A legal system that prioritises the conservation of the living world over private property would be a powerful tool for ecological transition. Valérie Cabanes, co-founder of French non-profit Notre Affaire à Tous, makes the case for enshrining the rights of nature and the crime of ecocide in law.
Thrust into the public arena by major disasters, be they industrial or produced by the extremes of climate change, environmental protection now seems to be everyone’s concern. But what does it mean exactly? What does environmental protection protect? Resources? Landscapes? Human communities?
Since the 1950s, there has been a growing collective awareness of the threats posed to natural resources and of the damage suffered by the environment. From this, environmental law has emerged as a tool to defend the weakest in society, to protect an entity that is alive, but not human. It is a means of establishing prohibitions, of placing restrictions on certain actions whose consequences would make humans and the planet potential “victims”.
But environmental law grew out of the existing, completely anthropocentric legal framework: subjects in law are humans or their extensions (businesses or charities, for example). Furthermore, as products of the political, social, and cultural trends and power dynamics of the societies it governs, the law and its branches evolve – often in opposition to one another. As economic and financial globalisation has accelerated over the past few decades, commercial law has increasingly shirked its responsibilities towards the environment. This abusive relationship urgently needs to be rebalanced to treat ecosystems as victims, and acknowledge the rights of nature in the face of attacks perpetuated by the system of private property rights and commercial law.
This need for rights of nature is tied in with the notion of urgency.
Quite simply, we must recognise the rights of nature. This means changing our core values, inverting the hierarchy of norms. The recognition of planetary boundaries (today used to evaluate whether sustainable development objectives are being met) and the rights of nature in domestic and international law would subject commercial law and industrial activities to a legally binding framework. Hence the need for recognition of the crime of ecocide for actions that cause the most serious harm to natural commons and ecosystems. By recognising the rights of nature and its role in our ecosystems, we can safeguard our fundamental rights to water, air, food, health – and even habitat, because today climate change is pushing hundreds of millions of people to leave their homes in a wave of forced migration.
This need for rights of nature is tied in with the notion of urgency. Faced with a politics of gradualism that handles the current economic system with care, nudging it towards ecological transition through tax or moral incentives and individual voluntarism, the law can be a real and effective tool for transforming society.
Protecting the non-human
Current environmental law is not up to the task of tackling the climate and environmental crisis, because it reflects a worldview in which nature is “managed” based on our needs. The legal revolution I propose turns this on its head, no longer talking about the environment, but about Earth’s ecosystem. It is about re-integrating humans into nature and redefining our rules for living together to include non-humans, who today are not subjects in law but objects to be appropriated and exploited. Very concretely, this involves placing certain limits on the freedom to do business and, above all, on private property rights. It means calling into question the fundamental principles on which our societies are built, as we face up to the challenges of maintaining life on Earth.
Given the urgency of the matter, it is time for radical ideas. The scenarios fuelling today’s public debate are forcing all political parties to take a position on a potential legal reform that will threaten the entire financial and industrial system. One such idea is the “Parliament of Things” proposed by French philosopher Bruno Latour, (1) which could be an educational phase in a process of more radical legal transformation, starting with the creation of a “Chamber of the Future”, as suggested by Dominique Bourg. (2)
Today, the commitments made by states are far too unambitious and, crucially, not enshrined in law as obligations: they are simply promises, and often empty ones at that.
Such ideas, which once seemed impossible, utopian, romantic even, are beginning to be adopted by very different politicians. This language (which remains just that until it is voted on and implemented) is echoed by French President Emmanuel Macron in his proposal to internationally recognise ecocide as a crime. Of course, he knows very well that at the United Nations, countries like the US and China will never allow an international convention on ecocide to be signed. Macron is happy to endorse innovative ideas as long as they are not binding on France or Europe. His Renew Europe group in the European Parliament recently voted in favour of an amendment which would see Europe’s recommendations for COP15 (the fifteenth meeting of the Conference of the Parties to the Convention on Biological Diversity, to be held in Kunming, China, in October 2020) include recognition of a legal status for natural commons. But this begs the question: if the vote had been on a European directive on the rights of nature, would they have voted in favour of this legal paradigm shift with the same conviction and consistency?
