2019 Harmony with Nature – Theme: Earth

By Erika Solimeo – Earth-centered

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?

“In nature, there is no concept of waste. Everything is food for something else - a leaf falls from a tree and feeds the forest. Instead of simply trying to do less harm, we should aim to do good.” Ellen MacArthur Foundation

Given the profound unbalances and detrimental consequences that our highly anthropocentric and economic-oriented society has created, courts have been mainly ruling on delimiting, minimizing, compensating environmental harm once they already occurred. In order to switch this tardive mindset into responsive Earth Jurisprudence, I think that it is necessary to value Nature to build long term resilience and preserve it concretely from such infringements to happen.

Formally recognizing rights for Nature represents a first necessary step to move towards a more ecocentric view. However, I don’t see this approach alone as sufficient to ensure adequate implementation and enforcement of those entitlements. Due to the frequent entanglement among political and economic interests, the courageous formalization of Nature rights in the law-books and courts should be followed by a radical mind shift where, rather than supremacy over Nature, are simply considered as one component of the whole natural ecosystem. Therefore, it may be more than reasonable to learn from some indigenous population and broaden the concept of community to include also Earth’s ecosystems; not only as a way to empower rights (the right to a clean environment, the right to water, food, etc), but also to enhance the sense of commons and the environmental dimension of development that, in this way, would actually be sustainable.

Equally fundamental is also the inner transformation of the current institutional framework (both at the national and international level) to represent and defend Nature rights and interests through proper bodies. Innovative legal thinking already comes from some national jurisdictions in the Southern Hemisphere, where custodians and committees have been appointed to implement the protection of the Earth’s environment. However, I believe that an Earth Jurisprudence to be highly effective and able to honor human lifestyles truly in harmony with Nature should also emphasize the need for simplification in the international and national legal framework. Being often fragmented, sectorial, highly technical and of massive quantity, the current legal systems are not only of difficult understanding for those who do not possess legal expertise, but still are structured to exclusively preserve and be accessed mainly by states and corporations, at the expenses of the entitlements of vulnerable members of the community (local populations, future generation, natural environment).

1 Rethinking the way in which are structured does not mean from my perspective encouraging vague, minimal or simplistic laws but innovating the way they are framed and externally conveyed to be widely accessible to the society as a whole. As for the first aspect, I would like to stress the potential for laws to be related to deeply rooted values. Disregarding any intention to export at the global level religious and cultural traditions from local realities, an increasing number of studies have been recently evidencing higher level of enforcement for rules once they are embedded on shared values, leading as a consequence 1 to the limited need for written regulations by law. Customary rules from indigenous tribes (such as those in New Zealand, Bolivia, Ecuador) can be used as a confirmation of this argumentation. With reference to the second aspect, an interesting method to involve the broader population can happen through education and visual knowledge: laws can be shared for example through exhibitions, drawings, dancing or art in general.

In addition, the same concept of progress, still too much anchored to instant economic profit and unreasonable exploitation of natural resources requires a substantial reversal. Earth Jurisprudence can drive this change by emphasizing that respecting slower natural rhythms and its restoration rates generates more and stable growth for all the components of the community. In other terms, Earth Jurisprudence has the potential to replicate both the in the legal and economic vision the circular approach characterizing in prima facie ​ Nature, while guiding stakeholders and international actors how economic profit, social empowerment, and environmental protection can go hand in hand.

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).

From a traditional legal approach, I believe that both a coordinated recognition of Nature as ​ a living entity, entitled with specific legal rights, and a stricter system of duties for transgressors represent the minimum basis to lead towards broader implementation of an Earth-centred approach in law. Being a right-based society, several of the achievements we can be proud of have actually started with a revolutionary formalization of legal entitlements for specific categories of individuals/entities that were inconceivable beforehand.

On the other hand, the fact that the international legal system still lacks global and legally binding regulations on corporate liability is allowing TNCs to chase instant economic profits regardless of any consideration to massive environmental harm.

Clearly, to consolidate such entitlements/duties, it is recommended a degree of alignment ​ at a different scale (international, regional, and national) between different legal instruments (soft and hard laws). Rather than encouraging legal homogenization, however, what I think it is highly desirable is opening the floor to different actors (not only states, but

1 Samantha Ribas Teixeira, The environmental education as a path for global sustainability, ​ Procedia, Social and Behavioral Sciences 106 ( 2013 ) 2769 – 2774; Natalia Pirani Ghilardi-Lopes, ​ Flavio Augusto de Souza Berchez, Coastal and Marine Environmental Education, Springer Nature ​ ​ Switzerland AG (2019).

2 also NGOs, experts and local population), sharing knowledge and progressive legal ​ development of Nature rights, learning from each other’s experience and eventually adapting best practices to concrete contexts. In a sort of mutual inspiration, international solutions should be easily implemented at the national level, while the international community should intersect with the wisdom and traditional knowledge of indigenous people, where Nature is traditionally treated with respect and profound gratitude. And specifically from them, we could reinvigorate the connection between legal rules and inner ​ values. I believe that this approach, started with the debate on global ​ and continued in some national jurisdictions with the recent creation of Nature custodians (equally composed by government and locals’ representatives), can promote and accelerate such exchange.

Equally, comparative legal studies represent another valuable method to share with the ​ international society legal achievements and lessons learned, as well as encouraging the already frequent phenomenon of cross-reference among national jurisdiction and law cases. Given its global scale and complexity, Earth-centred laws cannot be successfully implemented without multidisciplinary cooperation and dialogue among technocrats from ​ different fields. Effectively preserving and enforcing Nature rights means combining together legal tools with scientific findings, economic evaluation, political interests, sociological considerations. Therefore, it requires heterogeneous team working where experts are able to communicate with each other and reach solutions that would actually work in the long term.

