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Earth Jurisprudence by Fernanda Cavedon

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Earth Jurisprudence by Fernanda Cavedon 2018 Harmony with Nature – Theme: Earth Jurisprudence By Fernanda Cavedon-Capdeville – 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? From an Earth Jurisprudence perspective, we must do the transition from environmental law to ecological law. Environmental law presents anthropocentric, fragmented and reductionist characteristics, representing limits to reach the objectives of this perspective. This ecological law adopts an ecosystemic perspective, its object is the protection of essential ecological process and the symbiotic relationship among all elements of the Earth community. Ecological approach to law is based on ecocentrism, holism, intra/intergenerational and inter species justice and is able to overcome fragmentation of law and its object and its incapacity to deal with complexity.1 I would like to consider this question from a human rights perspective because ecologization of human rights and its connections with rights of Nature is the subject of my recent research. In the perspective of Earth Jurisprudence, human rights are ecological rights too. The right to a healthy environment is considered as a right of the whole planetary community, of Nature itself, and not exclusively of the humans. Recognition and protection of the rights of Nature have the same importance as the realization of human rights, there’s no hierarchy among them. Natural rights and human rights are not counterpoint but complementary, reinforcing each other. The recognition and realization of a group of rights reinforces and contributes to the protection of the other group of rights. The rights of Nature and human rights reinforce each other and form a solid legal basis for the protection and realization of a broad dignity of all beings and elements of the planetary community. Ecologizing human rights is a process with different moments: i) attribution of an environmental dimension to traditional human rights; ii) affirmation of an autonomous environmental human right, represented by the formal recognition of a human right to the environment; (iii) the interpretation and application of human rights on the premise that they are rights of human beings as members of the planetary community, inserted in an environmental context from which they can’t be dissociated (interrelation between the integrity, quality and dignity of the nature and the possibility of realization of human dignity); iv) overcoming current limits of ownership, time and space imposed by rationality and traditional legal concepts, extending to collectivities, future generations and encompassing global issues and conflicts beyond the limits of power and territory; v) integration within a broader system of rights recognized to Earth as a whole and all members of the planetary community, characterized by mutual reinforcement and enrichment, considering that human rights and the rights of Nature are inseparable for the attainment of an expanded dignity which integrates the dignity attributed to the nonhuman elements of this community. The last two phases represent those that must still be achieved and reinforced within an Earth jurisprudence perspective. 1 For a better understanding of Ecological Law see the “Oslo Manifesto – From Environmental Law to Ecological Law: A Call for Re-Framing Law and Governance”, available in: > https://www.elga.world/oslo-manifesto/> 1 About the difference from how Earth-centered Law is practiced now, considering the perspective of ecologized human rights, we must consider that, although some advancements in the recognition of rights of Nature and an environmental dimension of traditional human rights and a human right to the environment, these perspectives are developing separately and in a parallel way. We must advance in the integration of the systems of human and Nature’s rights and the construction of a one large and connected system of rights to provide the protection of an amplified dignity of all members of the Earth community. They can be perceived as complimentary and mutually reinforcing. In my point of view practicing Earth- centered Law from an Earth Jurisprudence perspective can promote this connection and contribute do develop this enlarged system of rights. 2. What promising approaches would 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). - To involve and consider indigenous and other traditional knowledge and their contribution to design and implement an Earth-centered worldview for Earth-centered Law, more interdisciplinarity and diversity of sources and information in elaboration of policies and law in environmental matters. - To transpose from environmental law to ecological law and governance, based on ecological justice paradigm. - Recognize ecological integrity as a fundamental principle of law. - Ecologization of human rights and its connection with the rights of Nature, developing a broader rights system based on an expanded conception of dignity for all members of the Earth community. - Ecological Justice must be adopted as the paradigm of justice to guide the process of transition from environmental law to ecological law as an expression of Earth-centered Law. - Adopt the conception of a strong sustainability instead of the idea of sustainable development that put in equal conditions the three pillars (economic, social and environmental). Strong sustainability considers that economic, social and cultural pillars depend on the environment to be realized. These pillars are inside of the environmental one. To develop these approaches and put them in practice, I consider that it is necessary to: - Reinforce a global network of practitioners, academics, social movements and traditional communities in order to share knowledge, experiences and research capable to design the contours of an ecological law and the enlarged rights systems centered in an amplified dignity expanded to all members of the planetary community and the relations and synergies among them. The knowledge constructed together in this network can help to design public policies and regulations in different levels in the perspective of the Earth-centered Jurisprudence. - Stimulate and organize capacity building on this perspective, capable to contribute in the implementation of the Earth-centered worldview in legal matters: practitioners, members of government, policy makers, etc. 2 - As we have special courts to defend and protect human rights, the rights of Nature must be protected by special courts in a similar matter. - Promote better articulation among actors, institutions and initiatives on human rights and rights of Nature. - Develop reflections and advocacy on how to integrate an ecological perspective of law in international environmental agendas as climate, sustainable development and others. - Create a group of teachers and researcher to develop new ways to teach law and review the traditional way in which law disciplines are organized and taught in order to discuss and integrate environmental issues based in the paradigm of ecological justice and non- anthropocentric perspective in the legal programs formations. 3. What key problems or obstacles do you see as impeding the implementation of an Earth-centered worldview in Earth-centered Law? - Lack of training and information of legal practitioners (judges, prosecutors, lawyers) in this Earth-centered Law perspective. - Obstacles of legal technique, since the law in its current format aims to reduce complexity in an opposite way of an ecological and eco-systemic approach, the fragmentation of law and its object. - Lack of integration and coordination among actors and agendas, specially of the program « In Harmony with Nature » with other mandates of the United Nations System. - Gaps in research and law systems concerning rights of Nature and ecological justice. - Prevalence of an anthropocentric vision of law and policies that reduce complexity and fragment its object, focusing on weak sustainability. They are not able to cope with the great challenges posed to humanity in this century, as climate change. 4. What are the top recommendations for priority, near-term action to move Earth- centered Law toward an Earth Jurisprudence approach? What are the specific, longer- term priorities for action? (Note: give 3 to 10 priorities for action). - To establish a group of human rights and rights of Nature experts to explore possibilities for integration between these two rights systems, based on Earth-centered Jurisprudence perspective, so that this issue is integrated into the agenda of United Nations human rights system, especially the work of the Special Rapporteur on human rights and the environment, as well as in the regional human rights systems. - Create a specific research program under the auspices of the United Nations to identify the gaps and possibilities for development of the Earth Jurisprudence approach and Ecological Law in international environmental law and, more generally, in international priority agendas. - Verify the possibilities to create or review institutional designs and innovations necessary to promote the Earth Jurisprudence approach. - To coordinate a network
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