It is not every day that an English barrister goes to court to argue a case for the rights of Nature. In mid-July I found myself acting on a case which focused precisely on that. For some weeks I became engrossed with the natural world living in a cloud forest near the Equator, at risk of extinction. This was an amicus brief, and the court was the Constitutional Court of Ecuador. The experience was illuminating. Here are my thoughts.
Rights of Nature
It is a Friday afternoon and I am on a Zoom call. It is an unusual video conference. I am discussing a court case but it is an unprecedented one. I am being invited to act as Amicus Curiae before the Constitutional Court of Ecuador. The case concerns a mining concession to explore gold and other minerals and a cloud forest. Unlike some of the cases that arise from Latin America there are no indigenous peoples inhabiting the affected forest. The government had taken the view that because there are no indigenous peoples inhabiting the forests, there is no one to consult on the project. As a result, it had granted the concession. This made the entire case focus on whether the Rights of Nature would be violated by the destruction of this cloud forest with all its living species (fauna and flora).
I have come across some people arguing whether Nature should have rights.
Nature already has rights under the Constitution of Ecuador. In 2008, the Constitution of Ecuador adopted a unique approach. It abandoned an anthropocentric approach to rights. In so doing, Ecuador became the first country to recognise the Rights of Nature in its Constitution and it could become the first to protect large areas of biodiversity, based upon this constitutional innovation setting a precedent worldwide.
Article 71 of the Constitution of Ecuador provides that ‘Nature, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.’
This legal provision reflects the cosmovision of indigenous peoples in the Americas.
The Incas (my ancestors) used the word Pachamama, to denote the Earth in Quechua, the language of the Andean civilization. To them the Pachamama, is a creative power that sustains all life on this earth.
In a ruling dated 18 May 2020, the Constitutional Court of Ecuador selected the case of Los Cedros to be heard. This would be the first world case in which a court would address in a central manner the scope of the Rights of Nature. It will be a landmark ruling on what is a growing body of law called Earth jurisprudence.
Los Cedros forest
It is the hottest day in August and I am drafting my brief. From my London flat, I marvel at the myriads of life existing in the forest at the heart of the dispute and I argue for the right of existence of this irreplaceable living world. I have been given the strange honour of being a barrister for the Earth.
Los Cedros forest is located in north western Ecuador. It is one of the most biologically diverse habitats in the world, with more than 4,800 hectares (nearly 12,000 acres) of primary cloud forest. Three rivers are born in Los Cedros and it is home to 299 tree species per hectare, 400 species of orchids (only 187 identified so far) and many notable rain frogs (almost all in danger of extinction). Los Cedros is also home to 317 species of birds including the cloud forest Pygmy owl (Glaucidium nubicola) and six wild cat species (including jaguars). It is the home of many endemic species including the last critically endangered brown-headed spider monkeys in the world, as well as the endangered Andean spectacled bear, which inspired the beloved fictional character Paddington Bear.
Los Cedros is a primary forest. Primary forests are part of the original forests of the planet that have not been transformed or altered by human activity. There are not many primary forests left in the world. Los Cedros Forest is one of the last remaining virgin forests on the planet. In no other terrestrial ecosystem are there so many different types of animals and plants as in primary forests. They are home to about two-thirds of the world’s terrestrial species of plants and animals, many of them still unknown.
These native forests are not only important for the oxygen with which they provide us, but also for their ability to absorb carbon dioxide from the atmosphere, thus mitigating climate change. They perform a key role in the world climatic balance.
My amicus raises Ecuador’s obligations under the 1992 Convention on Biological Diversity, the Aichi Targets, the 1992 United Nations Framework Convention on Climate Change,
the Paris Agreement, the 1972 UNESCO Convention concerning the protection of the world’s cultural and natural heritage, as well as regional agreements specific to the Americas,
all of which are directly justiciable in Ecuador’s legal system.
The ‘human rights’ paradigm
With the advent of a human rights-centred approach to rights reflected in the 1948 Declaration of Human Rights, the right to life as a legal notion became an anthropocentric notion. It somehow marked the loss of the indigenous visions of the world in which all the living had equal rights. In fact, mountains, rivers, Earth were believed to be sacred.
Did we get it wrong? Has a system of law that only respects the right to life of human beings (legally speaking) missed the true protection of life?
In the midst of climate change and COVID-19, and faced with the collapse of the natural world around us, are we finally waking up to the narrow mindedness of such an approach?
Just a few days ago, the European Court of Human Rights held a high-level conference, on ‘Human Rights for the Planet’. I was privileged to participate. It was a reflection on the Strasbourg body of law and its suitability to protect human life in its inextricable link to the environment.
I felt that we were at a turning point. Something similar to what our elders may have experienced during the Enlightenment.
A change of paradigm
In the world of my ancestors there was a respect for the Earth which I have seen only mirrored in indigenous cultures in other parts of the world I have acted for; the Wayuus, the Wiwas, the Koguis, the Arhuacos, the Maswals, the Cho’rtis, the First Nations in Australia and the Pacific. It is the respect for all the living. Before planting seeds one ‘asks permission to the Earth’. The landscape contains the soul and the roots of the people.
In The Plague Airs, Cao Zhi (192-232 CE), one of the best known poets of the late Han/Three Kingdoms period, who witnessed a plague of his time, observed how ‘the contagion spread, bringing sorrows over corpses in every family, tears of lament in each abode’ and stated: ‘The cosmic forces were out of balance; winter and summer had turned around: this was its cause.’
As in the Plague Airs, our world has also become out of balance. Not just because of COVID-19, but also because of climate change. Over the last two years I have been acting on behalf of a community whose homes have become sinking islands. This is a human-induced imbalance.
We used to take breathing for granted. The pandemic came to make us appreciate the simple and yet vital gift to be able to gulp air, to breathe, as the most indispensable, most elemental of actions. The lockdown also taught many, particularly those with no garden, about the need to access nature, green. The hidden, forgotten, need of human beings to be as one with Nature.
We may be standing at the very crucial moment where notions such as our idea of progress and development needs to be re-conceived, re-considered and a new paradigm embraced. Perhaps the very notions at the heart of the Constitutional Court of Ecuador in Los Cedros case, may serve to advance our understanding of such a paradigm and may be followed as an example by other systems of law.
Monica appeared at the hearing in this case on 19 October 2020. Judgment will be delivered early in December.