un soulèvement légal terrestre” in Les Droits de la Nature (Le Pommier, 2022), when she defended the notion of “legal animism” before the committee of experts – linking it to the need for natural entities to appear before the law in their own name, as true subjects of law – the representative of the OECD replied: “We’ll talk about that in 2,500 years’ time.” Today, we know we cannot wait that long.