Rights of nature: The magic of hiking with a Judge?

Markus Ciesielski, Hildesheim University and Angela María Sánchez-Alfonso, Free University of Berlin

Much has been said about the rights of nature. The purpose of our blog post is not to review the various positions for and against the rights of nature. Rather, it aims to show how a conference held at the Max Planck Institute for Social Anthropology (MPI) in Halle, Germany, in January 2024, helped to understand what a recently published article in the Journal of Law and Society, ‘Shortcuts and Detours of Environmental Collective Legal Mobilizations: The Cases of the Atrato River and the Amazon Region in Colombia’ (Vol 51, Issue 1, 2024) could not cover. The rich discussions at the conference shed light on how to demonstrate the importance of nature, socio-ecological relations, and ecological justice to courts, even when scientific expertise seems limited in demonstrating this holistically. How can we get judges to deal with the problems and consequences of the global socioecological devastation that is already happening?

MPI-Conference “The Magic of Rights” 

There were many important messages that came out of the conference. Perhaps the most important was how to make judges aware of the eminent risks of climate change in contexts of social inequality, where other social, political and economic problems may be pressing and more than often interrelated. This is a question with clear precedents in English-speaking socio-legal scholarship. Scholars such as Frances K. Zemans and Stuart Scheingold have asked whether legal mobilization can offer alternatives for participation when political avenues seem blocked. At the Halle conference, some 30 international scholars, activists and journalists traced environmental legal mobilisations in the Americas, Asia, Africa, and Europe.

What they were discussing at the conference was a more recent dynamic, the legal entitlement of nature. As Donald Anton and Diana Shelton show, this discussion of nature’s rights manifested itself even earlier than Christopher Stone’s seminal work on the legal standing of trees in the 1970s. The contributions to the Halle conference left no doubt that the rights of nature are an important dynamic today, not only in the realm of law, but especially in environmental and indigenous activism and in postcolonial debates. There were presentations on the rights of nature in New Zealand, Nepal, Tibet and Ethiopia. But the Los Cedros case in Ecuador had a central visibility: In the words of Ecuadorian constitutionalist Agustín Grijalva Jiménez, it was about understanding the “magic” that can only be recognised when hiking through the Los Cedros Páramo, a unique Andean ecosystem in Ecuador. It is a cloud forest that is extremely vulnerable to global warming. And it is a legal entity since a landmark ruling by the Ecuadorian Constitutional Court in 2021. It is important to note the ‘judicial backlash‘ that followed in other cases.

Miti Miti, reproduced with permission of Cristina Merchán

Shortcuts and detours of environmental collective legal mobilization

The Ecuadorian case was undoubtedly at the centre of the conference’s attention, along with a second case: Colombia’s 2016 ‘Atrato Case‘. It is an emblematic case in the debate on the rights of nature. The Atrato case was decided by the Constitutional Court of Colombia and has been followed by various rulings, including a 2018 decision on the Colombian Amazon.

The Atrato and Amazon cases both challenged the human-centred approach typical of modern law. Instead of putting people at the centre, the rulings were known to be based on the eco-centric idea that “the land does not belong to the people, but the people belong to the earth”. This is how one activist described the new approach in an interview for in a research project focusing on legal mobilisation in both cases.

However, the focus of the research was to ask how rights were collectively mobilised in cases where an eco-centric legal framework did not yet exist. The study combines sociological and legal approaches and is based on documents and interviews with the plaintiffs. However, the study`s main objective goes beyond understanding what happened in the Colombian courts in 2016 and 2018. Rather, the research aims to discuss an idea of Charles Epp that many scholars respect as an intuitive approach to collective legal mobilisation. Inspired by the “rights revolution” in the English-speaking world, Epp understood that collectives would be the “missing ingredient” of litigation, providing a support structure that would help overcome the barriers of individual claims. In the Atrato and Amazon cases, however, this idea would be too simplistic to apply to either litigation. The most compelling point is that the assertion of rights of nature was not the collective goal of either plaintiff, but these rights ended up being a vehicle to mobilise and frame broader claims of social justice during the litigation. 

The study cannot, however, show how the judges in the two cases decided. This is due to the methodological framework, which focused on interviews with the plaintiffs. It also provides a first insight into the diversity of social relations and interactions between NGOs and local actors. The findings address the more general question of whether collective work is a shortcut to litigation and when it might become a detour.

Constitutional Court of Colombia, Expediente T-5.016.242, p. 129

Pending issues for environmental collective legal mobilisation

The mentioned article recounts also the memory of a member of an NGO who was involved in the litigation. The statement revolves around an in-situ hearing of the Colombian Constitutional Court that decided to visit the Atrato River, an exceptional practice for such a high court. Located in the Chocó region, the Atrato tends to be conceived as a remote place in western Colombia. The Chocó is often relegated because of the social, economic and cultural exclusion of the mainly Afro-Colombian and Indigenous population. These communities live in an immensely biodiverse and resource-rich area and have been affected by decades of armed conflict, an extractivist economy, and poor provision of basic services.  In this context, when the judges visited Atrato in 2016, the local population had the opportunity to present (some of) their problems and complaints to the committee, while the judges had the opportunity to witness firsthand the world described to them in the lawsuit. 

However, the article does not reveal how or if this hearing changed the Court’s view of the Atrato case. This missing piece was somehow put on the table at the conference in Halle. A first hypothetical approximation could be made based on what Grijalva Jiménez reported together with José Cueva, a member of OMANSE, who is fighting for the rights of nature: As in Colombia, in the case of Los Cedros in Ecuador, there was also a visit of the Court. When a committee of the Ecuadorian Constitutional Court visited the unique páramo-landscape, the judges literally went on a hike with the local communities. Walking along the same paths, the visit made the Court’s Commission aware of the importance of protecting this place from the environmental damage that threatens it.

Perhaps, something similar happened during the in-situ hearing in the Atrato case. It seems that the direct impression and contact with the affected nature and people, as well as the contact with local practices and biocultural diversity, was a way to win the attention of the judges and to give authentic and personal testimonies. With this possibility in mind, the example of hiking with judges could serve as a path for future research that asks about similar complementary practices of plaintiffs or even strategies for environmental legal mobilization. Moreover, hiking with the judges speaks of an epistemological option for mobilizing the rights of nature: That legal reasoning can continuously reflect on its sources in the light of a world where human and non-human beings coexist interdependently.

Short Bio

Markus Ciesielski is a postdoctoral researcher at the University of Hildesheim. His research focuses on the sociology of law. Covering legal mobilization and legal transformation, his research relates legal practices and social inequalities in an international comparative perspective. He focuses on access to fundamental rights, rights of nature, and the role of intermediary actors between the judiciary and citizenship.

Angela María Sánchez-Alfonso is a Ph.D. candidate in Political and Social Sciences at the Freie Universität Berlin and a researcher in the Blurring Boundaries group at INTERACT, where her research examines land dispossession and socio-environmental conflicts through law, geography, and critical theory. She holds a law degree (cum laude) with minors in sociology, history, and economics from the Universidad de los Andes, as well as a master’s in law and worked with Colombian communities to defend their rights and territories against extractive industries.