Constructing Rights of Nature Norms - Recherche en IA spécialisée au MIT

Constructing Rights of Nature Norms
in the US, Ecuador, and New Zealand

(cid:129)
Craig M. Kauffman and Pamela L. Martin*

Abstrait
Governments around the world are adopting laws granting Nature rights. Despite ex-
pressing common meta-norms transmitted through transnational networks, rights of
Nature (RoN) laws differ in how they answer key normative questions, including how
to deﬁne rights-bearing Nature, what rights to recognize, and who, if anyone, should be
responsible for protecting Nature. To explain this puzzle, we compare RoN laws in three
of the ﬁrst countries to adopt such laws: Ecuador, the US, and New Zealand. We present a
framework for analyzing RoN laws along two conceptual axes (scope and strength),
highlighting how they answer normative questions differently. The article then shows
how these differences resulted from the unique conditions and processes of contestation
out of which each law emerged. The article contributes to the literature on norm con-
struction by showing how RoN meta-norms circulating globally are infused with differ-
ing content as they are put into practice in different contexts, setting the stage for
international norm contestation.

Since 2006, governments around the world have adopted legal provisions (laws
and court rulings) recognizing Nature as a subject with inalienable rights.
Rights of Nature (RoN) legal provisions now exist in Brazil, Bolivia, Colombia,
Ecuador, India, Mexico, Nouvelle-Zélande, and the US, where at least ninety-six sub-
national RoN legal provisions have been adopted or are pending.1 These legal
provisions reﬂect emerging global meta-norms regarding humans’ relationship
à (and obligations toward) Nature that challenge dominant anthropocentric

* Craig Kauffman thanks the University of Oregon for several Faculty Research Grants and the
Law Faculty of Victoria University–Wellington for supporting the research for this article. Pamela
Martin thanks Coastal Carolina University for a Professional Enhancement Grant for this work.
Both authors are indebted to the courage and kindness of the people of Ecuador, Nouvelle-Zélande,
and Pennsylvania, who shared their struggles to promote rights of Nature. While it is not pos-
sible to recognize everyone here, the authors give special mention to Natalia Greene, Hugo
Echeverría, Mario Melo, Alberto Acosta, Natalia Bonilla, Carwyn Jones, Cathy Iorns, Kirsti Luke,
Tamati Kruger, Gerrard Albert, Marsha Buhl, Stacy Long, Chad Nicholson, Cliff Stump, and Judy
Wanchisn.

1. Laws recognizing RoN in countries around the world are compiled by the UN Harmony with
Nature Programme and are available at http:// harmonywithnatureun.org/rightsOfNature/,
last accessed August 3, 2018. The authors compiled data on the US cases from www.celdf.
org/, news searches, and interview data.

Politique environnementale mondiale 18:4, Novembre 2018, est ce que je:10.1162/glep_a_00481
© 2018 par le Massachusetts Institute of Technology

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44 (cid:129) Constructing Rights of Nature Norms in the US, Ecuador, and New Zealand

development norms.2 Initiatives also exist to recognize RoN internationally, dans-
cluding the UN Harmony with Nature Programme, the Universal Declaration of
the Rights of Mother Earth, and the proposed International Environment Court.
The ﬁrst countries to adopt RoN laws did so in rapid succession (the US in
2006; Ecuador in 2008; Bolivia in 2010; New Zealand in 2014). The temporal
clustering and common normative underpinnings suggest policy diffusion or
isomorphism are at work, which should produce similar laws. Encore, despite a
common RoN discourse transmitted through transnational networks, early
RoN laws institutionalize different answers to key normative questions, tel
as how to deﬁne rights-bearing Nature, what rights to recognize, who can speak
for Nature, and whether someone should be responsible for protecting Nature’s
droits. Tableau 1 compares these and other differences among early RoN laws.

We argue that these different institutional expressions of RoN meta-norms
were produced through the process of applying ideas circulating globally in dis-
tinct socioeconomic, politique, and legal contexts. Employing inductive reason-
ing and comparative historical analysis in Ecuador, the US, and New Zealand,
we identify three important domestic contextual differences: the openness of
national political opportunity structures, the types of organizations and socio-
political alliance structures driving the process, and the cultural framing used to
mobilize support. Ensemble, these factors shaped how RoN was contested and
expressed institutionally.

