(The article was published in Bulgarian: "Права на природата – насред екологичната есхатология и правната теория?", in journal Sociological Problems, 2016, № 1-2, p. 146-166)

 

Author: Stoyn Stavru, Doctor of Civil and Family law and Doctor of Philosophy

Translation from Bulgarian to English: Svilen Tashev

 

Read it in spanish here or in bulgarian here.

 

With the increase of the ecological problems and most of all with the increase of the adverse to human beings climate changes, the question of nature protection from human impact is (more) often raised. This brings a number of ethical and legal questions, including those with the potential to change the subjective structure of the currently existing law.1 Taking into account/ the state of nature, the proposed “structural changes” in the law could be regarded as “extreme measures” required by the “desperate situation” in which we have put ourselves.

 

1. Brief review of the facts

After the breakthrough in 2008, when Ecuador became the first country with a constitution recognizing rights of nature2, and after the adoption of the December 7th, 2010 Bolivian Law on the Rights of Mother Earth (Law of Mother's Earth Rights3), which recognizes 7 basic rights in favor of nature, including the right to life, the right to diversify, the right to water, etc., the question for the rights of nature was also raised in Europe. A Draft-Directive on (protection of) the rights of nature is prepared4 which aims at proposing a new legal framework for the European ecological legislations. A system of material and procedural rights of nature is proposed. According to art. 4, p.1 of the Draft-Directive nature, which includes, but is not limited to earth, ecosystems, natural communities, species and the atmospheric climate, has a legal personhood (is a subject of law). The Draft-Directive recognizes the basic rights of nature arising from "its inherent dignity as the source of life". It is stated that the protection of the remaining part of nature can only be achieved if we transcend from a legal framework that protects nature post-factum (through various administrative mechanisms for appealing of decisions concerning nature) towards proactive legislation, providing nature with legal personhood (civil rights that can be exercised on behalf of and in the interest for nature before the latter being damaged). Piecemeal legal protection is not enough – a fact that is evidenced by the state of nature decades after the adoption of the existing environmental legislation.

If we recognize priority of nature over economy: “After all, which came first, life or the economy?” asks Mumta Ito5, therefore we should give nature the greatest protection that law can offer – the rights and legal personality. This protection has already been given to the economy by recognizing the legal personality of corporations – companies are rights holders and the legal nature of their "persons" (they are termed "legal persons" as opposed to people as "individuals") does not raise any objections against their personality6. It is entirely possible for nature and its components to also receive "legal person" (legal personhood) and as such to enable effective protection of an interest (interest of life), which if not of greater value, it is in any event equivalent to economic (interest of economy).

In the next part of the article I will try to present a conceptual analysis-comparison of possible legal approaches to nature protection.

 

2. Particularistic and holistic model – juxtaposition

There are two legal approaches in pursuing the protection of nature" – particularistic and holistic. For reader’s convenience I prefer presenting them in the form of a table where the characteristics of both models can be traced in parallel (Table № 1).

 

Table № 1 “Legal models of personality”

 

Particularistic approach

Holistic approach

Nature is resource

(means, capital, satisfier of interest)

Nature is partner

(Intrinsic value, agent, holder of interest)

 

 

Legal status of nature:

object of law (thing)

Legal status of nature:

Subject of law (legal entity)

 

 

Feature of this approach:

– Monism of legal personality:

human being is emancipated as an exclusive rights

holder (the rights holder or subject is defined in its

capacity as an user of nature, most intense right of

which is the right to property);

Features of this approach:

Pluralism of legal personality:

it integrates all components of nature into the legal

personality (the rights holder or the subject

is defined in its capacity to be a part of the

whole, which can only exist as a whole);

Priority of will:

A subject of law self-defines itself through

its ability to form and express will.

Will is a human typical characteristic,

the absence of which in a certain category

of people – minors and mentally disabled,

it breaks the concept of legal personality

down to two new concepts: legal capacity

and legal capability. The legal capacity is

(plays the role of) a surrogate ("lifebelt")

for legal personality where people cannot

form and express their will. The aim is

to withhold the will and interest in one

holder, which is presented as the essence

of a legal personality and the absence of

will in other components of nature

disqualify them as rights holders.

Putting priority onto will requires

mandatory correlation between

rights and obligations as inseparable

attributes of the legal person (subject):

once you have rights, you have to bear

obligations, as well7;

Priority of interest:

Legal subjects define each other through

their common interest of existence,

which is only possible as a whole within

a self-sustaining system (web of life8).

It is of people’s interest that the protection

of nature, part of which is human kind,

to be effective, but this requires, if not

equal at least adequately balancing the interests

of individual components of the system.

In this concept interest is "exempted" from

the will and there is no need for a common

emancipated holder (as for human individuals).