Today, the commitments made by states are far too unambitious and, crucially, not enshrined in law as obligations: they are simply promises, and often empty ones at that. As products – and, therefore, guardians – of this system, politicians are unable to escape from these power dynamics and focus on genuinely protecting the public interest in the long term. Truly questioning the economic system and the dogma of growth means challenging the dominant representation of the world and society – and revolutionising how we meet our needs. Which is why we need a new legal system: the United Nations has spent the past ten years discussing a universal declaration on the rights of nature, and the past five a binding treaty on transnational corporations, human rights, and the environment. At the European level, there should, at the very least, be a directive on companies’ duty of care, with criminal sanctions. More concretely, we should grant legal personhood to species and ecosystems, and use that as a basis for a legal status for natural commons. Then, through the creation of a European Public Prosecutor for the Environment, or even for the Rights of Nature, the tools would be there to shift our legal system away from one in which private property rules, and towards one where conservation of the living world takes priority.
Lastly, the concept of ecocide allows us to lay the blame at the door of executives and the biggest polluters, and to stop constantly guilt-tripping citizens into action. This is crucial, because it would flip the burden of responsibility on its head. Over the last couple of years, protest movements have been sparked across the world by rising energy and food prices: from Ecuador to Chile, from France to Iran. On the one hand, there are “climate marches”, demonstrations by (mostly young) people who demand that we finally take the climate seriously, and that we begin the energy transition, by force if necessary. On the other, we are seeing the suffering and despair of those who bear the brunt of social and environmental inequality daily, and who are hit hardest by rising oil prices. We are witnessing the emergence of social revolts whose only aim is to express rage at this corrupt political class – with its cosy relationship with finance and industry – and determination not to be the forgotten victims of the system. But it’s hard to make out an alternative project behind the anger – other than a demand for greater democracy.
Mobilising for justice
That is why Notre Affaire à Tous – a non-profit organisation founded in France in 2015 – is trying to promote a meeting of minds by inviting the gilets jaunes to join the climate march movement. The organisation also runs the Super Local project, which asks citizens to document climate change, biodiversity loss, and the activities contributing to them where they live. It is about engaging citizens by mapping the consequences of the climate crisis. The aim is to create a vision of environmentalism as a shared social project for tackling social and economic problems.
The key to the significance of the Affaire du Siècle petition was that it supported tangible action – namely, a lawsuit. (3) This project, inspired by a similar lawsuit filed in the Netherlands by Urgenda,(4) was launched by Notre Affaire à Tous with the aim to show, in an informative way, that the state is not honouring its commitments. We have lodged a formal complaint, and hope that it will be upheld by the court. It all began back in 2013 with the launch of a European Citizens’ Initiative on the crime of ecocide, which was supported by parties from across the continent. This breeding ground for activism spawned organisations like Notre Affaire à Tous, Nature Rights, and Wild Legal in France, and many others elsewhere in Europe.
It is a three-pronged approach that consists of mobilising citizens, using the legal system to highlight institutional failings, and putting forward proposals at an institutional level.
The work of Notre Affaire à Tous goes on. We have created a European network for the rights of nature, which is part of the Global Alliance for the Rights of Nature. We have drafted laws on the crime of ecocide in France, and on the rights of nature in Sweden. And we have been involved in an international campaign for the recognition of ecocide by the International Criminal Court. Each member acts individually or collaboratively with the support of citizens and political actors, both in their own country and internationally, by proposing a reform of environmental and criminal law. It is a three-pronged approach that consists of mobilising citizens, using the legal system to highlight institutional failings, and putting forward proposals at an institutional level. We are constantly working at the level of both institutions and citizens.
Notre Affaire à Tous is trying to find innovative ways of moving the democratic debate forward, and of presenting an ecosystemic vision, by seizing opportunities as they arise, ensuring that this subject continues to be talked about and is visible in the media, and that citizens become increasingly engaged. As the environmentalist slogan goes: “We are not defending nature – we are nature defending itself.” Through the law.
1. Bruno Latour proposed the concept of the “Parliament of Things”, notably in his 1991 work Nous n’avons jamais été modernes (Paris: La Découverte), pointing to a new relationship of reconciliation between humanity and nature, effectively putting an end to humanism which was, in his view, responsible for the divorce between the two in the first place.
2. The idea of a Chamber of the Future proposes the establishment of a third chamber made up of a mixture of experts and citizens drawn by lot. This chamber would intercede in the legislative process in the long term interest. Dominique Bourg et al. (2011). Pour une 6e République écologique. Paris: Editions Odile Jacob.
3. The Affaire du Siècle (the Case of the Century) petition was launched in December 2018 and collected more than 2 million signatures in less than a month.
4. The Urgenda Foundation took the Dutch government to court on behalf of 886 Dutch citizens to force it to take more action against climate change. In 2015, a court in the Hague ruled that the Dutch state had a legal duty to take more urgent measures to reduce greenhouse gas emissions, a decision which was upheld by the Dutch Supreme Court in December 2019.
This is article is part of our latest edition, “A World Alive: Green Politics in Europe and Beyond”.