30In March 2011, shortly after the Wheeler ruling, the Ecuadorian government filed a lawsuit against illegal gold mining in northern Ecuador, in the districts of San Lorenzo and Eloy Alfaro. In this case, the mining industry was accused of polluting the river and thus violating the rights of nature. The fact that the case was brought by the government may explain the swift verdict and its implementation: a military operation was ordered to destroy machinery used for illegal mining.65 46Problems can also arise when part of an ecosystem is declared a legal entity and separated from related and necessary components. A river, for example, cannot be fully protected without covering the entire watershed, including tributaries. The Whanganui Agreement rightly combines the river, bed and bank into a single unit, but still allows nature to be divided into separate entities. 93 For example, Steven M. Wise, Drawing the Line: Science and the Case for Animal Rights 8, 231-40 (Perseus Bks. 2002) (argues that some animals, especially other primates such as chimpanzees and bonobos – the closest genetic relatives of humans – should be recognized as holders of legal rights and legal personality); Steven M. Wise, Rattling the Cage: Towards Legal Rights for Animals 7, 240, 267 (Perseus Bks. 2000) (the same) [hereinafter Wise, Rattling the Cage]. The attribution of legal personality to nature or to certain elements of the natural world can be observed as a phenomenon that appears in several doctrines and systems around the world. The historical concept of the common law public trust has been expanded to include the natural world or parts of it that become protected beneficiaries.
At the same time, various “rights of nature” have been recognized in the constitutions of several countries. A growing number of lawsuits and other projects are aimed at having non-human primates and other animals recognized as legal entities, while in New Zealand, a river has been assigned a personality. The consequences and therefore the advantages and disadvantages of this environmental approach are presented and deserve to be deepened. 39The law generally continues to treat animals as things and not as persons.92 Philosophical and legal thinkers concerned with animal issues are in favour of recognizing the legal personality of animals in one form or another.93 The German Civil Code is somewhat in line with the establishment of legal personality: “Animals are not things. They are protected by special laws. They are subject to the provisions applicable to the property, subject to the necessary modifications, unless otherwise provided. 94 The Germans went beyond the legislation and amended their constitution to ensure the protection of animals. Article 20a of the Basic Law of the Federal Republic of Germany states: “The State, also aware of its responsibility towards future generations, shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action within the framework of the constitutional order.” 95 In the Northern Luzon Province of the Philippines, the Ifugao tribe had a law that said, “Animals shall be given legal personality. It is an attack of a personal nature to kill an animal maliciously. 96 4The concept of rights and legal personality of nature has been proposed in various forms, ranging from legally enforceable rights, human responsibilities and duties towards nature, to “biotic rights” as moral imperatives. The legal recognition of the intrinsic value of nature through the addition of new “subjects” of law is a far-reaching proposition.
Some argue that this has already happened,6 while others argue that assigning rights to nature anthropomorphizes them to their detriment.7 Still others see rights as a tool to increase the value of nature. 19In his highly cited and influential article “Should Trees Have Standing?”, Christopher Stone argued that the environment should have legal personality and rights because, as a rights holder, the natural object would have “a legally recognized value and dignity in itself, and would not simply serve as a means for the benefit of `us.`” 43 In its dissenting opinion in the landmark environmental case, Sierra Club v. Morton,44 Justice William O. Douglas argued that “inanimate objects” should have standing to take legal action: 3The rights-based approach differs from other models in several key ways. First, the approach can be interpreted as emphasizing the right of every human being to a certain quality of the environment, since this quality is linked to the enjoyment of a large number of rights guaranteed at the international and national levels, and is even a prerequisite. Alternatively, the approach can be interpreted to mean that the environment itself must be maintained in a healthy and ecologically balanced state. Second, all legal systems establish a hierarchy of norms. Constitutional guarantees usually come first, “eclipsing” conflicting norms of lesser value.5 One of the values of being a “person” before the law is that such status automatically confers certain rights, although not all people have the same rights, as discussed below. 12 See Commonwealth v. Newport News, 158 Va.
521, 164 p. E. 689 (1932): The ius publicum and all the rights of the people, which are intrinsically inherent or inseparable from them, are incidents of the sovereignty of the State. Consequently, by reason of the purpose and purposes for which it was designated, the Constitution implicitly denies the legislature the power to surrender, abandon, destroy or seriously impair ius publicum […] Id. at 546, 164 S.E. at 697. 47Environmentalists might fear that the legal personality of nature will inevitably have to be defended by man. When these people are appointed by the government, environmental concerns are not always paramount. All custodians are responsible for developing a management plan and deciding which specific activities should be allowed. In theory, environmental authorities already assume this responsibility with respect to public lands and protected areas. It is unclear to what extent the shift in perspective will take place if the focus is on the region rather than the people. Get instant access to our entire library of customizable legal documents.
Article 72 Nature has the right to be restored. Such restoration is independent of the obligation of the State and natural or legal persons to compensate individuals and communities who depend on affected natural systems. In the event of serious or lasting environmental impacts, including those caused by the exploitation of non-renewable natural resources, the State shall establish the most effective restoration mechanisms and take appropriate measures to eliminate or mitigate the adverse effects on the environment. HomeSpecial issueSpecial issue 22The direct representation of the n. Nature as a Legal Entity 8U.S. state constitutions, revised or amended from 1970 to the present, have incorporated the doctrine of public trust to better protect the environment.15 In fact, every state constitution drafted after 1959 explicitly addresses nature conservation and environmental protection.16 One group of these constitutions calls for the acquisition and regulation of natural resources as part of the public trust. Another set of constitutional provisions explicitly recognizes the right of citizens to a safe, clean or healthy environment, in a manner that also implies responsibility for natural resources.17 58 Article 71. Nature or Pasha Mama, where life is reproduced and occurs, has the right to full respect for its existence and the maintenance and regeneration of its life cycles, structures, functions and evolutionary processes.
All individuals, communities, peoples and nations can appeal to the authorities to uphold the rights of nature. In order to ensure respect for and interpretation of these rights, the principles set forth in the Constitution are respected, where appropriate. The State encourages natural and legal persons and communities to protect nature and promote respect for all elements of an ecosystem. The crucial issue of “standing” would be simplified and prominently highlighted if we were to devise a federal rule that would allow federal agencies or federal courts to bring environmental issues before federal agencies or courts on behalf of the lifeless object that is looted, disfigured or invaded by roads and bulldozers. and where violations are the subject of public outrage.