Abstract

Governments around the world are adopting laws granting Nature rights. Despite expressing common meta-norms transmitted through transnational networks, rights of Nature (RoN) laws differ in how they answer key normative questions, including how to define rights-bearing Nature, what rights to recognize, and who, if anyone, should be responsible for protecting Nature. To explain this puzzle, we compare RoN laws in three of the first countries to adopt such laws: Ecuador, the US, and New Zealand. We present a framework for analyzing RoN laws along two conceptual axes (scope and strength), highlighting how they answer normative questions differently. The article then shows how these differences resulted from the unique conditions and processes of contestation out of which each law emerged. The article contributes to the literature on norm construction by showing how RoN meta-norms circulating globally are infused with differing content as they are put into practice in different contexts, setting the stage for international norm contestation.

Since 2006, governments around the world have adopted legal provisions (laws and court rulings) recognizing Nature as a subject with inalienable rights. Rights of Nature (RoN) legal provisions now exist in Brazil, Bolivia, Colombia, Ecuador, India, Mexico, New Zealand, and the US, where at least ninety-six subnational RoN legal provisions have been adopted or are pending.1 These legal provisions reflect emerging global meta-norms regarding humans’ relationship to (and obligations toward) Nature that challenge dominant anthropocentric development norms.2 Initiatives also exist to recognize RoN internationally, including the UN Harmony with Nature Programme, the Universal Declaration of the Rights of Mother Earth, and the proposed International Environment Court.

The first countries to adopt RoN laws did so in rapid succession (the US in 2006; Ecuador in 2008; Bolivia in 2010; New Zealand in 2014). The temporal clustering and common normative underpinnings suggest policy diffusion or isomorphism are at work, which should produce similar laws. Yet, despite a common RoN discourse transmitted through transnational networks, early RoN laws institutionalize different answers to key normative questions, such as how to define rights-bearing Nature, what rights to recognize, who can speak for Nature, and whether someone should be responsible for protecting Nature’s rights. Table 1 compares these and other differences among early RoN laws.

Table 1 
Indicators of Scope and Strength of Rights of Nature Laws
 EcuadorUS (Pennsylvania)aNew Zealand
Scope 
How is Nature defined (framed)? All of Nature; Pachamama (Mother Earth) Ecosystems in municipality (natural community) The Whanganui River; Te Urewera Forest (living spiritual beings) 
Which rights? To exist and maintain ecosystem integrity; restored when damaged To exist and “flourish” Legal personhood status 
Strength 
Type of law/legal standing Constitution (maximum legal standing) Municipal ordinances (subordinate to state and federal law); home rule charters (legal standing unclear) Acts of Parliament (parliamentary supremacy) 
Hierarchy of rights RoN declared transversal Places RoN over corporate rights Not explicitly addressed 
Who represents Nature? Everyone City/municipal citizens Appointed guardians 
Mandated responsibility for protecting Nature? No No Yes 
 EcuadorUS (Pennsylvania)aNew Zealand
Scope 
How is Nature defined (framed)? All of Nature; Pachamama (Mother Earth) Ecosystems in municipality (natural community) The Whanganui River; Te Urewera Forest (living spiritual beings) 
Which rights? To exist and maintain ecosystem integrity; restored when damaged To exist and “flourish” Legal personhood status 
Strength 
Type of law/legal standing Constitution (maximum legal standing) Municipal ordinances (subordinate to state and federal law); home rule charters (legal standing unclear) Acts of Parliament (parliamentary supremacy) 
Hierarchy of rights RoN declared transversal Places RoN over corporate rights Not explicitly addressed 
Who represents Nature? Everyone City/municipal citizens Appointed guardians 
Mandated responsibility for protecting Nature? No No Yes 
a

We acknowledge variation in US RoN laws. The table presents the most common characteristics.

We argue that these different institutional expressions of RoN meta-norms were produced through the process of applying ideas circulating globally in distinct socioeconomic, political, and legal contexts. Employing inductive reasoning and comparative historical analysis in Ecuador, the US, and New Zealand, we identify three important domestic contextual differences: the openness of national political opportunity structures, the types of organizations and sociopolitical alliance structures driving the process, and the cultural framing used to mobilize support. Together, these factors shaped how RoN was contested and expressed institutionally.

This article makes three contributions. First, it presents a conceptual framework for comparing RoN laws. Second, it contributes to the literature on norm construction by identifying specific conditions that lead global meta-norms to be constructed differently at the national level, fueling norm construction and contestation at the international level. Third, the article challenges conventional portrayals of norm diffusion as being characterized by unidirectional flows of influence, whether international–local, North–South, or South–South. Rather, this article shows how the norm construction process occurs simultaneously at the domestic and international levels, with influence moving in multiple directions.

Research Design and Methodology

To illustrate this process of norm construction, we compare six different RoN laws from three countries: the US, New Zealand, and Ecuador. We look at these countries both because they constitute very different systems (varying by level of economic development, political/legal system, geography, demographics, culture, and other factors) and also because these are the places where the process of institutionalizing RoN norms has advanced the furthest, thereby providing the most data for analysis.