This article makes three contributions. D'abord, it presents a conceptual frame-
work for comparing RoN laws. Deuxième, it contributes to the literature on norm
construction by identifying speciﬁc conditions that lead global meta-norms to
be constructed differently at the national level, fueling norm construction and
contestation at the international level. Troisième, the article challenges conven-
tional portrayals of norm diffusion as being characterized by unidirectional
ﬂows of inﬂuence, whether international–local, North–South, or South–
South. Plutôt, this article shows how the norm construction process occurs
simultaneously at the domestic and international levels, with inﬂuence moving
in multiple directions.

Research Design and Methodology

To illustrate this process of norm construction, we compare six different RoN
laws from three countries: the US, Nouvelle-Zélande, and Ecuador. We look at these
countries both because they constitute very different systems (varying by level of
développement économique, political/legal system, géographie, demographics, cul-
ture, and other factors) and also because these are the places where the process
of institutionalizing RoN norms has advanced the furthest, thereby providing
the most data for analysis.

2. We deﬁne norms as customary rules and standards determining appropriate behavior in societies

(Finnemore and Sikkink 1998).

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46 (cid:129) Constructing Rights of Nature Norms in the US, Ecuador, and New Zealand

Ecuador’s 2008 Constitution recognizes rights for all of Nature. Nouvelle-Zélande
has two national laws—the Te Urewera Act (2014) and the Te Awa Tupua Act
(2017)—each of which grants rights to a particular ecosystem. In the US, sub-
national governments have adopted laws recognizing RoN in their jurisdictions,
including municipal ordinances, home rule charters, and state constitutional
amendments. We analyze ordinances adopted by three Pennsylvania munic-
ipalities: Tamaqua Borough, Highland Township, and Grant Township. Nous
selected these US cases because each is pioneering in its own way and be-
cause they served as models for subsequent US RoN laws. Tamaqua’s ordinance
was the world’s ﬁrst RoN law (adopted in 2006). Highland and Grant town-
ships’ laws were the ﬁrst to be challenged in the US court system, prompting
adaptation.

We employed comparative historical analysis and process tracing to iden-
tify key factors that led processes of RoN norm construction in each case to
evolve along distinct paths, producing distinct institutional expressions. Notre
analysis draws on hundreds of primary and secondary documents as well as
scores of in-depth interviews conducted over several years of ﬁeldwork in
Ecuador (2014–2015), Nouvelle-Zélande (2016), and the US (2014–2017).

Constructing RoN Norms Through Practice

Predominant models of policy and norm diffusion generally seek to explain
why policies look the same across countries.3 Moreover, norm diffusion models
tend to view norm content as “static and unitary” and to explain the clustering
of norm adoption as the result of top-down processes by which established in-
ternational norms diffuse to the local level (Krook and True 2012, 106–108).
The World Polity model, Par exemple, explains countries’ simultaneous adop-
tion of similar policies and institutions due to their embeddedness in world
society, which promotes cultural processes of isomorphism through identity
construction, learning, and imitation (Meyer et al. 1997). International norms
are treated as “exogenous models” that are “not strongly anchored in local
circumstances” (Meyer et al. 1997, 156). Much of the rest of the norm diffusion
literature explains the clustering of norm adoption as resulting from either the
bandwagoning of states that imitate inﬂuential states (Finnemore and Sikkink
1998, 893) or the pressure and persuasion exerted by transnational activist net-
works of norm entrepreneurs (Keck and Sikkink 1998), epistemic communities
(Haas 1992), states ( Jinnah and Lindsay 2016), or intergovernmental organiza-
tion (Flockhart 2005). As we will show, most of these diffusion mechanisms
are evident in the US, Ecuador, and New Zealand, making the distinct institu-
tional expressions all the more surprising.

3. See Berry and Berry (2007) for a review of policy diffusion models. For summaries of norm

diffusion models, see Krook and True (2012) and Jinnah and Lindsay (2016).

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Craig M. Kauffman and Pamela L. Martine

(cid:129) 47

Global RoN Meta-Norms
While RoN laws only emerged recently, RoN’s normative foundations have de-
veloped over centuries in both Western and non-Western cultures (Kauffman
and Martin 2017). These include humans’ obligation to live in harmony with
Nature (respecting the reciprocal relationship), legal standing for Nature, Nature’s
right to exist and be restored, and ethical arguments for reenvisioning a broader
rights framework for the planet.4

Global networks to develop and promote RoN (also called Earth juris-
prudence) began forming in the 1980s, initially in the Global South through
Indigenous movements mobilizing to protect Mother Earth. Throughout the
early 2000s, institutions and centers for Earth jurisprudence formed in the
ROYAUME-UNI, Afrique du Sud, Australia, Nouvelle-Zélande, the US, et ailleurs (Boyd
2017; Kauffman and Martin 2017). The Global Alliance for the Rights of Nature
(GARN) was established in 2010 as a coordinating body for activists and orga-
nizations working to apply RoN in domestic and international law. The UN
Harmony with Nature Programme, created by the UN General Assembly in
2009, similarly serves as a central node linking transnational networks of RoN
experts and facilitates the development of RoN norms within the UN system.

