By Eva Bernet Kempers
Rights of nature are on the rise. After their recognition in Ecuador, Bolivia, New Zealand, Uganda, and India, the most recent recognition of nature’s rights took place in Spain. In 2022, the Mar Menor was recognized as a legal person, which possesses legal rights, and can be represented in court. Rights of nature represent a new phase in environmental protection, and, according to Jasper Mührel, the latest recognition signifies the dawn of a European approach to rights of nature.
Until now, animal law scholars have remained fairly sceptical about this development. Visa Kurki, for instance, argued that rivers and natural objects, in fact, cannot really ‘be’ legal persons in any meaningful way, contrary to sentient beings such as animals. Others have pointed to the dangers of the rights of nature-paradigm, as they fear that animal rights will be reduced to rights of species, falling victim to ‘environmental fascism’ when individual animals are sacrificed for the greater good. At the same time, however, some proponents of rights of nature assume that rights of nature automatically include animal rights, regarding the two as allies in the fight against anthropocentrism.
This blogpost is an effort to clarify the debate on the relation between rights of nature and animal rights. It answers a seemingly straightforward question: do rights of nature include animal rights? I will put forward the argument that, despite of the philosophical animosity between the two paradigms, there is room for juridical amicability. I will suggest to see rights of nature as a layered concept with three dimensions: holistic, systemic, and individualistic. Albeit with a caution for the naturalization of rights, in this way the two perspectives can be reconciled.
Rights of nature and animal rights are rooted in two opposite ethical paradigms. Nature’s rights are embedded in an environmental, ecocentric paradigm, regarding nature as a system that has inherent value as a whole. Animal rights, in contrast, accords inherent value to individual sentient beings (whatever their species). It disregards the relevance of ‘species’ as an abstract concept to which no moral obligations can be owed.
From the perspective of animal rights scholars such as Tom Regan, the environmental paradigm is dangerously similar to a form of fascism, as individual (non-native) animals are easily sacrificed for the greater good. It holds that it is never legitimate to kill sentient individuals in order to save a species, as a ‘species’ has no interests that can give rise to rights. From the environmental perspective, on the other hand, this way of thinking demonstrates a laughable naiveté. Ecosystems are complicated and sensitive systems, and a small disturbance can endanger not just the individuals of one, but of many species: culling animals is crucial to safeguard the stability of the ecosystem as a whole.
Rights of nature is historically closely associated with the environmental perspective. It frames itself as a movement of environmental protection, aiming to contribute to the restoration of the earth’s ecosystems. Granting nature legal rights is regarded a means through which to improve the current (failing) efforts to halt environmental degradation. Based on its ethical underpinnings, one would therefore expect an animosity towards individual animal rights, favouring the systemic approach, thus answering the question whether rights of nature include animal rights in the negative.
Legal reality, however, does not always reflect philosophical theory. When we look at the way in which holistic forms of rights of nature have been interpreted by courts in Ecuador and Bolivia, a very different picture appears. Rights of nature seem to include not only rights of ecosystems, and of mangroves, but also of rivers, species, and individual animals. In fact, the protection of species is interpreted as automatically leading to the protection of the individual animals of which a species is comprised. Hence, in Ecuador, killing any specimen of an endangered species constitutes a rights of nature violation.
How exactly courts have turned the ethical animosity into a question of juridical amicability, becomes clear in, firstly, the Wild Parrot case in Brazil, and secondly the case of Estrellita in Ecuador. The Wild Parrot case appeared in 2019 before the Supreme Court of Justice. Considering the illegal capture of a wild parrot, the Court stated that “in the face of the current ecological crisis, it is necessary to rethink the Kantian concept of dignity” in light of the ecocentric jurisprudential matrix that is “capable of recognizing the web of life that permeates the relationship between human beings and nature”. According to the court, this entails the recognition of an intrinsic value conferred to non-human sentient beings, which share with the human being the same moral community, meaning that “any prohibition of the practice of ‘objectification’ should not, in principle, be limited only to human life, but should have its spectrum broadened to contemplate other forms of life as well”, thus “making a step beyond pure anthropocentrism”. This then translates in the need “to recognize the environment and non-human animals as beings of their own value, deserving, therefore, respect and care, so that the legal system can assign them rights and dignity.” Interestingly, the Court does not seem to be aware of any animosity between the environmental perspective and animal rights, mentioning “the environment and non-human animals” in one breath, as both deserving legal rights, without attaching any consequences to this recognition.
