Since the 2000s, there has been a growing recognition of the rights of nature at the domestic level. One of the most recent examples is the recognition of legal personhood to the St. Lawrence river by the National Assembly of Québec in 2022. While the national examples on the rights of nature are increasing in number, the legal developments are still scant at the international level. Domestic laws and jurisdictions are pushing to transform nature from an "object" of regulation to an actor in itself with its own voice in the international scene. This increasing national practice has influenced the emergence of a new approach in international environmental law to protect nature in its own right.

The recognition of the rights of nature is rooted in a transformative shift in the philosophical paradigm that governs the relationship between humans and nature. It requires a change in the comprehension of international environmental law, moving beyond the anthropocentric focus that puts human beings at the center of its protective regime. A question arises if the treaties and customary norms of international environmental law are sufficient to protect the rights of nature or if it is necessary to rethink these frameworks.

In this paper, I examined the main features of the rights of nature in various domestic jurisdictions and their impacts on international environmental law and I argue the need for synergies between the rights of nature and the right to nature.

The domestic practice on the rights of nature and its impact on international environmental law

The transnational movement on the rights of nature is gaining momentum. Several jurisdictions have recognized the rights of nature, including Ecuador, Colombia, Bangladesh, India, Uganda and New Zealand. The analysis of the national practice shows three dimensions of the rights of nature : 1) the attribution of the legal personhood to the elements of nature (i.e., rivers, glaciers and national parks) ; 2) the establishment of "guardians" to safeguard the elements of nature and ; 3) the standing of nature before national courts. These three features are common in legislation and decisions of courts addressing the rights of nature.

Main features and aims of the rights of nature

Given the unprecedented environmental crisis, scholars in international environmental law increasingly questioned the ability of humans to respond to the continuing deterioration of the ecosystems. Some scholars have, in fact, argued that the current anthropocentric approach of environmental law "has failed to keep humanity from crossing critical planetary boundaries" and they affirmed that new legal approaches are necessary to address the current ecological situation. The recognition of rights to natural entities such as rivers, glaciers, mountains or forests represents a new approach to address the current ecological situation.

Traditional legal approaches based on inter-governmental negotiations illustrate difficulties to integrate the concept of the rights of nature. In fact, at the domestic level, this legal development has often been led by non-state actors such as indigenous peoples. Although these groups have specific cultural traditions, a common feature has been the emphasis on the close linkages and interconnection between humans and nature. In indigenous customary laws and traditions, nature is not viewed as a property or as a service provided to humans, on the contrary, nature is considered as a living entity with its own rights and deserving of respect.

The implications of legal personhood to nature and possible tensions with international environmental law

Several questions have been raised concerning the practical implications of recognizing the legal personhood of nature. First, identifying the guardians or stewards representing nature can be challenging. Second, there might be a lack of appropriate funding to enforce domestic legislation or a judgement granting legal personhood to the elements of nature. Often, the local actors responsible for implementing the judgements or the legislation may lack technical or financial capacity. Third, a form of independence between the government and the guardians of nature may be necessary to ensure the full enforcement of the legal rights.

The analysis of the rights of nature also raises the question of a possible tension between the interests of nature and the interests of society. In this context, it is worthwhile to note that the 2010 Bolivian Law states that "the interests of society, within the framework of the rights of Mother Earth, prevail in all human activities and over any acquired right" (Article 2). Is there a potential tension between this principle and the other eco-centric provisions of this instrument ? A general approach based on international environmental law, in particular, the principle of sustainable development which includes economic, social and environmental dimensions, may help to resolve these tensions. Putting Mother Earth at the center of international environmental law might help to ensure a more balanced approach to sustainable development based on the respect of nature and a protection of the rights of future generations.

One of the most important challenges in the implementation of the rights of nature at the international and domestic levels is the potential tension between the rights of nature, the rights of property and sovereign rights of States. The rights of nature can collide with national economic development priorities. It could be argued the need to place new duties on property owners and to limit the sovereign rights in the use of natural resources. These obligations would aim to limit the use of natural resources so that ecological integrity is not compromised. Here again, the rights of nature would need to be considered as part of the principle of sustainable development. Under this perspective, it is necessary to find a balance between the rights of nature of non-humans species and the rights to nature of individuals and communities. The recognition of the rights of nature cannot be unconditional and it is necessary to examine the possible contradictions between the rights of nature, the economic interests of a State and the socio-economic needs of local communities. International environmental law does not offer straightforward solutions to such complex issues. The reading of the principles of international environmental law should consider the domestic and local initiatives, including those from civil society and citizens.

The role of the custodians of the rights of nature

The legal representation of the elements of nature is often entrusted to local indigenous communities since they are considered as the most suitable stewards for their close and sustainable relations with nature. For example, among the Native American tribal jurisdictions which have enacted rights of nature, the Nez Perce General Council passed a resolution recognizing the rights of the Snake River in 2020. The resolution also establishes a legal guardianship body to represent the rights and interests of the Snake River and requests the Tribe's Executive Committee to act in accordance with the resolution.

In the 2017 decision Lalit Miglani v. State of Uttarakhand & others case (the Glaciers case), the court appointed several guardians, including the Chief Secretary of the State of Uttarakhand and a range of legal advisors, academics and judges to act as "the persons in loco parentis as the human face to protect, conserve and preserve all the Glaciers including Gangotri & Yamunotri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests wetlands, grasslands, springs and waterfalls in the State of Uttarakhand". In a neighboring country of India, the Supreme Court of Bangladesh granted legal rights to all the rivers of the country and appointed Bangladesh's National River Conservation Commission, a government agency, as the person "in loco parentis". The decision of Bangladesh takes therefore a similar approach to India. However, the Supreme Appellate Division of Bangladesh (Bangladesh's highest court) upheld the 2019 decision in February 2020.

