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Edited by Anna Grear

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Yaffa Epstein and Hendrik Schoukens

A growing number of jurisdictions throughout the world have recognized some type of legal rights of nature. This jurisprudential trend has thus far made few inroads in Europe. However, its apparent absence is misleading. In this article we argue that, explicit or not, nature as protected by European Union (EU) law already has certain legal rights in the Hohfeldian sense because other entities have legal obligations towards it. Moreover, we argue that recent decisions of the Court of Justice of the EU can be interpreted to support our claim that nature, as protected by EU law, already enjoys some legal rights that cannot be trumped by mere utilitarian interests, and that these rights can in turn be recognized and applied by national courts. We further suggest that public interest litigation can contribute to developing rights for nature in Europe, even absent any explicit recognition of these rights in EU law or in national legislation.

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Rosemary J Coombe and David J Jefferson

In a decolonial determination to resist the modern ontological separation of nature from culture, political ontologies and posthuman legalities in Andean Community countries increasingly recognize natural and cultural forces as inextricably interrelated under the principle of the pluriverse. After years of Indigenous struggles, new social movement mobilizations and citizen activism, twenty-first-century constitutional changes in the region have affirmed the plurinational and intercultural natures of the region’s polities. Drawing upon extensive interdisciplinary ethnographic research in Ecuador and Colombia, the article illustrates how Indigenous, Afro-descendant and campesino communities express multispecies relations of care and conviviality in opposition to modern extractivist development through the concept of buen vivir. These grassroots collective life projects and life plans articulate rights ‘from below’ to support new practices of territorialization that further materialize natures’ rights and community ideals. Although human rights have modern origins, the implementation of third generation collective biocultural rights to fulfill natures’ rights may help to materially realize community norms, autonomies and responsibilities that exceed modern ontologies. The ecocentric territorial rights struggles and posthuman legalities we explore are examples of a larger emergent project of decolonizing human rights in a politics appropriate to the Anthropocene.

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Manuela Niehaus and Kirsten Davies

In September 2019, over four million people, in an estimated 185 countries worldwide, marched for better climate policies and their enforcement in a global climate strike. This is an example of the global community, particularly young people, rising up and demanding climate action to protect their threatened future. The world community has experienced ‘rights-based’ community uprisings in the past, for example, anti-nuclear protests and movements for women’s rights. These uprisings have often led to changes in values, attitudes and behaviour, changes that have underpinned new laws, policies and practices. This article discusses how social movements and climate litigation activisms can influence and foster stronger climate policies and considers where current community climate uprisings will lead, in the context of climate and human rights law. The article explores whether these uprisings can embrace the ‘voiceless’ – future generations and nature – by giving them a meaningful voice in the service of urgently required climate action and legal protection of the planetary future.

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Ed Couzens, Tim Stephens, Cameron Holley, Saiful Karim, Kate Owens, Manuel Solis and Katie Woolaston

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Brooke Dellavedova

Class actions provide a mechanism for grouping together like claims; and, in doing so, can enhance access to justice and the integrity of our democratic processes. Environmental class actions have an important role to play in environmental governance including by providing compensation and remediation, shaping norms of conduct and promoting accountability. There are, however, various limitations on the usefulness of class actions in achieving environmental objectives. In particular, the class actions regime is procedural rather than substantive (it does not overcome limitations on the availability or utility of causes of action for addressing environmental harm); it attracts the operation of additional rules and jurisprudence which may make some actions more difficult or not well suited to being brought as class actions; and class actions tend to be expensive and risky. Accordingly (and notwithstanding a recent flurry) we are unlikely to see the opening of the dreaded floodgates. Rather, environmental governance will most likely continue to be supported by the appropriate and considered commencement and conduct of meritorious actions.

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Edited by Anna Grear

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Mandy Treagus

This article outlines the environmental disaster that was phosphate mining on Banaba – or Ocean Island, as it was known to outsiders. The article tracks the tactics used by what became the BPC (British Phosphate Commissioners) in extracting phosphate from the island, resulting in the removal of 90 per cent of its soil and simultaneously alienating Banabans from their land, livelihoods and culture. This process took place over 80 years, finally ending in 1981. In the course of this extraction, Banabans were removed from what was fast becoming an uninhabitable environment in 1945, when they began life on the Fijian island of Rabi. This article reflects on the ongoing legacy of bitterness and grief experienced by Banabans, together with their attempts at obtaining restitution from the Company and the governments it represented. In this context, the art installation Project Banaba (2017; 2019) by Katerina Teaiwa is considered as a response to these histories. The article concludes with an examination of the literature that considers the removal of Banabans as a test case for climate-induced migration, noting that the singularity of the Banaban experience is not likely to be repeated, while also acknowledging the ongoing legacy of loss and grief for Banabans.

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Neil Gunningham

This article examines whether large-scale grassroots activism might be a necessary condition for achieving transformational climate change action, and examines whether Extinction Rebellion (XR), which has had a remarkable impact in a very short time, might – unlike its predecessors – be capable of precipitating such change. Reviewing the evidence, the article suggests that such activism, even if necessary, is unlikely to be sufficient to bring about rapid and radical climate action. It might, however, prove to be an important change agent, through its contribution to a broader coalition of business and civil society actors or through harnessing ‘webs of influence’. How such a coalition might evolve, or web influence play out, is also explored.

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Corrie Grosse and Brigid Mark

Youth activists around the world are demanding urgent climate action from elected leaders. The annual United Nations climate change negotiations, known as COPs, are key sites of global organizing and hope for a comprehensive approach to climate policy. Drawing on participant observation and in-depth interviews at COP25 in 2019, this research examines youth climate activists’ priorities, frustrations and hopes for creating just climate policy. Youth are disillusioned with the COP process and highlight a variety of ways through which the COP perpetuates colonial power structures that marginalize Indigenous peoples and others fighting for justice. This is intersectional exclusion – the character of exclusion experienced by people with multiple intersecting marginalized identities. We demonstrate that the space, policies and even the social movement organizing at COP25 are exclusive, necessitating new ways of negotiating, building relationships, and imagining climate solutions that centre Indigenous communities, and protect and return to them the lands on which they depend. As the youth climate justice movement grows, attending to Indigenous priorities will help it transform, rather than reinforce, the systems at the root of climate crisis and to challenge existing policymaking structures.