A second informative case is the verdict on the monkey Estrellita, which was decided by the Constitutional Court of Ecuador in 2022. The court firstly made clear that “[w]ithin the levels of ecological organization, an animal is a basic unit of ecological organization, and being an element of Nature, it is protected by the rights of Nature and enjoys an inherent individual value.” Discussing several trends in the legal protection of animals, the Court subsequently noted that the recognition of animals as subjects of rights constitutes the most recent phase in the development of their legal protection. It emphasized that “[i]n this sense, this Court warns that animals should not be protected only from an ecosystemic perspective or with a view to the needs of human beings, but mainly from a perspective that focuses on their individuality and intrinsic value.” However, it hastened to say, insofar as human beings are omnivorous by nature, their right to feed on other animals cannot be forbidden. It also noted that the recognition of animal rights would not stop the necessary actions to control species populations, especially with regard to non-native species. Just as in the Wild Parrot case, then, the recognition of animal rights remains without further consequences.
Interestingly, in both judgments, no conflict between nature’s rights and animal rights was observed. On the contrary, animal rights were considered as an inherent and inevitable aspect of rights of nature; an automatic implication thereof. The philosophical animosity is, through judicial interpretation, turned into amicability: rights of nature and animal rights are perceived as two sides of the same coin. Rights of nature are then understood as a paradigm-shift to a non-anthropocentric understanding of law.
Rights of nature as a three-dimensional concept
In order to make sense of the way in which courts have given shape to rights of nature as including individual animal rights, I propose to regard rights of nature as a three-dimensional concept. It encompasses not only the holistic idea of ‘nature as a subject of rights’ but also grants rights to the more systemic dimension of ecosystems, species, and collectives (e.g. mangroves or forests) – since nature, essentially, is made up of such collectives – and to the individualistic dimension of entities that are either sentient or non-sentient. The different dimensions are interdependent: individual entities always exist as embedded in larger networks of collectives and ecosystems, which again exist in the context of the planet (or ‘nature’).
FIGURE 1 THREE-DIMENSIONAL CONCEPT OF NATURE’S RIGHTS
To some extent, this scheme can also be of help in the balancing of different rights against each other. Even though we may attach more weight to animal rights than to plant rights, such rights should always be understood in their context, e.g. with reference to the other dimensions, such as the status of the species or ecosystem in which they reside. Hence, the rights of an endangered specimen may then be found to weigh more than the rights of a non-native specimen that poses risks to the systemic dimension of nature. In the same way, the three-dimensional understanding of nature’s rights would imply an inherent limit to human rights, stemming from their embeddedness in and interdependence with the systemic and holistic dimension of nature.
Critical note: the naturalization of rights
The three-dimensional concept of nature’s rights poses an attractive schematic overview of the way in which the rights of individual animals fit into the larger rights-of-nature concept. It should be noted however that this portrayal also bears the risk of ‘naturalizing’ rights.
What I mean with this is the following. The very purpose of moral and legal rights is to go against the state of nature; to protect the weak and vulnerable from the strong and powerful. To have a right, means having a claim to someone not doing something to you that he or she would be capable of. This is precisely why the movement of animal rights strives to have the rights of animals recognized: to protect them from human exploitation.
The way in which animal rights have been interpreted in the context of rights of nature, however, is not as ‘defying’ nature, but rather as confirming the natural state. Even though both courts make extensive references to animals’ ‘intrinsic value’, this recognition is not understood as implying any radical changes in human behaviour. In both jurisdictions, animals are still eaten and can still be killed in order to safeguard the balance of an ecosystem. The question is, therefore, whether rights understood as such hold any transformative force.
Rights of nature can include the rights of individual animals. Even though the concepts are historically rooted in opposite ethical paradigms, they can be reconciled through legal interpretation, as the Wild Parrot case and Estrellita case have shown. My proposal to regard rights of nature as a three-dimensional concept, that encompasses both the rights of humans and other animals, best explains such legal interpretation. In this way, animal rights are, just as human rights, conceptualized as dependent on the larger web of relations of which they are part.
But should animal law scholars support the inclusion of animal rights in the rights of nature paradigm? I have noted the danger of the naturalization of rights as reproducing, rather than defying, the natural state. This would eventually erode the very purpose of rights as protecting the weak and vulnerable from the tyranny of the powerful. If animal rights do not prevent us from killing them for our pleasure (because we can), then why would human rights prevent governments from ruling with brutal force (because they can)?
Still, I am carefully optimistic about a possible alliance between the two. In the end, both rights of nature and animal rights have a common enemy: legal anthropocentrism. If rights of nature manages to push the human off its pedestal, it will also be a win for animal rights, bringing us a step closer to a just and sustainable multispecies pluriverse.