Ecuador’s 2008 Constitution recognizes rights for all of Nature. New Zealand has two national laws—the Te Urewera Act (2014) and the Te Awa Tupua Act (2017)—each of which grants rights to a particular ecosystem. In the US, subnational governments have adopted laws recognizing RoN in their jurisdictions, including municipal ordinances, home rule charters, and state constitutional amendments. We analyze ordinances adopted by three Pennsylvania municipalities: Tamaqua Borough, Highland Township, and Grant Township. We selected these US cases because each is pioneering in its own way and because they served as models for subsequent US RoN laws. Tamaqua’s ordinance was the world’s first RoN law (adopted in 2006). Highland and Grant townships’ laws were the first to be challenged in the US court system, prompting adaptation.

We employed comparative historical analysis and process tracing to identify key factors that led processes of RoN norm construction in each case to evolve along distinct paths, producing distinct institutional expressions. Our analysis draws on hundreds of primary and secondary documents as well as scores of in-depth interviews conducted over several years of fieldwork in Ecuador (2014–2015), New Zealand (2016), and the US (2014–2017).

Constructing RoN Norms Through Practice

Predominant models of policy and norm diffusion generally seek to explain why policies look the same across countries.3 Moreover, norm diffusion models tend to view norm content as “static and unitary” and to explain the clustering of norm adoption as the result of top-down processes by which established international norms diffuse to the local level (Krook and True 2012, 106–108). The World Polity model, for example, explains countries’ simultaneous adoption of similar policies and institutions due to their embeddedness in world society, which promotes cultural processes of isomorphism through identity construction, learning, and imitation (Meyer et al. 1997). International norms are treated as “exogenous models” that are “not strongly anchored in local circumstances” (Meyer et al. 1997, 156). Much of the rest of the norm diffusion literature explains the clustering of norm adoption as resulting from either the bandwagoning of states that imitate influential states (Finnemore and Sikkink 1998, 893) or the pressure and persuasion exerted by transnational activist networks of norm entrepreneurs (Keck and Sikkink 1998), epistemic communities (Haas 1992), states (Jinnah and Lindsay 2016), or intergovernmental organizations (Flockhart 2005). As we will show, most of these diffusion mechanisms are evident in the US, Ecuador, and New Zealand, making the distinct institutional expressions all the more surprising.

Global RoN Meta-Norms

While RoN laws only emerged recently, RoN’s normative foundations have developed over centuries in both Western and non-Western cultures (Kauffman and Martin 2017). These include humans’ obligation to live in harmony with Nature (respecting the reciprocal relationship), legal standing for Nature, Nature’s right to exist and be restored, and ethical arguments for reenvisioning a broader rights framework for the planet.4

Global networks to develop and promote RoN (also called Earth jurisprudence) began forming in the 1980s, initially in the Global South through Indigenous movements mobilizing to protect Mother Earth. Throughout the early 2000s, institutions and centers for Earth jurisprudence formed in the UK, South Africa, Australia, New Zealand, the US, and elsewhere (Boyd 2017; Kauffman and Martin 2017). The Global Alliance for the Rights of Nature (GARN) was established in 2010 as a coordinating body for activists and organizations working to apply RoN in domestic and international law. The UN Harmony with Nature Programme, created by the UN General Assembly in 2009, similarly serves as a central node linking transnational networks of RoN experts and facilitates the development of RoN norms within the UN system.

RoN meta-norms are now expressed in UN Secretary-General reports (e.g., United Nations 2013), UN General Assembly resolutions (including the 2015 resolution A/RES/70/208 to develop Earth law), Pope Francis’ 2015 encyclical Laudato Si; and international forums for discussing climate change and the 2030 Sustainable Development Agenda. One of the clearest expressions is the Universal Declaration of the Rights of Mother Earth (UDRME),5 promulgated by 35,000 people from 140 states at the 2010 World People’s Conference on Climate Change and the Rights of Mother Earth (Kauffman 2017, 197). At its Quadrennial Congress in 2016, International Union for Conservation of Nature (IUCN) members committed themselves to take action to implement RoN during the next four years (International Union for Conservation of Nature 2016).

In contrast to dominant development norms, which view humans as separate from Nature, global RoN meta-norms consider all components of Nature, including humans, to have inherent rights. Like all norms, RoN norms state what humans should do, reflected in the UDRME’s section on “Obligations of Human Beings to Mother Earth.” These include, among other things, “respecting and living in harmony with Mother Earth,” acting in accordance with the RoN, and ensuring “that the pursuit of human wellbeing contributes to the wellbeing of Mother Earth.” This charge is expressed in a 2013 report by then UN secretary-general Ban Ki-Moon, who criticized perpetual economic growth and made a normative argument for creating a new development paradigm based on ecological economics and RoN (United Nations 2013, 26–27).

Norm Construction in Unique Environments

Since RoN norms are expressed internationally, why do the world’s early RoN laws look so different? To answer this question, we use pragmatist theories of institution building to build on recent research on norm construction that examines processes of contestation, experimentation, adaptation, and learning (Krook and True 2012; Sandholtz 2008; Van Kersbergen and Verbeek 2007; Wiener 2004). As Krook and True (2012, 104) note, “the norms that spread across the international system tend to be vague, enabling their content to be filled in many ways and thereby to be appropriated for a variety of different purposes.” This is consistent with pragmatist theories of institution building, which explain how institutional designs evolve through contestation, experimentation, adaptation, and learning, causing institutions to reflect the outcomes of experimentation in distinct contexts (Berk and Galvan 2013; Abers and Keck 2013). Before identifying the factors that caused norm construction processes to vary across our cases, we first describe variation in the outcome—how RoN laws differ in important ways that shape how RoN norms are practiced and thus constructed.

