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What If Orangutans Had Their Day In Court?

Environmentalists say nature should have legally recognized rights. But what does that really mean?

orangutan.jpg

Photo by David and Becky

If a corporation has legally protected rights, such as freedom of speech, is it such a stretch to extend them to a river or an orangutan?

A growing movement of environmentalists and social-justice activists say nature should have legally recognized rights. More than 100 communities in the United States have passed ordinances granting rights to nature, and Ecuador has included language that recognizes the rights of nature in its constitution.

But what would it mean in the real world to have a lawyer arguing on behalf of an ecosystem or an animal? Is it practical?

I asked Cormac Cullinan, one of the leaders of the rights-of-nature movement. Cullinan wrote the book on the subject—he’s the author of Wild Law: Protecting Biological and Cultural Diversity, a seminal text on the concept of rights of nature.

In April 2010, Pablo Solón, Bolivia’s U.N. ambassador, enlisted Cullinan to lead the drafting of the Universal Declaration of the Rights of Mother Earth at an alternative climate conference held in Cochabamba. The final Declaration represented the work of 35,000 conference attendees. For many activists, the Declaration presents an alternative to the weak agreements that make up the Copenhagen Accord, though it has not been officially acknowledged by the United Nations.


Madeline Ostrander: What does it mean to say nature has rights?

Cormac Cullinan: Indigenous cultures don't talk about nature having rights because the concept of rights is not central to their culture. But they understand that they are in relationship with every aspect of Earth—not only with other people but also with the air that they breathe, the food that they eat, the plants, the animals. Most indigenous cultures have means for ensuring that these fundamental relationships are respected.

In Western cultures, we call some aspects of those relationships “rights.” And then we use the courts and the police to enforce those rights. At the moment most legal systems define everything that isn't a human being or a corporation as property, which means it's like a slave—it's incapable of having rights. Now as soon as you say “rights for nature," it forces people to consider the possibility that other beings besides people and corporations may be capable of holding rights. It starts a conversation about a deeper issue: our dysfunctional relationship with nature.

Ostrander: In a courtroom, how would it work if judges, juries, and lawyers recognized the rights of nature?

The mock-trial decision was that the rights of the orangutans to have habitat were more fundamental than the rights of humans to drive cars. Therefore, the forest couldn't be cut down.

Cullinan: Instead of only being able to go to court to protect human interests, you could protect the interests of the Earth. You could go to court on behalf of the Gulf of Mexico to say that the Gulf has suffered harm as a result of BP and Deepwater Horizon, and you could say that the ecosystem has a right to be restored to integrity and health.

In the current legal system, if you're going to go to court, you have to find a human interest that's been affected—you have to say, I'm a shrimp fisherman and I've lost so much in revenue.

To give you another example, a few years ago the UK Environmental Law Association had a mock trial. The case concerned a rainforest in Malaysia where orangutans live. It was going to be cut down to plant an oil palm plantation, which would be used to create biofuels. Now if that case were argued in ordinary court, it would revolve around whether or not the people had the necessary permit to log the forest.

Under a rights-of-nature scenario, the argument was whether the human right to have the fuel for cars trumped the rights of the orangutan to have habitat. The decision was that the rights of the orangutans to have habitat were more fundamental than the rights of humans to drive cars. Therefore, the forest couldn't be cut down.

You can see, the discussion is about balancing what's good for humans against what's good for other species and the rest of the planet. And that's precisely what doesn't happen at the moment and why we have got such terrible environmental problems. Because we continue to believe that we can just dominate the planet for our own interests and disregard the interests of the rest of the planet. 

Ostrander: That’s a mock trial. Where have rights of nature been put into practice?

Cullinan: In South Africa, I have drafted coastal legislation, the Integrated Coastal Management Act, which says that if you're making decisions in relation to coastal areas, they must be made in the interest of the whole community, and I defined the whole community in a way that included all inhabitants of those areas whether they were human or not. It's a very small way of beginning to shift your decision-making toward more eco-centric criteria.

Rights-of-nature balances the rights of individuals based to the health of the whole. If a wolf eats a deer, it hasn’t infringed the deer's rights.

Of course there are very similar concepts in African customary law, remnants of which still exist. A few years ago, I wrote about a case in which somebody represented a hyena before an African traditional court in Kenya.

Ecuador's got the furthest with this: It has granted rights to nature in its constitution.

Ostrander: The rights-of-nature concept seems fundamentally different from animal rights. For instance, it doesn’t seem that giving rights to nature would necessarily turn us all into vegetarians.

Cullinan: No. “Rights of nature” is a more encompassing concept than animal rights. It says that if human rights exist regardless of whether the government grants them to you, then other creatures, or other aspects of the biosphere that co-evolved with us, must have similar rights to exist and to play their part, including animals.

But one of the difficulties I've had with animal-rights arguments is that they’re often based on sentience—sentient animals have rights but not others. And that's never really made much sense to me. Does an oyster have rights? Rights-of-nature balances the rights of individuals based to the health of the whole. If a wolf eats a deer, it hasn’t infringed the deer's rights. Part of the function of deer in the ecosystem is to be eaten. And in practice, a court would only be concerned with situations where human actions were disturbing an ecosystem.

Ostrander: Bolivia has been pushing the United Nations to formally recognize the Universal Declaration of the Rights of Mother Earth and have it be part of climate negotiations. How could the idea of rights of nature become a tool for dealing with climate change?

Most activities that result in the emission of greenhouse gases and climate change are perfectly legal.

Cullinan: What’s important about the Declaration is that it addresses the drivers of climate change. Climate change is not an isolated phenomenon. The cause is really the economic, political, and legal systems that promote activities that cause climate change. Most activities that result in the emission of greenhouse gases and climate change are perfectly legal. Industrialized societies are built on the profligate use of hydrocarbons like oil, gas, and coal. That's what built them, and it's also what will kill them. You can't fix it by tinkering. You have to make fundamental changes so that your society is not built primarily on those energy sources. The text of the Declaration is like the DNA of a new society that wouldn't produce climate change.

For me, it would be a bonus if the Declaration went through the United Nations system, and it would be a very significant victory if it happened in the next few years. But this declaration already exists as a people’s document, by virtue of the fact that it emerged from the work of the 35,000 people involved in the conference in Cochabamba.  The real strength of it is as a common manifesto for civil society.


Madeline OstranderMadeline Ostrander interviewed Cormac Cullinan for YES! Magazine, a national, nonprofit media organization that fuses powerful ideas with practical actions. Madeline is senior editor at YES!

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