PhD Researcher, UCC School of Law
A new version of the Eco-Jurisprudence Monitor map has been recently updated. It has documented 495 rights of nature initiatives in 40 countries and territories across the globe, of which roughly 98 are approved constitutional provisions, case law, statute or indigenous law rights of nature legal manifestations. It would seem that rights of nature are entering into a period of consolidation and maturation, as recent developments in Spain and Ecuador would show. However, after the initial explosion of rights of nature laws, the aftermath of which still resonates at all levels – for example, in international law, with recent case law of the Inter-American Human Rights Court, or in domestic law, with the two judgements in the German ‘dieselgate’ case –, it might also be time for taking stock of its legal effectiveness. Looking at rights of nature’s normative functions may allow for a reasonable understanding of the role it plays as part of rights-based environmental protection frameworks within different contexts.
Legal effectiveness of environmental law could be described as the substantive, procedural, financial, institutional and tools that lawmakers devise for implementing it. This question of law is substantially different from effectiveness strictly speaking, which is concerned with whether law can achieve real environmental protection – a question of fact. However, not all environmental law is adequately equipped with such tools. As scholars have pointed out, sometimes, extrinsic and intrinsic factors have a significant sway in lawmaking outcomes, which ultimately shape the scope of environmental protection laws can offer. For instance, public pressure in delivering the public good of environmental protection sets out highly ambitious goal that might be extremely difficult or impossible to achieve. The environment itself entails non-linear, complex interdependencies, riddled with uncertainty, which renders cumbersome legislating in such matters. Furthermore, ruling powers will seek to exert their influence to divert attention from the salient and structural issues in capitalist production at the heart of environmental degradation.
These factors can ultimately lead to a delivery of environmental ‘law for show’. That is, to law with so many hurdles to deliver substantive action that its implementation becomes a performance. A piece of environmental legislation that relies heavily on reporting, endows the executive branch with elevated discretion for its implementation, does not have strong enforcement mechanisms, does not provide for specific funding for institutional bodies, or has weak public scrutiny would be considered to foster an impression of substantive action. It transpires that, just like environmental law, rights of nature are themselves prone to performativity. Therefore, where rights of nature laws have not been incorporated with an extensive and coherent reform of existing judicial review, liability and standing rules, substantive rights of natural entities are devoid of specific content, nature has no discernible stake to its own ecosystem services nor can own itself, or environmental stewardship bodies are not duly resourced, there might be room for a high degree of gestural compliance with such norms.
Performativity in rights of nature is omnipresent. For example, creative judges have used rights of nature in constitutional writs to impose complex environmental management plans in ad hoc participatory governance arrangements with little to no funding that are almost impossible to execute. A breakthrough European law protecting rights of a water basin issued from a citizen-led legislative proposal has taken over two years to be regulated by the executive, probably also awaiting an overdue constitutional judicial review. More recently, Amazon forest loss was fueled by climate change and destructive agricultural practices while two landmark statutes recognising the rights of Pachamama and rife with symbolic and aspirational declarations remained unenforced. Moreover, glaciers and rivers were endowed with rights as ‘juristic persons’ framed within the majoritary religious belief of a country where a long haul far-right government would be stoking tension towards religious minorities. And lastly, rights of nature would implicitly carry an idea of decolonisation without actually subverting the infinite growth status quo or even indulging in ‘green Keynesianism’. These are but mere examples that point to rights of nature laws with ambitious environmental protection objectives that are designed – not necessarily out of bad faith – to remain ineffective.
But is performativity necessarily a bad thing? It does not have to be. There is evidence that such legislation would perform an expressive and communicational function, even when rights of nature would be partially complied with or not complied with at all. Symbolic or aspirational legislation, in different contexts, has acted as a moral safeguard fulfilling certain social roles. One is certainly creating a vocabulary around which normative discussions will be structured, as well as institutions and procedures to carry them further. The most important function being that of giving expression to environmental protection values in the political sphere. Placing such values at the centre of the public debate reflects their changes in space and time, and can act as a catalyst for greater support of more stringent regulation and compliance from reluctant stakeholders. Although rights of nature would thus be affected by lack of enforcement, this phenomenon would paradoxically reinforce environmental rule of law. It would create new pathways for implementing them beyond the legal system itself and would complement the protection existing environmental rights.
There is no doubt that rights of nature have excelled in accomplishing the aforementioned communicational task while still not being satisfactorily complied with by stakeholders and authorities. The language of rights instilled into the protection of nature’s intrinsic value has truly reinvigorated the need for stronger environmental protection, cognisant of socio-environmental justice. Performativity in rights of nature laws provides a supplementary approach to the traditional functions of protection and instrumentality of law, and ought to be taken seriously, given its role in the democratic legitimacy of such norms. These two sides to rights of nature – one political, one legal – although seemingly irreconcilable, might help bring forward the desired outcome of increased environmental awareness translated into community-led substantial action. Just not in the way and at the pace legal scholars would expect.
Environmental Law and Justice 
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