Comparing RoN Laws

We compare RoN laws in the US, Ecuador, and New Zealand using indicators of two concepts: scope and strength (see Table 1). Scope refers to the range of rights afforded and how broadly these rights are applied. This has normative implications regarding how Nature is conceptualized and defined in practice. Strength refers to enforcement capacity expressed through laws’ formal authority and individuals’ capacity and responsibility to enforce Nature’s rights.6 In this section, we compare the laws in our sample along these two conceptual axes.

Scope: Defining Rights-Bearing Nature

All RoN laws treat Nature as a legal personality, conceptualize Nature at the ecosystem level rather than by individual flora and fauna, and at least implicitly recognize that humans are part of these ecosystems. Yet, they differ in how expansively they define rights-bearing Nature.

Ecuador’s Constitution is the most expansive. The Constitution’s Preamble defines Nature as the Andean Indigenous deity “Pachamama [translated as Mother Earth], where life is reproduced and occurs” (Republic of Ecuador 2008). No other definition is offered, purposefully leaving the definition expansive. Interviews with people who crafted Ecuador’s RoN provisions show that they intended to portray Nature’s rights as being inherent to all of the Earth’s ecosystems, including those beyond Ecuador’s borders. This is evidenced by the 2010 lawsuit submitted to the Ecuadorian Constitutional Court by Ecuadorian RoN activists. It invokes universal jurisdiction to sue British Petroleum for environmental damage resulting from its 2010 oil spill in the Gulf of Mexico (El Universo2010). While the court declined to hear the suit, the Constitution’s expansive definition of Nature remains.

By contrast, New Zealand’s RoN laws only grant RoN to particular ecosystems: the Whanganui River (Te Awa Tupua Act) and the forest Te Urewera (Te Urewera Act). The laws explicitly define the boundaries of these ecosystems and restrict legal personality to them. However, like Ecuador’s Constitution, New Zealand’s RoN laws recognize the ecosystems as living spiritual beings. This similarity results from the leading role played by Indigenous groups in both countries and efforts to codify their non-Western understandings of humans’ relationship to Nature within a Western legal framework. One consequence is that elements considered to be nonliving in Western science (e.g., rocks, soil, and water) are legally defined both as living and having metaphysical characteristics that make them deserving of moral consideration.

US RoN ordinances do not frame ecosystems as living spiritual beings but rather as sets of “natural communities” whose welfare is necessary for the well-being of human communities.7 Most US ordinances define Nature as some combination of wetlands, streams, rivers, aquifers, soil, and native species of flora and fauna. Like New Zealand’s laws, the US laws restrict legal personhood status to specific ecosystems (those within municipal boundaries).

Scope: Which Rights Are Granted?

Most important, from a norm construction perspective, RoN laws vary in the specific rights granted. Ecuador’s Constitution reflects a holistic approach to conceptualizing Nature’s intrinsic value and an emphasis on maintaining balance within natural systems. Title II, chapter 7 grants Nature the rights to exist, to maintain its integrity as an ecosystem, and to regenerate “its life cycles, structure, functions and evolutionary processes” (Republic of Ecuador 2008). Nature also has the right to be restored if injured, independently of human claims for compensation (Articles 71–73).

Many US RoN ordinances go a step further and also grant Nature the right to “flourish.” This distinction has important implications for determining violations of RoN (and thus which actions humans are obliged to prevent). Humans invariably impact the ecosystems they live in. Under Ecuador’s Constitution, human impacts do not violate Nature’s rights so long as they do not irreparably damage the integrity of an ecosystem to the point where it cannot regenerate itself. One author of Ecuador’s RoN provisions likened the distinction to the difference between breaking your arm (a temporary damage that will heal naturally) and the permanent damage of cutting off your arm.8 By contrast, the right to flourish switches the emphasis from preventing permanent damage to ensuring some level of well-being for an ecosystem. US ordinances do not define what it means to flourish, but they open the possibility of a much more restrictive definition of which human impacts are acceptable. Metrics that regulators could use to measure ecosystem flourishing are currently being constructed (Kauffman and Sheehan, forthcoming).

In contrast, New Zealand’s two laws simply recognize Te Awa Tupua (the Whanganui River) and Te Urewera (the forest) as legal persons with “all the rights, powers, duties, and liabilities of a legal person” (Te Awa Tupua Act 2017, clause 14; Te Urewera Act 2014, Article 11). These rights grant procedural access to New Zealand’s political and legal systems. For example, these ecosystems can own property, incur debts, petition the courts and administrative agencies, and receive reparations for damages, should a court rule in their favor. However, the laws do not guarantee the ecosystems’ right to maintain their integrity or be restored, much less to flourish.

Strength: Type of Law and Legal Standing

RoN laws challenge the interests of powerful economic actors, who themselves have legally recognized property rights. Consequently, RoN are often challenged in court. One measure of strength is whether RoN norms are enshrined in laws that have strong legal standing within a country’s political system. Formally, Ecuador’s constitutional RoN provisions are extremely strong; they have the highest legal standing, although they can conflict with other constitutional rights. Because New Zealand’s political system recognizes parliamentary supremacy, national acts have superior legal standing. By contrast, US municipal ordinances may be preempted by state constitutions and/or the US Constitution.