Therefore, the interest of a component of nature

(species, ecosystem) can be recognized and

respected by the will of another component

(people). This recognition is part of the

interactions in the system. The priority of

interest exempts the rights from obligations

by allowing empowerment with rights without

necessarily the subject to be bound with

(the assignment of) duties and responsibilities;

– protection of nature through human rights:

Since individual components of nature,

except for human beings, are subject to the

law (most often objects of ownership),

their protection goes through:

A) individual interest of their owner

(to satisfy his/her own needs). The owner

determines whether and how to preserve them,

respectively – to protect them from damage and

destruction;

B) cumulative interest of the people

(to survive and can live in full). For people to exist,

nature conservation is necessary as a whole,

which requires: i) the formation of some "key"

assets in a mode of public property,

managed in the interest of the community

(those can be owned only by the state and

municipalities)

or as protected areas and territories

(the latter can be both public and private property,

but in both cases they are characterized as

extremely restrictive regimes of ownership);

ii) the imposition of a system of legal

restrictions on private property (prohibitions

on certain activities related to management

and disposition of assets). Typical examples

are the prohibition on dumping of waste at

unauthorized places for this as well as

the prohibition of cruel and degrading

treatment of animals. These prohibitions

restrict the right of the owner to freely operate

his/her own property;

nature protection through its own rights:

Since individual components of nature cannot

exist separately (but only in interaction,

in its entirety9), their protection requires:

A) Recognition (distinguish) of legally

significant interest not only for people but

also for the benefit of those key components

of nature which enable its dynamic existence,

and these key components of nature are:

i) ecosystems as a combination of non-organic

and biological components (forests, rivers,

mountains, lakes, oceans10) and ii) species

as a group of organisms with the same genotype

(a certain type of plants, animals).

The advantage of this approach compared

with the concept of animals’ rights is that

legal personality is "evacuated" to a higher

level that allows killing of individual

specimens of the respective species11

(of course – such a killing is subject to

certain conditions and cam be done under

certain requirements), and in the same time

prevents the extermination and extinction

of the species as a whole12;

B) balancing the interests of people

(as individuals and as communities)

with the interests of their corporations, on

one hand, and the interests of nature (as distinct

ecosystems and in general) with the

interests of its non-human manifestations,

on the other hand, by providing both sides

with the benefit of the most powerful tool

at law disposal – rights;

complementary concept of the rights of

corporations: apart from people

(as physical individuals)

as legal subjects are also recognized what

the former have established in the

form of social formations (as legal entities).

The majority of these entities are

corporations that pursue economic

objectives (profit), including at the expense

of nature. Nature is a resource that can be

used to fill in the revenue part of the

budget of corporations. Legal non-profit

entities are secondary in terms of significance

and impact capability (of a social

formations kind). They could be of private

or public interest. In both cases,

it is all about human "interest".

In all social formations, by definition,

human interest is pivotal.

This particularism embedded in

the base of their legal personality

makes ineffective any ideas for

"green economy" and "environmental

organizations". The essence of these

social formations by definition is insufficient

to allow them to claim and adequately

protect the interests of nature.

Therefore the interest of corporations

(merchants) take precedence even when

they are camouflaged behind a certain

"environmental" ideology;

complementary concept for the rights of animals:

Apart from people (as physical individuals) as legal

subjects are recognized also: i) nature and its

key system components (ecosystems and species)

that we could designate as natural formations

(as legal entities); and ii) individual animals,

where taking into account their ability to perceive

the world and adapt their behavior accordingly,

should be recognized as holders of various

volumes of rights (as individuals).

If people are "human" individuals (human

persons), then other species are termed

"nonhuman" individuals (nonhuman persons),

i.e. they get defined as a type

of legal entities through their non-association/

non-membership to the human species.

The increasing awareness of the right

to recognize such "nonhuman" individuals

(e.g. case study of orangutan

Sandra from late 201413)

would give them more accurate and positive

characterizing names. Unlike human legal

personality, which is homogeneous

(almost the same for all people) animal legal

personality is heterogeneous in content –

it may provide various amounts of

potencies and rights for various individuals;

 

 

Difficulties with this approach:

Difficulties with this approach:

– Exponential increase of environmental problems

(gradual changes and crisis situations)

due to inability to propose a countermeasure,

opposing the underlying aim of corporations

for realization of ever greater profits.

Disregarding the consistency of

environmental problems makes it impossible

for countering them within a legal system.

The current legal systems have proven to

be too fragmented to ensure the protection

of nature as a single system. The range of

legal systems is considerably more limited

geographicaly than the scope of nature in

general. Therefore all measures to

protect nature by means of legal prohibitions

may produce their effect only within

the geographical limits of those

jurisdictions. Even if they manage to impose

restrictions on their own legal subjects,

legal systems are helpless in neighboring

countries, where another legislation is

applicable. However, attempts for international

cooperation have been easily averted by

transnational corporate interests that pass over

national borders much easier compared to legal

prohibitions which always remain "local" for

the respective jurisdictions;

Problem with the estimate in defining the

key components of nature: preparation of separate

procedures on defining natural formations

with the status of legal entities is required.