Finally and moving beyond any previous technical approach, I firmly believe that one of the most necessary approaches to speed up the implementation of Earth-centred laws is intensifying the direct contact between individuals and Nature. Time in Nature runs much ​ differently than the hectic lifestyle characterizing most of the economically developed countries, as well as natural cycles, where everything is perfectly in harmony with the All. Therefore I think that persisting in our intention to solve global environmental challenges simply through technical rigidity, without taking any time to live Nature in the first place, would only lead to illusions for a real, long-lasting change.

3. What key problems or obstacles do you see as impeding the implementation of an Earth-centered worldview in Earth-centered Law?

I think that the still fragmented comprehension of natural cycles represents the first barrier to an actual implementation of Earth-centered laws. How is it therefore possible to assess the reach of human interference to natural balances if we don’t even know most of its ecosystems or the interrelated connections among them? The fact that we have heavily exceeded our planetary boundaries reveals the weak role that the principles of prevention and precaution play compared to massive economic interests, as well as inadequate assessment of environmental impacts.

Equally, the difficulties to balance in practice all the three dimensions of sustainable development is not only exemplified in the archaic concept of progress pursued by transnational corporations (and aimed at instant financial profits) but also in the unquestioned power they maintain (control on the national political power and scientific

3 research institutes, inadequate legal regime on corporate environmental liability, insufficient transparency, limited access to for local populations).

Besides such imbalances, I believe that both our current silo mentality and deeply-rooted anthropocentric perspective towards natural ecosystems further hinder a comprehensive harmonization between human and Nature rights. With reference to the first aspect, it is easy to understand the direct relationship between sectorialism and constant conflicts among different stakeholders. The fact that intense oppositions to deep sea mining raised by fisheries, local population, research institutes, pharmaceutical industries, tourism, geoscientists do not come from common values (such as the detrimental effects on the marine ecosystem) but rather from the preservation of individualized economic interests illustrates such “all-against-all” scenario.

This is undoubtedly exacerbated by anthropocentrism, the second aspect that I think requires a profound inversion. The reference here is not only to the extreme approaches seeing natural resources as mere commodities to be unlimited exploited (therefore when no legal protection is granted to Nature itself). But concrete obstacles in the implementation of Earth-centered law are embodied also in the risks due to legal preservation of Nature only when this equally implements related human rights. Even within far-reaching judgments, most of the courts granting Nature legal personhood have been triggered prima facie by ​ human right infringements or limitations: the human right to live, to drink, eat, survive, or right to navigate. That is because the right of a healthy and clean environment is now widely recognized by the UN to be the other side of human rights. But the other way round is not that obvious. How would human custodians represent Nature rights in case their full implementation limits or collide with other human rights? Would Nature rights be preserved also when no economic, social or legal value is added to human needs?

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).

From my perspective, urgent prioritization should be given to:

- Strengthening the precautionary principle and the principle of prevention: acting before ​ natural balances are definitely compromised are of vital importance to direct again our society within the Planetary Boundaries. Earth Jurisprudence can play a pivotal role in this sense through stricter interpretation and implementation of such principles, for example by cross-referencing forward-looking judgments, or reinterpreting and updating such principles in light of the more recent legal contents (Universal Declaration of rights of Mother Earth, IUCN World Declaration on Environmental Rule of Law, Interactive ​ dialogue of the General Assembly on Harmony with Nature, etc.); - Stricter assessment of environmental impacts (both in the short and long term), that should be required before allowing or defining the scale of any anthropocentric intrusion ​ to the natural balance, including not only large scale extraction projects but also scientific research; - Creating platforms for multidisciplinary debate: it is evident that the way in which international environmental law is currently framed is not adequate to face and solve

4 the complexity and transboundary nature of environmental challenges. Legal developments cannot be separated from economic, cultural, societal, financial, scientific, engineering aspects. The same implementation of the SDGs into national contexts requires to increase the platforms for cross-disciplinary experts to work side by side, in order to reach well-functioning solutions in the long term and embrace the issue from a holistic perspective; - Global treaty on corporate liability: the transboundary essence of the natural ecosystem cannot represent the weak point used by TB corporation to pursue unpunished unsustainable practices. Economic compensation of environmental harm once occurred not only lacks any dissuasive function but do not play any role in eliminating or reducing the causes of such infringements. On the contrary, liability shall be structured to reach transgressors besides their TB nature as well as imposing complete restoration of the natural environment (considered including localized or connected taxa, targeted and dependent ecosystems) as it was before. In this sense, the implementation of in international criminal law may accelerate this process; - Increasing transparency in the decision making, maximizing the independence of the political powers from short term economic interests, facilitating access to environmental justice to the broader society. This latter aspect means not only streamlining costs, timing and methods, but also maximizing the protection for both environmental defenders and Nature per se; - Re-educating people to respect Nature: environmental education should be addressed to every member of the community, regardless of their age or geographical location. Although the degree of efficiency varies considerably according to religious, cultural and geographical tradition, for Western countries here are some suggestions. Younger generation can be involved in specific workshops after school or can be taught in practice environmental education as a proper subject (for example through practical experiences: vegetable gardens, waste cleaning, trips in the woods). But also adults (technocrats included) should be encouraged to spend more time in the open air, in order to rebalance the direct contact that humans have with Nature – this is an aspect that we have now almost totally lost. In other words, to re-learn and re-value Nature as an example of perfect cohabitation and balance, we should leave some of the theoretical approaches and embrace more concrete experiences in Nature.

Only when people will be driven by deep values, I believe that also the debate on legal inefficiency and legal infringements will be drastically reduced. And with it also the need for a plurality of additional priorities for action in a longer term.

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