These institutional differences matter because it is one thing to institutionalize a new norm into law but quite another thing to strengthen emerging norms through practice. In the early stages of a norm’s life cycle, when a norm remains highly contested, laws often are not applied in ways that support the norm (Dancy and Michel 2015). For this reason, an important informal measure of strength is whether RoN laws have been challenged in court and, if so, if the laws have been upheld and applied in practice. This is affected by RoN laws’ position in the larger legal structure.

RoN jurisprudence has developed the furthest in Ecuador—unsurprisingly, given its constitutional protections and status as an early adopter. Between 2008 and 2016, twelve lawsuits invoked RoN. In nine cases, the courts upheld the RoN. Elsewhere, we document these lawsuits and explain why RoN were upheld in some cases and not others (Kauffman and Martin 2017). By contrast, US RoN ordinances have yet to be upheld by a court, illustrating the weakness of local RoN laws within the US federal system. However, we show how contestation in US courts has led to experimentation and the evolution of RoN laws’ institutional design. The New Zealand cases are among the most recent and remain untested. As we describe, however, New Zealand’s laws recognize competing rights and balance anthropological and ecological concerns. If other countries’ experiences are any guide, the application of RoN laws will produce conflict, which provides a creative force for RoN norm construction.

Strength: Responsibility for Defending Nature

RoN laws also vary in who can legally represent Nature to protect its rights—and whether anyone is obligated to do so. Theoretically, when authority to represent Nature is distributed broadly, the barriers to defending Nature’s rights are lower. Ecuador’s Constitution grants legal representation most broadly. Article 71 states that “all persons, communities, peoples and nations can call upon public authorities to enforce the rights of Nature.” Anyone, Ecuadorian citizen or not, can bring suit to defend the RoN. The US ordinances are somewhat more restrictive, limiting legal representation to citizens of the city or township. While both countries’ laws empower many people to protect Nature by invoking RoN, the laws do not require anyone to do so, potentially weakening them compared to New Zealand’s laws.

New Zealand’s laws emphasize the concept of responsibility more than rights. The laws create statutory guardians charged with promoting and protecting the interests, well-being, and rights of the river Te Awa Tupua and the forest Te Urewera. While this legal design limits who can represent Nature, advocates argue that the guardianship model is stronger because it appoints representatives who are legally mandated to advocate for Nature’s interests and protect its rights, not only in courts but also in policy and social forums (Iorns 2017, 1).

Strength: Hierarchy of Rights

Another measure of strength is the degree to which RoN laws define the relationship between RoN and other types of rights, particularly property rights. The US ordinances are the strongest in this respect, limiting the rights of corporations and subordinating them to the RoN. In Ecuador, court rulings have established the principle that RoN are transversal, meaning that they are connected to and impacted by all other elements of the legal order, and therefore are more fundamental than property rights (Kauffman and Martin 2017). In 2015, this principle was upheld by Ecuador’s Constitutional Court. Citing Articles 83 and 395 of Ecuador’s Constitution, the Court determined that “all the actions of the State, as well as of individuals, must observe and be in accordance with the rights of Nature” (Ecuadorian Constitutional Court 2015, 12). Based on this reasoning, the Court rejected arguments that private property rights trump RoN.

The hierarchy of rights in New Zealand’s Te Awa Tupua Act is less clear. On one hand, Part 2, clause 16 states that the act does not limit private property rights. On the other hand, the act establishes legal weighting provisions specifying that any actor whose actions affect the river must “have particular regard to” the interests of the river and “recognize and provide for” the river’s status as an indivisible, living, whole spiritual being. Moreover, resource use in Te Awa Tupua (Whanganui River) is subject to the Resource Management Act, which balances ecocentric values against more anthropocentric concerns (Barraclough 2013). Specific conflicts would ultimately have to be resolved through New Zealand’s court system.

The hierarchy of rights is handled somewhat differently in the Te Urewera Act. Te Urewera is not subject to the Resource Management Act because it was formerly a national park governed by special Conservation Department provisions. For the same reason, there is no private property. Consequently, a Te Urewera Board has full authority to determine management of the forest and is charged with doing so according to ecocentric principles that protect the right of Te Urewera to have its interests considered and to be treated as an integrated, living, spiritual being. It is this autonomy of the Te Urewera Board, along with the charge of managing in the interests of Te Urewera, that makes the Te Urewera Act stronger than the Te Awa Tupua Act in terms of prioritizing Nature’s rights.

Construction and Contestation of RoN Laws

Why are RoN norms constructed and institutionalized so differently? In this section, we trace the independent origin of early RoN laws, highlighting how differences in local context shaped their expression. Our analysis of the case comparisons suggests three key differences. First, variation in the political opportunity structure for creating national environmental laws determined the type of law created and, consequently, its strength within the existing legal framework. Second, different types of organizations supported RoN laws to achieve distinct motivations and goals, and they developed different coalitions based on their position in larger sociopolitical alliance structures. This variation influenced the contestation around RoN and thus how it was defined and framed. Third, variation in cultural values influences the kinds of frames used to mobilize support. Differences in these second and third factors explain why RoN laws differ on important normative questions, such as how to define rights-bearing Nature, what rights to recognize, who can speak for Nature, and whether someone should be responsible for protecting Nature.