The legal personhood of nature can be

designated in general as it is in the constitution

of Ecuador (turns out not so effective as

there are no subsequent acts that develop

this personhood into an effective tool

for protecting nature against abuse)

or can be the result of internal agreements

and acts of establishment for the respective

subject based on which the legal personhood

arises (for example such is the case of

River Wanganui in New Zealand "contracted"

and established as a legal entity. This happens

in two stages: at the first stage an agreement

was reached between the local population

Maori known as Iwi and the Crown of New

Zealand for the recognition of legal personality

of the river Whanganui as a whole, i.e. As

a combination of organic and non-organic

components; at the second phase rules are

adopted to identify and express the interests

of this new entity as well as means of establishing

and maintaining relations with other legal entities);

growing disappointment with the lack of

respect for animals’ rights is evident through

various social movements as vegetarianism,

activities for protection of animals’ rights,

ecological terrorism, etc.

The strengthening of socially engaged

vegetarianism and continuous inventing

of various social practices against mass

breeding of animals for food by corporations,

prompts the existence of deficiencies in

the legal protection of animals as biologically

close to us beings with whom we share

a similar physicality (biologocal body)14

and evolutionary destiny. Uncompromising

division between subjects and objects and

turning the possible overlap between them

into borders without border areas leaves

humanity with a feeling of double standards,

hypocrisy, a positive legal selfishness

of particularism and shortsightedness.

problem with the specific criteria for

"nonhuman" legal personality of specific

animals: preparation of a system of criteria

based on which a case-by-case assessment

to be made is required. A major component

of such an assessment should be the cognitive

capabilities of a particular animal which

enable it to some (deemed relevant) degree

to realize what is happening to it and to

feel pain in unfavorable for itself impact.

Self-awareness and declarative identity,

and the ability to completely control the

will should not be determinative, moreover,

recent research in neuroscience seriously

question the existence of these capabilities

even in humans;

 

3. Aligning the modes of personhood and property

One of the main objections against the legal personality of nature is associated with the ability to align modes of personhood with property and the fear for the future of property. I will particularly take notice of this issue, since globally there is considerable resolution experience – in the drafting of the agreement Tutohu Whakatupua (this is the name of the agreement, which indicates the commitment of the parties in regards the respect of the Iwi people for Whanganui River, located in the North island of New Zealand15), signed between the Crown of New Zealand and the local people Whanganui Iwi. The activities taken for the preparation of this agreement, were initiated in 1994, and it was signed on 30th August, 2012. This agreement recognizes the existence of a new legal entity – Te Awa Tupua. Te Awa Tupua is the "legal person" of Whanganui River. ‘Te Awa Tupua’ as opposed to the ‘Whanganui River’ is not a geographical place but the name of a legal subject, which expresses the spiritual aspect of the river and the inner relationship between it and the people. T?tohu Whakatupua formed a fund of tens of millions of dollars and two guardians were appointed to express the will of Te Awa Tupua. These guardians are called Te Pou Tupua, one is appointed by the Crown of New Zealand and the other – by the Whanganui Iwi people. On 5th August, 2014 a second agreement was signed between the same parties – Pupuku Whakatupua, which contains the legal framework for the functioning of Te Ava Tupua as a full-bodied entity. Documents for establishing relationships between Te Ava Tupua and other public entities were prepared, including those at regional level.

The current legal status of Te Ava Tupua shows that empowerment (subjectivation, legal personification) of nature does not necessarily mean inability to be possessed. In T?tohu Whakatupua Te Ava Tupua is defined as "integrated living". It is a legal entity in its entirety – "from the mountains to the sea, including its tributaries, as well as all physical and metaphysical elements." This makes it the longest legal entity in the world – the length of the Whanganui River is 290 km. Although in principle Te Ava Tupua cannot be possessed (it is a subject of law, not a thing), separate parts of the Whanganui River may be subject to property. For example, the main riverbed is held by the Crown of New Zealand, even though on behalf of Te Awa Tupua. Real estates which divide the land around the river remain private property. The property ownership of various parts of the ecosystem existing around the Whanganui River coexists with the legal personality of this ecosystem in its entirety, referred to as Te Awa Tupua. The legal personality of Te Awa Tupua provides for comprehensive regulation of ownership inside, above and below the Whanganui River. After recognition as a legal entity river gets "own voice", instead of just talking about it. The guardians of Te Awa Tupua can protect "in full right" the interests of the ecosystem formed around the river that Maori (Iwi people) spiritualize in their own tribal traditions (including legal), and the Crown of New Zealand recognizes as a legal entity through the agreement T?tohu Whakatupua. Over the relationships of ownership – between humans-subjects-owners (particularistic model) a new layer of relations is built featuring a new entity – Nature (holistic model), which has the same powerful legal tools for impact, as those available for owners: individual rights. Integrating the interests of owners with the interests of the system is part of the holistic model and a decisive guarantee for the stability of the outlined dual-layer model of legal personhood. If we want this legal model to work out, it should respect the interest in property – the interest in property must be aligned with the consistency and unity of the world we live in.

