‘Ecosystem services’ consist of natural processes on which humans depend, such as photosynthesis, waste decomposition, pollination, and water and air purification. Current proposals for the targeted protection of ecosystem services ignore the logic of ecosystems: interactions between organisms are driven by competition for resources in a contest for survival, in which successful adaptations are responses to system conditions. Preserving or protecting ecosystem services is not possible without protecting the operation of the system within which they exist. Ecosystems have no purposes, interests or objectives, but only dynamics and consequences. While changes to ecosystems can harm human interests, ecosystems themselves cannot be harmed, but only changed. Therefore, the question for environmental law is not whether ecosystem services deserve protection, but whether people have a right to ecosystem services. Contrary to prevailing academic opinion, the answer to this question lies within the principles of capitalism. In its pure form, capitalism is a system of governance based upon the logic of ecosystems, modified in only one main respect: in interactions between people, physical interference is prohibited. Competition is thus transformed from physical struggle into a contest for commercial survival. The principle of non-interference is the conceptual foundation of negative human rights, including self-ownership, property rights, and the freedom to contract in markets. The question is: does the principle of non-interference mean that people have a right to restrict other people from changing ecosystems?
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Colin T Reid and Walters Nsoh
A range of legal tools is increasingly being used for the conservation of biodiversity. These tools include conservation covenants, biodiversity offsets and payment for ecosystem services. There are benefits to these approaches, but also challenges to be met if these mechanisms are to be applied successfully.
Among the challenges is the fact that these schemes generate new relationships between land, people and the environment, especially wildlife. This requires consideration of the basic position of ownership of wild flora and fauna, the extent of the property rights of landowners and others with interests in the land, and of how far the state is justified in restricting, and even taking over, these rights for conservation purposes. The restriction of property rights for environmental purposes has already given rise to litigation under the European Convention on Human Rights, and as ideas of long-term stewardship in land or new rights in relation to ecosystem services develop, there are questions over the nature and extent of the rights being recognized. Moreover, there are concerns over the acceptability of an approach that converts nature from a ‘common heritage’ to a bundle of property rights. Mechanisms that confer rights on nature add a further dimension to the discussion. Using examples from the United Kingdom and other jurisdictions, this article attempts to highlight the different ways in which rights can be viewed in the context of developments in conservation law and the need to appreciate the consequences from different perspectives.
This synthetic appraisal of the collection of papers in this issue argues that historical injustice saturates the problem of climate change. Those most vulnerable to climate change today are largely those who already lack resources – who have been on the wrong end of colonial history, or who have been globalization's losers, or who have suffered neglect, exclusion or simple rapacity at the hands of their own governments. They are those who have benefitted little or not at all from a carbon-intensive global economy, but who have long suffered its side effects – resource stripping, food price spikes, impoverishment and now the ravages of climate change. Following the other authors in this issue – and examining human rights law, trade law and the overarching ideal of the rule of law – the paper notes that the particular form taken by law in international and transnational affairs, having largely followed the historical progress of industrialism, colonialism and globalization, is peculiarly ill-suited to the task of addressing this vulnerability.