The following case studies describe how variations in these three domestic conditions produced the unique institutional outcomes detailed earlier in this article. Since the 1980s, partisan gridlock in the US Congress has obstructed the passage of new, stronger environmental laws. Consequently, national networks of environmental lawyers seeking RoN laws allied with grassroots activists seeking to challenge corporate exploitation of local ecosystems. This produced local laws framing RoN as an expression of community rights and a tool for strengthening democracy. In Ecuador, the writing of a new constitution in 2007 opened a window of opportunity for an alliance of environmental NGOs, Indigenous movements, and leftist political movements to codify a postneoliberal development model infused with Indigenous concepts. The constitution recognizes RoN as a tool for achieving this new development model, creating a strong legal foundation and framing RoN in terms of Indigenous conceptions of nature and a postneoliberal development model based on living in harmony with Nature. The New Zealand government’s process for settling treaty violations with Māori iwi similarly opened a window of opportunity. Contestation between the Crown government and Māori iwi caused RoN laws to emphasize Māori understandings of ecosystems as living ancestors and the responsibility of guardianship. Together, the cases highlight how distinct RoN laws evolved through contestation, experimentation, adaptation, and learning.

US RoN Laws

The first US RoN ordinance has its roots in the work of the Community Environmental Legal Defense Fund (CELDF). CELDF was formed in 1995 by environmental lawyers who concluded that existing environmental laws were inadequate. They advocated new laws that prevented environmental harm (rather than merely mitigating it) and that strengthened the rights of communities to protect themselves from environmental degradation caused by industrial activity. Influenced by the work of Christopher Stone (1972) and others, they saw RoN as an important legal tool for achieving these goals.

CELDF recognized that they faced a closed national political opportunity structure at the federal level and so shifted contestation to local political arenas. CELDF established a new approach to grassroots organizing centered on Democracy Schools that trained community residents “to confront the usurpation by corporations of the rights of communities, people, and earth.”9 CELDF began helping communities develop community bills of rights that could provide a legal basis for residents to defend their interests against corporations that invoked property rights to justify environmentally destructive behavior. Framing RoN as a way to defend local democracy was effective because of its cultural resonance in the US. Importantly, this framing has resonated not only in liberal communities known for environmental activism but also in conservative communities like Tamaqua Borough, Pennsylvania (Linzey 2017).

In 2006, a local supervisor for Tamaqua Borough named Cathy Miorelli attended a CELDF Democracy School. Miorelli was concerned about a planned new sewage sludge deposit facility in the borough. A nurse, Miorelli had been studying the increasing incidences of cancer in her vicinity and gathered evidence of a cancer linked to industrial toxins like benzene. Since her community bordered three superfund sites, she worried that contamination by yet another facility would put residents at even more risk. Inspired to take action, Cathy ran for and won a seat as a local supervisor and attended CELDF’s Democracy School.

After the experience, Miorelli said, “I realized that we could act on what we wanted most and put together an ordinance that would prevent contaminants from coming into our town.”10 Miorelli arranged for CELDF representatives to meet with the Tamaqua Council and draft an ordinance recognizing RoN as part of a set of community rights. Miorelli, the mayor, and the council of supervisors held several town meetings to educate the public and mobilize popular support. Despite the threat of lawsuits against the town and individual supervisors, Tamaqua Borough passed the world’s first RoN ordinance in 2006 (Tamaqua Borough 2006).

The Tamaqua Borough Sewage Sludge Ordinance was novel in that it considers natural communities and ecosystems to be legal “persons” and explicitly denies the same recognition to corporations. This is to limit corporations’ rights to interfere “with the existence and flourishing of natural communities or ecosystems” (Tamaqua Borough 2006, 4). The ordinance treats RoN as a tool for strengthening community rights vis-à-vis corporate property rights so that community members can ensure that their community (human and natural) is healthy and flourishes.

CELDF has since developed a national network of organizations dedicated to strengthening community rights and has worked with dozens of communities across the US to pass similar RoN ordinances. Many of these are designed to prevent environmental damage caused by hydraulic fracturing (fracking). CELDF’s approach is novel because it takes environmental protection out of the regulatory realm and moves it to the legal realm, where fracking can be banned as a violation of the rights of communities and Nature. However, it remains unclear whether the legal standing of local RoN ordinances will be recognized by courts.

Contestation between communities and corporations is producing experimentation with new ways to institutionalize RoN. For example, ordinances invoking RoN to ban fracking in Grant and Highland townships, Pennsylvania, have been challenged in court by affected energy corporations. In the Grant case, the judge ruled that the ordinance overstepped the legislative boundaries of a municipality. Undeterred, residents experimented with a new institutional expression of RoN norms—a home rule charter. A legal tool applicable in forty-three US states, home rule charters are municipal constitutions that override the second-class status of a municipality to a US state (Russell and Bostrom 2016). In 2015, Grant Township passed its home rule charter to circumvent the preemptive nature of state constitutions over municipalities. Highland Township soon followed suit. The Pennsylvania Department of Environmental Protection (DEP) sued the county for banning wastewater injection wells permitted by the DEP. While still pending, the US cases illustrate how RoN laws are evolving through contestation, experimentation, and learning and how RoN laws can be used to strengthen norms over time.