 

4. Exercise of rights

Another important issue to the concept of the rights of nature refers to the manner of their exercise. As we saw in the case of Te Awa Tupua the exercise of its rights is implemented by its guardians – Te Pou Tupua. However, when there is no specific act of founding the ecosystem as a legal entity but a general declaration of the rights of nature, as for example it is in the Constitution of Ecuador, the interest of the natural component will be protected on its behalf by any physical or legal person, or even by the state itself, acting through it's competent authority. Currently the lack of direct personal interest is an obstacle to the admission of appeals against approval of plans: since there is no personal interest in the capacity of an individual legal entity (owner of the affected or adjacent property), one cannot appeal planned public action which may harm the environment. But if nature is recognized as a legal entity on whose behalf anyone could take action in defense of its interests (as defined in Art. 71 para. 2 of the Constitution of Ecuador and Art. 5 pt. 2 of the Draft Directive), then each person will be able to raise litigation. This delegation of the function of relating the interest of nature to all possible entities makes each of the latter a potential initiator of action on defense. In no way this means that the person who first put the question to the relevant competent authority is the exclusive representative of nature. Whether there is a violation of the rights of nature and what are the actions of their compliance shall be decided by the competent authority on the basis of a specific assessment of the facts.

Another possible approach is taken in Bolivia – the existence of the Ombudsman of Mother Earth, protecting and exercising the rights of nature, and representing it in all proceedings, the end result of which could affect the environment.

 

5. Some anthropological observations and the question of theology of the rights

Recognition of rights in favor of nature is often designated as a new paradigm that would have changed the rules of the game. If it comes to game of rights (or game with the rights), the concept of the rights of nature would not have changed the rules of the game, but rather would change (enrich, diversify) the "players" in the game. It would have allowed in the game of rights together with people (as individuals) and corporations (as legal entities) also relatively separate system components of nature (indicated as ecosystems, species, etc.) to participate. Of course, the rights that should be provided for the benefit of nature, will differ from those that are currently recognized for the benefit of physical and legal persons. In this sense, legal personhood granted to nature and its components could not be the same as the one held by other entities. This is revealed in already existing on a comparative basis legislative enumerations of rights of nature.16

"Rights of Nature" should not be seen as yet another generation of rights with different, non-traditional holder (as such foreigners, women, children, disabled, etc.) in the supernova rights explosion taking place in recent centuries, rather they should be recognized as a tool for internal balancing of the law structure in order to achieve a fundamental task – the protection of nature in a condition that is fit for habitation of mankind and human-made civilization.

Rights of nature are part of human’s legislation. They could only be part of the social rules between people. Nature does not need rights provided by people to continue its existence. It will survive after human extinction and is able to transform itself in various ways, many of which probably not only hostile but totally incompatible with the existence of mankind. Nature does not need the rights of people, but people need rights of nature. They need them in order to have effective legal instruments to be used to prevent an eventual environmental disaster that will make the continuation of human civilization impossible. In this sense, the "rights of nature" are "human" rights – rights of human origin and nature, because their purpose is to make dynamic the social relationships between people.17 They achieve this effect by constructing new players (right-holders, legal subjects) in the game of the rights on behalf of whom and in whose interest may be sought fulfillment of certain obligations. The "protection of nature" approach that requires people to refrain from actions that harm the environment is complemented by the concept of "rights of nature" which requires rest of the legal subjects to take certain positive care to keep the consistency and balance that nature has achieved in itself. Thus the principle "no harm to nature" is combined with peculiar requirement in order to achieve "best interest of nature."

At that point one critical question needs to be answered: is it really about "intrinsic value of nature"18 and own "interests of nature"19 when substantiating the concept of rights of nature or rather it is about various systemic forms of interactions with nature that are necessary for the people to continue living on planet Earth20? Is it not that we replace our cynical anthropocentrism with predetermined but remaining in essence (let's call them) anthropofugals – "escapes" from placing the interests of the people (of a particular person as an individual) as a point for centering the law in order to be recreated seemingly independent in "their interest" legal neo-subjects (nature and its components) that are actually carriers of a more abstract and refined human interest – the interests of humanity (of all people in general). At that point a reference could be made to one of the main differences between the concept of rights of nature and the idea of animal rights – if animal rights concern each and every specific animal as an individual and thus take into account its individual and therefore "own" value, then rights of nature, including the rights of each species, conform the necessity of the existence of this species with a view of an "integrated" and common to nature as an interest for the whole system that eventually is constructed in terms of human’s perspective and serves mankind’s survival as a species. The volumes of rights granted to animals as specific individuals depend on their cognitive abilities, especially related to their ability to feel pain – regardless they realize it or are able to declare it.АDefining is what we can call "phenomenological” injury, pain as psychophysical experience. In this sense, the concept of animal rights implies pluralism in the volumes of legal personhood. It becomes a measure of protection, not a stamp for compliance. What is determining is not equality but diversity. On the contrary the volume of the legal personhood of nature is monistic-like since it regards the existence of a single maximum "summarized" subject whose legal personality should be substantially different from the other entities. The content and volume of the rights of nature shall meet the specific objectives of protection, including where such rights are "handed out" to individual system components of nature. In both cases, however, personalities are constructed by people and perform the functions to make the humane legal world dynamic.

