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Theme: Earth Jurisprudence by Femke 2018 Harmony with Nature – Theme: Earth Jurisprudence By Femke Wijdekop – Earth-centered Law 1. What would the practice of Earth-centered Law look like from an Earth Jurisprudence perspective? How is that different from how Earth-centered Law is generally practiced now? And, what are the benefits of practicing Earth-centered Law from an Earth Jurisprudence perspective? If law were to be practised from an Earth Jurisprudence perspective, we would drastically change the values that are protected and to which is given priority in our legal system. Right now, our legal system awards a central place to the right to property and the freedom of trade. The values of economic development and entrepreneurial freedom have become the building blocks of our economic system and societies, and are well protected under contract and trade law. It is so-called 'hard law', enforceable in court, while the right to a clean and healthy environment and much of (international) environmental law is soft law – not directly enforceable in court. The bottom line is that humans are entitled to exploit and pollute nature in pursuit of their individual economic gain and freedom. Environmental law protects nature in a fragmented way and merely regulates the amount of pollution that is allowed; it does not address the underlying premise of our legal system that humans have the right to pollute and exploit nature. If law would be practiced from an Earth Jurisprudence perspective, the central value with the most robust protection in our legal system would become the integrity of ecosystems and respect for the planetary boundaries. Human laws would need to be harmonized with the laws of nature, since human life on planet Earth is dependent on well-functioning ecosystems. Large scale damage and destruction of ecosystems would be punished as an international crime called 'Ecocide', since it is an attack against the ecological foundation of our societies. Law would express the insight that human life is embedded in the natural web of life; that our well-being is interconnected with- and dependent upon the well-being of the wider Earth community. Therefore, protection of the well-being of the wider Earth community, through rights of nature provisions, through a general duty of care towards nature (just as we now have a duty of care towards other humans to not cause them harm) and through Ecocide law as a matter of criminal justice, would be the central features of the legal system. The human right to property and the freedom of commerce can be exercised as long as it does not violate human rights, nature's rights or the planetary boundaries. Respecting the planetary boundaries would become the Grundnorm of our civilization. This way, our freedom and autonomy as humans is understood the proper way: not absolute and unlimited, but interconnected with- and related to the well-being of the wider Earth community. The benefit of this approach is that human development no longer destroys the natural world; instead human development or human 'flourishing' is synced with the flourishing of the natural world. 1 2. What promising approaches do you recommend for achieving implementation of an Earth- centered worldview for Earth-centered Law? (Note: depending on the discipline, approaches could also be theoretical, although practical approaches should be prioritized). I think there are different approaches that can further the implementation of an Earth-centered worldview in Law. The proposal for ecological governance of the natural commons (shared natural resources such as the atmosphere, the Arctic, Antarctica, migratory species, our collective genetic heritage etc.) based on a stewardship model by David Bollier and Burns Weston1 is very promising because it creates a practical governance model for natural commons that can be implemented at the local, regional, national and international level. Bollier and Weston have developed model laws for the implementation of their governance model at all these levels. Rights of nature provisions are an integral part of their governance model because ecological governance of the natural commons requires respect for the righs of nature, and the commoners can act as legal guardians on behalf of the natural commons and assert the rights of nature in court. The work of the Community Environmental Legal Defense Fund (CELDF) to help local communities draft rights of nature in their municipal ordinances is also a promising approach because it creates a practical legal and political tool to protect the rights of nature, and because it exposes the flaws of the (American) legal system in which corporate rights triumph human rights and ecosystem rights. The same goes for their work with governments and civil society abroad; I expand on this under my answer to question 4). I also think the increase of climate litigation is promising as a first stepping stone to an Earth- centred worldview, because climate litigation on behalf of current and future generations widens the circle of concern towards those who are not yet been born. It means that future generations have the right to enjoy the same basic living conditions as we do now, and that they have the same right to a clean and healthy environment, including a clean and healthy atmosphere, as we do. Therefore, States are under a legal obligation to reduce their CO2-emissions to hopefully prevent disastrous climate change from happening. Though climate litigation has an anthropocentric focus, successful cases result in establishing a duty of care towards the natural environment and I think it opens up our perspective to have a more inclusive idea of whose rights should be taken into account when we make decisions: not only those of current, but also those of future generations. This application of intergenerational justice can be a stepping stone towards acknowledging that nature also has rights and should be part of our circle of concern. 3 What key problems or obstacles do you see as impeding the implementation of an Earth- centered worldview in Earth-centered Law? A big obstacles is the violence against those who advocate an Earth-centered worldview and who show us that our current legal system is failing to protect the environment. Environmental human rights defenders are under attack: nearly four of them are killed every week according to the 2017 report Defenders of the Earth by the British NGO Global Witness.2 These environmental human 1 https://www.commonslawproject.org 2 https://www.globalwitness.org/en/campaigns/environmental-activists/defenders-earth/ 2 rights defenders are killed because they exercise their human rights – the freedom of speech, freedom of association, freedom of assembly, freedom to participate in decision-making, the right to work – to protect the environment. 40 % of these victims belong to indigenous groups. Indigenous peoples and traditional caretaker communities are on the frontline in the struggle to preserve, protect, restore and defend their natural commons and, in particular, territories and areas known as ICCAs (Indigenous Peoples’ and Community Conserved Territories and Areas) which they collectively conserve on the basis of their traditional knowledge and customary practices, law and institutions. These natural commons and ICCAs are at risk from extractive industries, infrastructure development, monocultures, poaching, commercial overfishing, land and water grabbing, wars and armed conflicts, imposed cultural change, and the privatisation and monetisation of natural resources in general. These indigenous Environmental Defenders are the keepers and voices of an Earth-centered worldview in cultural traditions that go back thousands of years. They are the 'whistleblowers' who are the first to signal the harmful consequences of exploitative extractive business practices and climate change, both of which are enabled by our current legal system that gives priority to the freedom of commerce and property rights and that sees nature as an object we are allowed to exploit and dominate. Silencing environmental human rights defenders means silencing the voices that demand we change our legal system towards putting the well-being of people and planet before profit. As says the Special Rapporteur on Human Rights Defenders, Michel Forst: “The fulfilment of the international community's commitment to the protection of the environment is premised on the empowerment of Environmental Defenders. The goals of a more sustainable, prosperous and equitable future – set out, for example, in the 2030 Agenda for Sustainable Development - are doomed to failure if the individuals and groups on the frontline of defending sustainable development are not protected at the national, regional and international level.3 Another big obstacle is the thought that we can reconcile the goal of (infinite) economic growth with social justice and environmental protection and call this 'sustainable development'. In international treaty law, sustainable development is an agreed objective of many international treaties, both at the global and regional levels. The problem is that this sustainable development is not understood as economic (and social) development within planetary boundaries and only as far as the Earth's ecological integrity is preserved. Rather, it is a vague and poorly defined principle of law which assumes that sustainable development can be accomplished when everything is taken care of—the environment is protected, the economy is developed and social equity is achieved. This view assumes that the three objectives are not really in conflict with each other and can be achieved simultaneously. However, if the preservation of the Earth‘s ecological integrity is the prerequisite for development, it sets limits to both economic and social development. The danger exists that efforts to implement an Earth-centered worldview in law are hijacked and then watered down by schools of sustainable development-thinking that interpret the goal of protecting the Earth for the sake of the Earth itself as something that can (still) be reconciled with the goal of uninhabited economic growth.
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