Ecuador’s RoN Laws

Talk of legalizing RoN in Ecuador dates back at least to the 1990s, when Ecuadorian citizens sued Texaco in US federal court for oil pollution in the Northern Ecuadorian Amazon. Amid the lawsuit, Indigenous groups and environmental NGOs like Acción Ecológica discussed codifying for Western legal purposes the Indigenous cosmovision that Nature is sacred, possesses its own rights, and is part of a living community in which humans exist (Martin 2011). During the 2000s, these discussions were linked to the global discourse on RoN through transnational networks of antiextactivist organizations like Oilwatch (Martin 2011).

Ecuador’s constitutional RoN provisions resulted from changes in the political opportunity structure created in 2006 when Rafael Correa was elected president. After a decade of extreme political and economic instability, Correa rose to power on the promise to fundamentally remake Ecuador’s political and economic systems. A key step was rewriting the country’s constitution in 2007. Importantly, Correa incorporated many members of the antioil extraction community into his cabinet, including Alberto Acosta, who became president of the Constituent Assembly.

The process of writing Ecuador’s new constitution was remarkably participatory. Civil society submitted more than 3,000 proposals, which were considered by the Constituent Assembly.11 This process provided a window of opportunity for Indigenous, campesino, and environmental groups that had long fought to protect their communities from the environmental damage caused by industrial extractivism. Within the Constituent Assembly, they sought to ban extractivism and replace it with an alternative development approach that recognized the intrinsic value of Nature and provided for human well-being by ensuring the well-being of the larger biotic community.12 To this end, various lawyers, activists, and scholars proposed recognizing RoN. Acosta supported the idea and guided it through the constitution-writing process.

Due to their place in Correa’s coalition, Ecuadorian Indigenous movements had a substantial influence on the constitution and shaped the framing of RoN (Becker 2013). Ecuador’s constitution pledges to build a new form of sustainable development based on the Andean Indigenous concept of sumak kawsay (translated into Spanish as buen vivir), which is rooted in the idea of living in harmony with Nature (Chuji 2014; Oviedo 2014; Eisenstadt and West 2017). Consequently, the Preamble defines Nature as Pachamama and presents a guiding principle for the new development approach: that humans are part of Nature and thus Nature is a vital part of human existence. Ecuador’s constitution presents buen vivir as a set of rights for humans, communities, and Nature and portrays RoN as a tool for achieving a postneoliberal development model rooted in the concept of sumak kawsay. This framing explains the expansive definition of Nature, the focus on maintaining balance and equilibrium within the larger biotic community, the recognition of human impacts on Nature, and the obligation to offset human impacts through restoration.

After the constitution was adopted, the process of creating the secondary laws and institutions needed to give form to constitutional RoN principles was obstructed by conflict among Correa’s original coalition members. While Indigenous and environmental groups wanted to strengthen RoN to prevent extractivism, Correa and other socialists advocated expanding mining and oil extraction to finance poverty reduction programs. This political conflict obstructed the passage of secondary RoN legislation and channeled contestation over how RoN should be interpreted and applied through the courts.13

Detailing the evolution of RoN jurisprudence through the courts is beyond the scope of this article, and we do this elsewhere (Kauffman and Martin 2017). We note here only that the constitution provided a strong legal basis for protecting RoN norms despite political and economic opposition. This is illustrated by the fact that Ecuadorian judges have begun to unilaterally apply RoN in their sentencing, even when neither claimants nor defendants invoke RoN (Kauffman and Martin 2017). They do so because their professional standards require them to protect the constitution and interpret the law in its entirety.14 Over time, court rulings have strengthened RoN jurisprudence, including establishing the precedent that economic interests cannot take precedence over the RoN (Ecuadorian Constitutional Court 2015). While constitutional RoN provisions have not ended extractivism in the country, Ecuador illustrates the outcome of years of meta-norm development and a distinct application at the national level forged through contestation, adaptation, and evolution through court rulings.

New Zealand’s RoN Laws

New Zealand demonstrates a third, distinct path to institutionalizing RoN norms. New Zealand’s RoN laws emerged through the process of resolving long-standing disputes over the 1840 Treaty of Waitangi between New Zealand’s Crown government and two Māori iwi (tribes). During the 1960s and 1970s, New Zealand underwent a “Māori Renaissance,” including a Māori protest movement demanding redress for treaty violations and the ability for Māori iwi to protect and manage their ancestral territories. During the 1990s, the government began negotiating settlements of historical claims with individual iwi.

Treaty settlements opened a window of opportunity for creating RoN laws by codifying Māori conceptions of Nature into New Zealand law. Iwi trace their ancestral lineage to a common ecosystem, which they view as a living, spiritual being. Māori generally do not emphasize the concept of rights, since they do not conceptualize Nature as property. Rather, they emphasize the concept of guardianship resulting from their duty to care for their ancestor. Consequently, both the substance and framing of New Zealand’s RoN laws are different from those in Ecuador and the US.