In the context of humankind benefit, reformulated in economic terms, nature is declared as creditor of humanity from which we all take resources, but to which we should respond with (to reward) protection (requiring no harm to nature) and empowerment (requiring to empower nature). This economic metaphor where humanity lives on loan from nature, which at some point will be declared bankrupt and all its debtors-users (human and non-human) will lose the source of their life, reveals the stake in the concept of the rights of nature. This stake is the future of people. In this sense, the "credit metaphor" has a second version where the loan is actually taken from future generations who are deprived of their "quota" of nature – a quota which they are entitled with, as it is exhausted prematurely from their ancestors.

Animal rights and the rights of nature could be seen as a kind of intrusion into the rights (law) of mythological subjects from ancient religious concepts and beliefs.21 It is confirmed in the cases when rights of nature are justified as a legal concept with active participation of the local natives and their community beliefs.22 On one hand, through animal rights in the world of legal entities (which is fully "human" world as it is recognizable only by humans) animals are recognized as rights holders and at a certain point it could even benefit the plants. On the other hand, through the rights of nature the deities and spirits of the indigenous peoples enter the world of legal persons as rights holders. They live in specific human mythologies and religious beliefs of the local people and often coincide with systemic natural components that modern science refer to as ecosystems. The biggest "coincidence" takes place when a particular species is deified, turning each member of the species into extremely valuable "divine" subject for local people. Paying respect for the elves in Iceland is considered "an expression of respect of Icelanders towards wildlife"23. The fear of the people "not to destroy the homes of hidden people of the Elves" is an important criterion for the construction of a number of roads in Iceland24 – their trajectory is determined so as not to affect the large stones (such as stone Ófeigskirkja25) and rock formations in which they live: "The greatest human awe is directed towards Elvish churches – massive boulders, often overgrown with moss and vegetation. It all sounds like a funny tale for tourists until one realizes that everyone here, including the Road Administration, comply with it. The Icelandic Agency Road Administration (ICERA) responded to a journalist inquiry on the policy in such cases: "The problems (with Elven stones) are solved with having the construction ceased until the elves move elsewhere"26. Elves-protecting campaigns of “friends of the lava"27 are organized as a kind of environmental and even rights protection activities. Protection of "hidden people" (huldufólk) associate with the protection of nature. This is the moment when the idea of rights of nature is declared as a form of "legal animalism" and "legal spellcraft" (Table № 2).

 

Table 2: “Theology of the rights”

 

 

Demigods and spirits

(religious „persons“)

 

 

Metaphysical components

 

 

Nature protection

(„do not harm

the nature“)

 

NATURE

(ecosystems as systems

of metaphysical and

organic components)

 

Rights of nature

(„provide the

interest of nature“)

 

Organic components

 

 

Animals and plants

(natural „persons“)

 

 

Nowadays, in the secular and areligious world, it turns out that demigods could live as ecosystems.28 The latest infrasubjects (animals and other individual biological forms of existence of nature)29 and supersubjects (deities, spirits and other spiritual and metaphysical creatures) are integrated into the circle of legal subjects in order to be able to survive. Non-humankind enters the legal realm as a rights holder because the “juridicalization” of human relations left no real place for the effective operation of other social rules, including ethical, religious and customary. If we want the infrasubjects and supersubjects in question to continue to be agents in a certain dynamic in human relationships, then we must preserve them precisely as legal entities. Only then, armed with legal rights, they will be able to take part in the games of people who are becoming more obsessed with law and legal rules. And here is the place where the subjects operate as post-religious sediments in law and the rights are burdened with theological functions.

An interesting demonstration of this approach of converting the divine into a legal entity is presented in a law case before the London Court against British Museum.30 The case was about returning a bronze Indian idol (designated as Pathur Nataraja), taken from an Indian temple (referred to as Vishwanathaswamy temple in Pathur). As a plaintiff in this case was the Indian temple itself in its capacity of a building with a certain divine nature.31 The integration of the temple as a legal entity is carried around a sacred stone called Sivalingam, which despite the destruction of the ancient temple continued to exist in the same place as a local religious symbol and a foundation for the future restoration of the temple. Although English law does not recognize as legal entities separate buildings, including such with sacred functions, in principle it allows entities recognized by foreign legislations to be parties to legal proceedings. This principle admission which until this moment had been applicable to legal persons, was used as an argument for the final conclusion of the court that the Indian temple as a building could be a party in court proceedings in England since this temple had been existing as a legal entity recognized by the law of another country. Moreover, the temple (Vishwanathaswamy temple in Pathur) was not only constituted as a party in the proceedings, but also recognized as owner of the bronze idol located in British Museum (Pathur Nataraja), which it is entitled to receive back in India. Although considered very briefly, the example indicates the potential for subjects of law recognized as such in various countries to penetrate legal systems, which generally does not recognize them as rights holders. It shows a peculiar genesis of the legal personality of Indian temples – their nature of religious space consolidated around a sacred object (stone Sivalingam), filled with special meaning and symbolism. It is of interest that the court has recognized as entity due to the foreign Indian law, and therefore – as a side in legal proceedings before English court, not only the religious temple (Vishwanathaswamy temple in Pathur, considered in its entirety, probably as an architectural and metaphysical system) but the very sacred stone (Sivalingam), which brings together the various components of the temple and turns them into a religious and sacred whole.

