Drawing on the emerging field of multispecies justice, this article seeks to understand how the idea of transitional justice, capaciously understood, might be put to work to transform unjust relations between humans and the more-than-human. Reflecting on concerns in the literatures on animals and the environment concerning the cogency of addressing past wrongs against the more-than-human by using a justice framework, the article sets out a foundational agenda for transitional justice and a conceptual framework responsive to the ontological diversity of beings and communities other than humans. Focusing on soil specifically, the article explores the problem of developing transitional justice approaches for transforming relations that involve systemic violence where such violence is not acknowledged because the harmed being – soil – is not recognized as the type of community to which justice might be owed. To illustrate proto-transitional justice, the article considers both the work of regenerative farmers and emergent collaborations between farmers and visual artists to explore how engagements with the arts of relating to the more-than-human might move the as yet private transformations of relations with soil into a more public, albeit incipient, process of justice.
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Danielle Celermajer and Anne Therese O’Brien
Emille Boulot, Anna Grear, Joshua Sterlin and Iván Darío Vargas-Roncancio
This article rethinks the doctrines of responsibility and protection in international environmental law in light of notions of response-abilities and care in more-than-human worlds. Inspired by the intersecting strands of new materialist, relational and posthuman literatures, and informed by critiques of them by decolonial, indigenous and black scholars, the analysis works with onto-epistemologies of becoming that posit an inseparability of being, knowing and acting with(in) the Anthropocene/s. Through the notion of response-abilities of care, the article reconfigures how the destructive and the restorative relations between humans and nonhumans could be construed beyond a narrow understanding of state sovereignty, territorial jurisdiction, liberal human-centred notions of individuated agency and the strict causal nexus between victim and perpetrator. The analysis concludes by reflecting on how law could remain open to emergent, unfolding and contingent potentialities of entangled human-nonhuman relations, and questions law’s capacity to recognize and respond to the agency and alterity of nonhumans. These configurations exceed the schema of responsibility and protection that organizes even international environmental law’s most progressive theories and practices, such as granting ‘rights to nature’.
Edited by Anna Grear
Amaya Álvez-Marín, Camila Bañales-Seguel, Rodrigo Castillo, Claudia Acuña-Molina and Pablo Torres
Diverse existing legal paradigms have dealt with the interaction of humans and Nature in different ways. We identify three main lenses through which current constitutional systems in Latin America have operated to resolve conflicts. We focus on rivers as emblematic elements of Nature that offer concrete possibilities to operationalize an emerging paradigm that recognizes legal personhood for Nature. The objective is to examine, from a critical interdisciplinary perspective, the existing paradigms, describe their limits and open the debate to alternative jurisdictional venues for favouring the coexistence of humans and natural systems. Through the comparative analysis of three case studies in Chile, Colombia and Ecuador, we outline the challenges and opportunities offered by an emerging legal tradition, ‘The New Latin American Constitutionalism’, and question what would effectively be different with a change of paradigm towards the recognition of Nature’s rights.
*We thank the two anonymous reviewers, the journal’s editors and our colleague Diego Rivera for their feedback to improve the discussion presented in this manuscript. The participation of Amaya Álvez-Marín and Rodrigo Castillo was funded by Fondap Project ANID/FONDAP/15130015. Camila Bañales-Seguel was supported by the Agencia Naiconal de Investigación (ANID) PhD grant n° 2018-21190264.
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.
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.
Ed Couzens, Tim Stephens, Cameron Holley, Saiful Karim, Kate Owens, Manuel Solis and Katie Woolaston
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.