New Zealand’s two RoN laws resulted from treaty settlements with the Whanganui iwi, regarding the Whanganui River (Te Awa Tupua), and the Tūhoe iwi, regarding the forest Te Urewera. The same Crown negotiators and lawyers worked on both settlement processes simultaneously (an unusual circumstance), which allowed learning and the diffusion of ideas across the two negotiations. In both cases, recognizing Nature as a legal person with rights was conceived as a strategic tool for overcoming unique obstacles to settlement. In other words, they resulted from contestation, adaptation, and learning.

The idea to grant Nature legal personality arose first in the Whanganui negotiations.15 After talks stalled in 2004, Whanganui negotiators decided that, instead of demanding ownership, the Whanganui iwi’s main goal was recognition and treatment of Te Awa Tupua according to the Māori view—as a whole, living, spiritual being.16 Among other things, this required treating the river at a catchment-wide level, which conflicted with the Crown’s fragmented regulatory framework under the Resource Management Act. The outcome also had to improve the health and well-being of the river.17

According to Christopher Finlayson, minister for Treaty of Waitangi negotiations, and members of the Crown negotiating team, the solution was inspired by the writings on RoN by North American legal scholars, particularly Christopher Stone, as well as US legal cases.18 Finlayson and Chief Crown Negotiator John Wood realized that granting the river legal personhood status might legally approximate the Whanganui iwi’s desire to recognize the river as a whole, living, spiritual being. The river could then be held responsible for meeting the requirements of the Resource Management Act. The idea of having guardians developed because it resonated with the Māori notion of rangatiratanga, or being guardians with responsibility to care for an ancestor (Iorns Magallanes 2014).

As these ideas were germinating, the Tūhoe settlement process progressed more rapidly. These talks were complicated by the fact that Te Urewera had been turned into a national park, giving it special status. When talks restarted in 2009, several proposed settlements were undermined by popular backlash against transferring ownership of a beloved national park to the Tūhoe.

A breakthrough came when Crown negotiators realized that the Tūhoe’s demand for the return of Te Urewera did not necessarily mean the Tūhoe needed to legally own it (i.e., have title). The Tūhoe demanded the return of the land, which they do not equate with ownership.19 Inspired by the idea to make the Whanganui River a legal person, Wood realized that if Te Urewera were granted legal personality, ownership of the land could be vested in Te Urewera itself. Then the Crown could say it was not transferring ownership to the Māori, and the Māori could say the Crown did not own it.20 A guardianship council, ultimately comprising six Tūhoe and three Crown representatives, would speak for the forest and have the authority to manage it. The Tūhoe accepted this legal approximation of their claim for a return of their land.

In sum, the unique obstacles to treaty settlements with the Whanganui and Tūhoe iwi were overcome by recognizing the Whanganui River and the forest Te Urewera as rights-bearing “persons” through the two deeds of settlement (Tūhoe’s signed in 2012 and Whanganui’s in 2014). These were formally implemented through the Te Urewera Act (passed in July 2014) and the Te Awa Tupua Act (passed in March 2017), described earlier.

In both cases, the legal personhood language is expressly intended to reflect the Māori iwi’s view that their respective ecosystems are living entities with intrinsic value that are incapable of being “owned” in an absolute sense and to enable them to have legal standing in their own right (Iorns Magallanes 2014). Guardians charged with protecting not just legal rights but also spiritual and cultural rights is a unique feature of New Zealand’s institutionalization of RoN. This relative focus on responsibility rather than rights reflects the inseparability of Māori people and their respective ecosystems and the consequent responsibilities for taking care of ecosystems as kin, expressed in the concept of rangatiratanga (Iorns Magallanes 2014).

Conclusions

RoN meta-norms have emerged globally over the last decade, expressed in governmental and nongovernmental institutions, from the UN General Assembly and IUCN to the GARN. These expressions share general normative beliefs regarding the intrinsic value of Nature, the need for humans to see themselves as part of Nature, and humans’ obligation to live in harmony with Nature. Like many international norms, RoN meta-norms remain relatively vague. Ambiguity over what exactly constitutes “living in harmony with nature” leaves many normative questions about definitions and obligations unanswered.

These normative questions are being answered in different ways by RoN legal provisions in different countries, owing to variation in domestic context. This article compared RoN laws in three of the first countries to adopt such laws: the US, Ecuador, and New Zealand. It presented a framework for analyzing RoN laws along two conceptual axes (scope and strength), highlighting how the laws answer the preceding normative questions differently. The article then showed how these differences resulted from the unique conditions and processes of contestation out of which each law emerged. The case studies reveal the importance of three domestic factors: the openness of national political opportunity structures (influencing the type of legal provision adopted), the types of organizations and sociopolitical alliance structures driving the process (influencing the interests pursued), and cultural context (influencing the frames used to mobilize support). Together, these factors shaped the strength of RoN laws and the way RoN were framed, contested, and expressed institutionally.