Although such a "theology of the rights"32 contains in itself an important reminder – the human origin of the "rights of nature", it actually does not disprove neither the need nor the possibility of granting rights to the benefit of nature and its particular components. What states such a reminder is the conditionality of the term "interests of nature" and the need for its specific design as content and limits, and this design would certainly be a task for people. However, a similar conditionality is found in the interests of legal entities, especially corporations, where the law presupposes the existence of a separate "private" for the legal person economic (commercial) and legal interest, which is undoubtedly a human-made construction (legal fiction) – it doesn’t really exist as "interest of the corporation."

The point of recognizing rights for nature is not to investigate and to reveal some autonomous and existing for itself "interest of nature" (such an interest would always be human-made), but to create such components in the law which can rebalance certain disproportions that lead to serious damage to nature not just as a resource but as a necessary living environment for people. In this sense, in my opinion the most important consequence of the recognition of nature as legal entity is its inclusion as a possible participant in various procedures. Rights come with quick and adequate procedures that can be used for conserving the ecological balance necessary for the survival of humanity. So as corporations have arisen with the view to coordinate various economic interests, which were abstracted from their human holders to the extent of new legal entities created by law (i.e. ultimately – by human) such as nature and its components could be recognized as holders of legal rights with the aim to achieve balance between the interest of the continuously increasing welfare of each individual33 and the interest of preserving the common biological home of humanity as a whole.

Nature as a holder of rights could become a factor for making dynamic in a specific way a number of social relations of which it could be a party, and that the potential of this dynamic is the basis for consideration the concept of rights of nature. In any case it is about dynamic made by man for man and the rhetoric concerning "the interest of nature" is a human-made structure with instrumental value (as is the case with "the interest of legal entities"). However, this value should not be underestimated, as it provides a completely different legal options compared to those already contained in environmental laws guaranteeing the protection of nature only as an object of law, even though it is one of the most valuable legal objects.34

 

6. The full range of legal entities

If we systematize what has been said, we could outline a "full range of legal entities", which includes two major categories: physical persons and legal entities. Physical persons can be divided into two groups: people (human persons) and other individuals (nonhuman persons). Legal entities can also be divided into two groups: social entities, the most common of which are corporations, and natural entities, the most common of which are ecosystems. So the outlined categories and groups are symmetric: on one side there are animals as "nonhuman" physical persons and natural formations as legal entities, and on the other side – people as "human" physical persons and their social formations as legal entities. This symmetry in the delineation of possible legal personhoods creates conditions for balance on a structural level – at the level of structure of law there are already comparable mechanisms for balancing the interests of people with those of animals, and the interests of corporations with those of ecosystems. If we turn to Bulgarian law, we find that half of this possible balanced and symmetrical structure is generally absent: as legal subjects are recognized only people (physical persons) and their social formations (as legal entities). This could be found as the most serious reason why the adopted legal framework of legal personhood does not have the capacity to effectively protect nature. If we really stand behind the goal to protect and conserve nature we should look for structural change in the legislation, and not just palliative piecemeal solutions. Such a structural change is offered by the full range of legal personhood model (Table № 3).

 

Table № 3 "Full range of legal personhood"

 

 

Physical persons

 

 

nonhuman

human

 

natural

entities

 

social

entities

 

ecosystems

corporations

 

 

Legal entities

 

 

The balance between the interests of people and their social formations (aimed at the use and consumption of natural resources) and the interests of nature and its formations (aimed at the preservation and conservation of natural resources) could be achieved by "parallel arming" of both interests with relatively similar legal equipment: subjective rights (Table № 4). When nature is granted the status of a right holder, it becomes a party. It could be spoken on its behalf. The objections related with the potential of having such a natural ideology misused encounter response of having the same potential in social formations recognized as legal persons by law. Companies are much more personae ficta than an ecosystem. The ecosystem is a living system comprised by continuously interacting components. It exists materially, unlike a foundation for example, and is in a much better position to claim legal personhood.

 

Table № 4 "Rights – balance of interests"

 

 

Physical persons

 

animal

rights

nonhuman

human

human

rights

 

B A L A N C E

 

rights of

nature

ecosystems

corporations

rights of

corporations

 

Legal entities

 

 

The above attempts to systematize the holders of legal personhood and to locate potential areas for the rights of nature in the law structure bring a number of questions and probably provoke many objections. However, human rights, at least until man is a biological being, remain conceivable only in the framework of nature and its components. The increasing number of people and the increasing consumption of resources are factors that will determine the place of rights of nature in the theoretical horizons of law.

 

Footnotes:

1 The transition from "natural" rights to the "rights of nature" see. detail Nash, R. The Rights of Nature. A history of Environmental Ethics. London, 1989, p. 13-32. The focus of this article is on the existing regulations which recognize rights for nature or of its particular components.