The domestic practice of India and Bangladesh is particularly challenging. The transboundary nature of rivers makes enforcement of the domestic rulings difficult. In both cases, transboundary cooperation is vital in the implementation of the rights of nature. For instance, the Ganges is declared a living entity in Bangladesh but not in India. However, almost 90% of the course of the Ganges lies in Indian territory. The Treaty between India and Bangladesh on the sharing of the Ganges Waters at Farakka of 1996 provides that the agreement will remain in force until 2026 (Art. 12). The current text of the agreement does not include the rights of nature. A treaty revision could offer the two countries an opportunity to include such rights.

The rights of nature often have a strong local dimension. Municipalities may recognize these rights. For example, in Canada, the guardians of Magpie river (or Mutehekau Shipu river) are appointed by the municipality of Magpie and the Council of the Innu of Ekuanitshit, an indigenous community (Resolution n° 025-21, 2021). Moreover, in the case of New Zealand, the Whanganui River Claims Settlement Act of 2017 establishes that Te Awa Tupua is to be represented by a guardian Te Pou Tupua which "is to be the human face of Te Awa Tupua" and acts in the name of the river and its ecosystem (section 18). The Te Pou Tupua consists of two persons, one appointed by the Iwi, the Maori tribe living in the region of the Whanganui River and one appointed by the government. This office is responsible for the care and well-being of the river and for maintaining relationships with all interested people.

International initiatives on the rights of nature

In parallel to the transnational movement of recognition of the rights of nature, the support for a global recognition of the human right to a healthy environment has grown over the years. Although the human right to a clean, healthy and sustainable environment is recognized in several countries and international treaties, its global recognition has taken a number of years. It was only in October 2021 that the Human Rights Council recognized this right.

The Inter-American Court of Human Rights has contributed to the recognition of this human right. At the request of Colombia, the Court adopted an Advisory Opinion in 2017 affirming the human right to a healthy environment and examined the obligations of States when they have caused or may cause significant environmental harm, including in a transboundary context. The Advisory Opinion includes both an anthropocentric and eco-centric approach. The Inter-American Court affirms that nature has its own rights and should be protected not only because of the benefits they provide to individuals or local communities or the effects that their degradation may have on other human rights, such as health, life or personal integrity but because of its importance to the other living organisms. The Advisory Opinion represents the first case in which an international judicial mechanism points out the linkages between the human right to a healthy environment and the need to protect nature for its own importance dissociated from the benefits provided to humans.

Following the Advisory Opinion, the Inter-American Court of Human Rights recognized the human right to a healthy environment in the Comunidades Indígenas Miembros de la Asociación Lhaka Honhat (Nuestra Tierra) v. Argentina case, and found a concrete violation of this right in the case (paras. 202-203).

Moreover, a specific UN initiative exists focusing on the "Harmony with Nature" which strongly supports the rights of nature. Since 2011, the UN General Assembly has engaged in several interactive dialogues with UN member States and other relevant stakeholders to commemorate the International Mother Earth Day on the 22nd of April.

Beyond the UN, other organizations such as the International Union for the Conservation of Nature (IUCN) also called for developing a Universal Declaration of the Rights of Nature that contributes to a new philosophy of human well-being (World Conservation Congress, 2012). In 2016, Principle 2 of the World Declaration on the Environmental Rule of Law adopted at the World Environmental Law Congress of IUCN states that : "Each human and other living being has a right to the conservation, protection, and restoration of the health and integrity of ecosystems. Nature has the inherent right to exist, thrive, and evolve."

While it is difficult to argue that the rights of nature have a specific status in international law, regional, domestic and local practices relying on national or municipal regulations as well as courts' rulings are promising practices for the recognition of the rights of nature at the international level. Another promising approach at the international level is related to the analysis of the linkages between sustainable development and the rights of nature. Such rights may support the environmental dimension of sustainable development. In particular, the UN General Assembly has noted that a number of countries recognize the rights of nature in the context of the promotion of sustainable development. The UN General Assembly also pointed out that, to achieve a just balance among the economic, social and environmental needs of present and future generations, it is necessary to promote harmony with nature based on the recognition of the rights of nature.

Conclusion

Tensions between the rights of nature and right to nature could exists in some circumstances. The Supreme Court of Bangladesh has granted legal rights to all the rivers of the country. This decision has drawn criticism for its impact on the rights of fragile communities many of whom live in insecure housing on river floodplains. The court implemented high penalties, including eviction from river land. While these penalties have been imposed in an attempt to strengthen the rule of law, they have heavily affected poor people living in the surrounding area of rivers. These penalties could end up exacerbating existing inequality in the society of Bangladesh. This situation is similar to the Indian cases, but starkly different to the approach adopted in Colombia. In this last case the rights of nature, in particular rivers, have been recognized as a mechanism for giving effect to right to nature of communities who depend on the river, especially the human right to a healthy environment but also other fundamental human rights such as the biocultural rights. Attention must be paid to the fact that the rights of nature do not replicate social structures based on inequality. The rights of nature approach has the potential to build or strengthen a set of common values that advance nature conservation and empower local communities through meaningful engagement.