The foregoing case studies contribute to the literature on norm construction by identifying specific conditions that lead global meta-norms to be constructed differently at the national level, fueling norm construction and contestation at the international level. Each of the laws is seen as pioneering in its own way and has been diffused by transnational networks to other countries, which have adopted similar legal provisions. Ecuador’s pioneering constitution inspired the formation of the GARN as well as the UDRME, which is modeled on Ecuador’s constitution. The early US laws rapidly diffused throughout the US through a national network of community rights organizations supported by CELDF. These laws inspired activists in other countries, and CELDF is helping draft RoN laws based on the US model in India, Nepal, Colombia, and elsewhere.21 Even though New Zealand’s laws were not initiated by RoN activists, they have diffused through RoN networks and judicial networks, influencing RoN legal provisions in other countries. Citing the New Zealand laws as precedent, courts in India and Colombia granted legal standing to various rivers and other ecosystems, protected through a New Zealand–style guardianship arrangement (Republic of Colombia Constitutional Court 2016; Uttarakhand High Court 2017).

In sum, the article shows how global discourse regarding RoN prompted local experimentation with its application to address distinct problems. Yet, these local processes infused RoN meta-norms with distinct content. Consequently, rival models of RoN in practice are circulating internationally, fueling some contestation over how to define Nature, what rights to recognize, when violations occur, and how to structure guardianship. Contrary to how norm diffusion is commonly portrayed in the literature, the RoN norm construction process is not characterized by unidirectional flows of influence. Rather, it occurs simultaneously at the domestic and international levels, with influence moving in multiple directions.

Notes

1. 

Laws recognizing RoN in countries around the world are compiled by the UN Harmony with Nature Programme and are available at http://harmonywithnatureun.org/rightsOfNature/, last accessed August 3, 2018. The authors compiled data on the US cases from www.celdf.org/, news searches, and interview data.

2. 

We define norms as customary rules and standards determining appropriate behavior in societies (Finnemore and Sikkink 1998).

3. 

See Berry and Berry (2007) for a review of policy diffusion models. For summaries of norm diffusion models, see Krook and True (2012) and Jinnah and Lindsay (2016).

4. 

Writings on RoN by norm entrepreneurs from around the world can be found in the anthology The Rights of Nature (Council of Canadians 2011).

5. 

See http://therightsofnature.org/universal-declaration/, last accessed September 10, 2018.

6. 

It is beyond the scope of this article to evaluate the strength of these laws in terms of their implementation. We conduct such analysis elsewhere (Kauffman and Martin 2017).

7. 

In these cases, community refers to an ecosystem and a local, human community/municipality. Each is specified in the laws, which view human communities as nested within biotic communities.

8. 

Natalia Greene, The Politics of Rights of Nature in Ecuador. Webinar sponsored by the Yale Center for Environmental Law and Policy, New Haven, CT, February 6, 2015.

10. 

http://celdf.org/2015/08/tamaqua-borough, last accessed April 5, 2018.

11. 

Natalia Greene, The Politics of Rights of Nature in Ecuador. Webinar sponsored by the Yale Center for Environmental Law and Policy, New Haven, CT, February 6, 2015.

12. 

These insights are based on dozens of interviews conducted with Ecuadorian environmental lawyers, activists, and Indigenous leaders who advocated RoN and/or participated in the drafting of the constitution’s RoN provisions, including with Alberto Acosta, president of Ecuador’s Constituent Assembly, Quito, July 31, 2015.

13. 

Patricio Hernandez, interview with the author, Quito, Ecuador, August 3, 2015; Natalia Greene, interview with the author, Quito, Ecuador, July 30, 2015.

14. 

Hugo Echeverría, interview with the author, Quito, Ecuador, September 17, 2015.

15. 

Amb. John Wood, chief Crown negotiator for the Te Awa Tupua and Te Urewera settlements, interview with the author, Wellington, New Zealand, August 10, 2016; Paul Beverley, Crown lawyer for the Te Awa Tupua and Te Urewera settlements, interview with the author, Wellington, New Zealand, August 19, 2016.

16. 

Gerrard Albert, lead Whanganui iwi negotiator, interview with the author, Whanganui, New Zealand, August 16, 2016.

17. 

John Wood, interview; Gerrard Albert, interview.

18. 

Christopher Finlayson, minister for Treaty of Waitangi negotiations, interview with the author, Wellington, New Zealand, August 11, 2016; Paul Beverley, interview; Rachel Houlbrook, member of Crown negotiating team, interview with the author, Wellington, New Zealand, August 10, 2016. Lawyers working on the settlements specialized in biodiversity law and were familiar with writings on RoN.

19. 

Tamati Kruger, lead Tūhoe negotiator, interview with the author, Wellington, New Zealand, August 17, 2016; Kirsti Luke, Tūhoe negotiator, interview with the author, Wellington, New Zealand, August 17, 2016.

20. 

John Wood, interview.

21. 

https://celdf.org/rights/rights-of-nature/, last accessed April 5, 2018.

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Author notes

*

Craig Kauffman thanks the University of Oregon for several Faculty Research Grants and the Law Faculty of Victoria University–Wellington for supporting the research for this article. Pamela Martin thanks Coastal Carolina University for a Professional Enhancement Grant for this work. Both authors are indebted to the courage and kindness of the people of Ecuador, New Zealand, and Pennsylvania, who shared their struggles to promote rights of Nature. While it is not possible to recognize everyone here, the authors give special mention to Natalia Greene, Hugo Echeverría, Mario Melo, Alberto Acosta, Natalia Bonilla, Carwyn Jones, Cathy Iorns, Kirsti Luke, Tamati Kruger, Gerrard Albert, Marsha Buhl, Stacy Long, Chad Nicholson, Cliff Stump, and Judy Wanchisn.