2 In art. 10, sentence 2 of the Constitution of Ecuador from 2008 it was announced that nature shall be the subject of those rights that the Constitution recognizes for it. The text of the Constitution of Ecuador is available online at the following address. However, actual implementation of rights of nature continues to be a subject of discussion in Ecuador. See Arias, M. Conversation With Natalia Greene About The Rights Of Nature In Ecuador (9 март 2015), available at the following address.

3 See Flores, T. Bolivia's Law of Mother Earth's Rights (20.12.2010), available at the following address. The full text of the law is available at the following address.

4 See here.

5 See Ito, M. Being Nature – extending civil rights to the natural world (24.04.2014), available at the following address.

6 This argument has been used in the dissenting opinion of Judge William O. Douglas in the case Sierra Club v. Morton, (1972), № 70-34, Argued: November 17, 1971, Decided: April 19, 1972 (available at the following address), where he discussed the possibility of specific components of nature to be party to litigation: opportunity to participate in a trial should be granted in favor of „valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes — fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water — whether it be a fisherman, a canoeist, a zoologist, or a logger — must be able to speak for the values which the river represents, and which are threatened with destruction.“ In detail about the case see. Schrepfer, S. Establishing Administrative ‘Standing’: The Sierra Club and the Forest Service, 1897-1956. – The Pacific Historical Review, 1989, № 1, р. 55–81.

7 For this argument see for example Feinberg, J. The Rights of Animals and Future Generation Expanded version of the paper of the same title that appears in William Blackstone (ed.), Philosophy and Environmental Crisis. Athens, Georgia: University of Georgia Press, 1997, available at the following address.

8 The term is used for plants, which normally live together – as a "life-in-a-network", which has its own integrity and value different from those of the individual plants. See Thomson, J. The system of animate nature. Volume I. London, 1920, p. 58-59, as well as Capra, F. The Web of Life: A New Scientific Understanding of Living Systems. New York, 1997, p. 7.

9 Man and other components of the earth form a "biotic team" – see Leopold, A. A Biotic View of Land. – Journal of Forestry, 1939, № 37, р. 727-730, as will as Flader, S. Thinking Like a Mountain: Aldo Leopold and the Evolution of an Ecological Attitude toward Deer, Wolves, and Forests. Wisconsin, 1994, Kindle edition.

10 Вж. Stone, C. Should trees have standing? Law, morality, and the environment. Oxford, 2010, р. 3.The author explicitly states that this process of "expansion" of individuals has always evoked the same initial reaction – mockery, but subsequently led to the approval of the next category of persons included in the "holders" of rights. It seems to me that the concept "rights of nature" has a different ground, which makes it different from the former process of expansion of holders of rights (prisoners, foreigners, women, children, elderly, human embryos, etc.). The concept is related to the systematic attempt for regulation of life on planet Earth, only in the preservation of which we can talk meaningfully about rights and human rights. The „rights of nature“ are a tool for balancing the structure of the law, not just a stage in the expansion of legal personality.

11 For practical irrepressibility of the concept of animal rights when rights are granted to all living beings, see Patrouch, J. Legal Rights for Germs? – Analog/Astounding Science Fiction, 1977, № 97, p. 167-169.

12 About „wildlife rights“ see Favre, D. Wildlife Rights: The Ever-Widening Circle. – Environmental Law, 1978-1979, № 9, р. 242, available at the following address. The attitude of people towards animals can be seen through the perspective of their common "complicity" in various system components of nature. This creates both interdependencies and the need for mutual respect.

13 See Ставру, Ст. Сандра-орангутанът и един макак, който не успя да стане автор. – In: Professional legal site "Challenging the law, Published on February 5, 2015 and available at the following address.

14 See also Fox, M. Man and Nature: Biological Perspective. – In: Morris, R., M. Fox (eds) On Yje Fifth Day: Animal Rights and Human Ethics. Washington D. C., 1978, p. 118.

15 Another river on which there is an initiative to be recognized as a holder of rights is the Ganges River in India. See here.

16 For example, the Constitution of Ecuador recognized these rights in favor of nature: right to be respected for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes (art. 71, par. 1 Constitution of Ecuador); right to be restored (the restoration shall be apart from the obligation of the state and natural persons or legal entities to compensate individuals and communities that depend on affected natural systems (art. 72, par. 1 Constitution of Ecuador). In the Bolivian's Law of Mother's Earth Rights are listed the following rights of nature: right to life: right to maintain the integrity of living systems and natural processes that sustain them, and capacities and conditions for regeneration; right to the diversity of life: right to preservation of differentiation and variety of beings that make up Mother Earth, without being genetically altered or structurally modified in an artificial way, so that their existence, functioning or future potential would be threatened, as well as right to water, right to clean air, right to equilibrium, right to restoration, right to pollution-free living.

