First Rivers, then Mountains, and Now the Amazon. Do “Things” Have Rights?

—Jorge Iván Palacio, former Justice of Colombia’s Constitutional Court and Supreme Court of Justice, and Juan C. Herrera, former law clerk of the Constitutional Court of Colombia; PhD Researcher and Teaching Assistant in Constitutional Law, Universitat Pompeu Fabra; Visiting Researcher at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg

In the last few decades, challenges that may reconfigure our relationship with our environment and the “things” that are part of it have burst onto the scene. Recent legislative and case-law precedents have recognized the legal rights of the Whanganui River and Taranaki Mountain in New Zealand, the Ganges River in India, the Atrato River and the Amazon region in Colombia. This tendency arises from an “ecocentric” approach that is based on a fundamental premise: humans do not possess the relationship with the earth; instead, humans are the ones who belong to the planet, not in terms of property, but as one part of the whole.

One of the Renaissance’s great contributions was to place humans at the center of the universe. Leonardo da Vinci’s Vitruvian Man is a graphical indication of this way of thinking. The drawing illustrates the spirit of an age that wanted to relocate the axis of the universe, no longer on a superior being, but on the symbol of an Apollonian European white male as the center of everything. If one observes the drawing carefully, it particularizes the squaring of the circle into a philosophical, religious, and mathematical problem. More than 500 years have gone by since that time, and the specific contribution of the Law throughout this period has been to locate certain essential rights in a special place in the collective consciousness. These rights are so essential that they have, at various times, been identified as men’s rights, human rights, or fundamental rights.

In addition, in the face of interpretative conflicts, legal science introduced the “pro homine” principle, which is translated from the Latin as “in favor of man” and which has, in order to broaden the understanding of it, been called pro person. Defining what or who is a person has not been an easy or harmonious question. Particularly when it is a matter of issues that challenge the archetypes of the Vitruvian Man or represent the need to recognize otherness. For example: are women, the indigenous, or afro-descendants persons?

In 1518, 1618, 1718, 1818, and 1918, the majority response was negative, albeit with differing nuances. Questions from the debate between Ginés de Sepúlveda and Bartolomé de las Casas in Valladolid (1550-1551) about how to categorize those very similar “things” encountered by some Europeans on the other side of the Atlantic circulated for several centuries. A great deal of blood had to flow to formally abolish the slavery of those other “things” with a skin color that was different than the Vitruvian Man’s. Entire generations of women died without knowing what it was to vote and without being elected to public office, and their formal and universal recognition would only be granted in 1952. At the beginning of the twenty-first century, women, the indigenous, and blacks no longer demand abstract recognition as persons under the law (de jure); instead, they have already achieved it (de facto) relatively successfully.

For the legal conceptualization of what a “person” is, the anthropocentric characteristic or that of the human being as the measure and center of all things would seem exclusive. However, at different times, we have needed to create “illogical” categories to extend certain guarantees to that which is not human. Technically—and even poetically—the Law calls them legal fictions, and it is possible to find examples in various contexts; one of them is the division between natural and juristic persons.

Corporations (legal persons) like Amazon or Nestlé are themselves—as distinct from the humans who administer or possess them—holders of human rights, such as their reputation or due process. We cannot slander them or initiate legal proceedings against them without formal notification. Companies provide wealth, employment, and goods to society; for that reason, we value them and, even though they are “things,” we treat them as persons with certain guarantees that used to seem exclusive to humans.

Since 1945, UNESCO officially protects buildings, places, traditional practices, memory, etc., not only the humans behind these “things” or those who created them, but also the “things” themselves. Angkor Wat in Cambodia, the great barrier reef in Australia, or carpet weaving in Iran are some examples. On the other extreme, parts of the human body have been protected and insured, in some ways objectifying the person: Jennifer Lopez’s posterior, Lionel Messi’s legs, or Angelina Jolie’s lips.

Do animals, forests, mountains, or rivers hold rights or are they simple objects of protection?

There are “things” that can be considered persons before the law and are, therefore, subject to special protection. In this way, there is a reformulation of the categories with which legal systems assimilate animals, which have progressed from being understood as “things” to “sentient beings.” Many countries have created special programs and categories of protection regarding extinction and even minimal ethical standards for reproduction, growth, and sacrifice. Current challenges point to expansion in other fields in order to further the controversy and thus get beyond the stage of objects of protection and become holders of legal rights.

When it comes to forests, rivers, and mountains, it is now normal and even necessary to delineate nature reserves in which it is forbidden to put into practice the type of relationship with the environment that is exercised in most urban and rural areas. The precedents cited at the beginning of this article arise from heterodox readings of the Law, but one impression that stands out is that the authorities in those places have taken into consideration the perspectives of native communities that have, since time immemorial, lived and survived in relative balance with their environment and in opposition to the Western model of development.

In the “periphery” of the traditional centers of thought, alternatives are being considered with a simple and powerful formula focused on remembering that everything is connected and that the regulatory mechanisms that have been created until now are not sufficient. According to this new blueprint, Vitruvian Man (that which is human) no longer occupies the center but is considered one of the parts, essential if you will, but interconnected and completely dependent.

There are still many avenues to explore in a debate that is currently limited to advocating a broad understanding of person in national and international legal instruments. However, time is of the essence, and scientific evidence reveals that the only planet with the distinctive features of life that we know has sent clear messages that it is not prepared to bide its time as the indigenous peoples, afro-descendants, and women did.

Suggested Citation: Jorge Iván Palacio & Juan C. Herrera, First Rivers, then Mountains, and Now the Amazon. Do “Things” Have Rights?, Int’l. J. Const. L. Blog, Sept. 18, 2018, at: http://www.iconnectblog.com/2018/09/first-rivers-then-mountains-and-now-the-amazon-do-things-have-rights