17 In this regard it is stated that environmental problems can be authorized as conferring rights not in favour of nature but in favour of people, including new human rights through which they can protect nature. See Elder, P. Legal Rights for Nature: The Wrong Answer to the Right(s) Question. – Osgood Hall Law Journal, 1984, № 22, р. 291, available at the following address, as well as Lehman, S. Do Wildernesses Have Rights? – Environmental Ethics, 1981, № 3, р. 135-137, partially available at the following address.

18 See for example Nash, R. Wilderness and the American Mind. Yale, 2001, р. viii, където се говори за „вътрешна стойност на пустошта“ (intrinsic value of wilderness), as well as Tribe, L. Ways Not to Think About Plastic Trees: New Foundations for Environmental Law. – The Yale Law Journal, 1974, № 7, р. 1315-1348, available under the heading „Ways Not to Think About Plastic Trees“, p. 62, 84, 86, at the following address. See also Bonifazi, C. A Theology of Things: A Study of Man in His Physical Environment. Philadelphia, 1967, p. 24, where is stated that the specific "spiritual essence" and even inwardness is incorporated into every object. On this topic is devoted another book by the same author – Bonifazi, C. The Soul of the World: An Account of the Inwardness of Things. Lanham, 1978.

19 In this regard is justified so called Earth Law – see Earth Jurisprudence – Earth Law, available at the following address, as well as Thomas, B. The Great Work: Our Way into the Future. New York, 1999.

20 In this regard speak of "liberation" of the Earth. See Cohen, M. Prejudice against Nature: A Guidebook for the Liberation of Self and Planet. Maine, 1983.

21 See also Wood, J. Modern pantheism as an Approach to Environmental Ethics. – Environmental Ethics, 1985, № 7 (2), р. 151-163.

22 Namely the religious beliefs about nature as spiritualize possession of the gods are used to justify the concept of stewardship of natural resources by man – the man enjoys the nature as a loan, it is not his possession. See Dubos, R. So Human an Animal: How We Are Shaped By Surroundings and Events. New Work, 1968, p. 7, as well as Dubos, R. A God Within. New York, 1972, p. 153-174. The process of taking care of nature is indicated as wooing – see Dubos, R. The Wooing of Earth. New York, 1980.

23 See Хаджийска, Л. Долу ръцете от елфите, published on February 13, 2015 at the following address.

24 See Gottlieb, J. Iceland's hidden elves delay road projects, published on December 22, 2013 at the following address, as well as Benjamin, G. It Was My Way, And The Highway. Gálgahraun lava field and the new Álftanesvegur road, published on August 20, 2014 at the following address.

25 See Wainwright, O. In Iceland, ‘respect the elves – or else’. – The Guardian, published on March 25, 2015 and available at the following address.

26 See Хаджийска, Л. Долу ръцете от елфите, публикувана на 13 февруари 2015 г. at the following address.

27 Called in various ways, including „elf obsessed pseudo-environmentalists“ – see John, A. Iceland's 'Elf Lobby' Isn't Real, According to Icelanders, published on December 23, 2013 at the following address.

28 For the role of religion as a restraining factor against the exploitation of nature see Schwartz, J. The rights of nature and the death of God. – National Affairs, 1989, № 97, р. 12, available at the following address. „Rights of nature“ is a way of recognizing the "secular transcendence" that could replace God as a factor limiting human usage of nature. In this regard the rights "sanctificate" nature.

29 The term "rights sub human world" is used – see Hartshorne, C. The Rights of the Subhuman World. – Environmental Ethics, 1979, № 1, р. 49-60. The emphasis again is on the inside value of nonhuman components of the nature.

30 See in detail Bumper Development Corp., Ltd. v. Commissioner of Police of the Metropolis and Others (Union of India and Others, Claimants) England, Court of Appeal, Civil Division, 1991, available at the following address.

31 See also Bhisham Pal, H. The Plunder of Arts. New Delhi, Abhinav Publications, 1992, р. 170.

32 For ecotheology) see Nash, R. The Rights of Nature. A history of Environmental Ethics. London, 1989, p. 88, 110, as well as Skolimowski, H. Eco-Theology: Towards a Religion for Our Times. Madras, 1985. See also Hart, J. The Spirit of the Earth: A Theology of the Land. New York, 1984,as well as McDonagh, S. To Care for the Earth: A Call for a New Theology. Santa Fe, New Mexico, 1987.

33 Which has always been identified as a major cause of environmental problems. See for example Cobb, J. Is it Too Late?: A Theology of Ecology. Denton, 1995 р. 5.

34 Another possible approach to dealing with changes in the nature is the demand for technology substitution of natural objects – creating an artificial environment ("programmed paradise") of synthetic fauna and flora (trees, grass) to replace the lost nature. See Krieger, M. What's Wrong with Plastic Trees? Rationales for preserving rare natural environments involve economic, societal, and political factors. – Science, 2 February 1973, Vol. 179, № 4072, p. 446-455, as well as Tribe, L. Ways Not to Think About Plastic Trees: New Foundations for Environmental Law. – The Yale Law Journal, 1974, № 7, р. 1315-1348, дavailable under the heading „Ways Not to Think About Plastic Trees“ the following address.


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