RoN meta-norms are now expressed in UN Secretary-General reports (par exemple.,
United Nations 2013), UN General Assembly resolutions (including the 2015
resolution A/RES/70/208 to develop Earth law), Pope Francis’ 2015 encyclical
Laudato Si; and international forums for discussing climate change and the 2030
Sustainable Development Agenda. One of the clearest expressions is the Uni-
versal Declaration of the Rights of Mother Earth (UDRME),5 promulgated by
35,000 people from 140 states at the 2010 World People’s Conference on
Climate Change and the Rights of Mother Earth (Kauffman 2017, 197). At its
Quadrennial Congress in 2016, International Union for Conservation of Nature
(IUCN) members committed themselves to take action to implement RoN dur-
ing the next four years (International Union for Conservation of Nature 2016).
In contrast to dominant development norms, which view humans as sep-
arate from Nature, global RoN meta-norms consider all components of Nature,
including humans, to have inherent rights. Like all norms, RoN norms state
what humans should do, reﬂected in the UDRME’s section on “Obligations of
Human Beings to Mother Earth.” These include, among other things, “respecting
and living in harmony with Mother Earth,” acting in accordance with the RoN,
and ensuring “that the pursuit of human wellbeing contributes to the well-
being of Mother Earth.” This charge is expressed in a 2013 report by then
UN secretary-general Ban Ki-Moon, who criticized perpetual economic growth
and made a normative argument for creating a new development paradigm
based on ecological economics and RoN (United Nations 2013, 26–27).

4. Writings on RoN by norm entrepreneurs from around the world can be found in the anthology

The Rights of Nature (Council of Canadians 2011).

5. See http://therightsofnature.org/universal-declaration/, last accessed September 10, 2018.

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48 (cid:129) Constructing Rights of Nature Norms in the US, Ecuador, and New Zealand

Norm Construction in Unique Environments
Since RoN norms are expressed internationally, why do the world’s early RoN
laws look so different? To answer this question, we use pragmatist theories of
institution building to build on recent research on norm construction that ex-
amines processes of contestation, experimentation, adaptation, and learning
(Krook and True 2012; Sandholtz 2008; Van Kersbergen and Verbeek 2007;
Wiener 2004). As Krook and True (2012, 104) note, “the norms that spread
across the international system tend to be vague, enabling their content to be
ﬁlled in many ways and thereby to be appropriated for a variety of different
purposes.” This is consistent with pragmatist theories of institution building,
which explain how institutional designs evolve through contestation, experimen-
tation, adaptation, and learning, causing institutions to reﬂect the outcomes of
experimentation in distinct contexts (Berk and Galvan 2013; Abers and Keck
2013). Before identifying the factors that caused norm construction processes
to vary across our cases, we ﬁrst describe variation in the outcome—how RoN
laws differ in important ways that shape how RoN norms are practiced and thus
constructed.

Comparing RoN Laws

We compare RoN laws in the US, Ecuador, and New Zealand using indicators of
two concepts: scope and strength (see Table 1). Scope refers to the range of rights
afforded and how broadly these rights are applied. This has normative implica-
tions regarding how Nature is conceptualized and deﬁned in practice. Strength
refers to enforcement capacity expressed through laws’ formal authority and
individuals’ capacity and responsibility to enforce Nature’s rights.6 In this sec-
tion, we compare the laws in our sample along these two conceptual axes.

Scope: Deﬁning Rights-Bearing Nature

All RoN laws treat Nature as a legal personality, conceptualize Nature at the eco-
system level rather than by individual ﬂora and fauna, and at least implicitly
recognize that humans are part of these ecosystems. Encore, they differ in how
expansively they deﬁne rights-bearing Nature.

Ecuador’s Constitution is the most expansive. The Constitution’s Preamble
deﬁnes Nature as the Andean Indigenous deity “Pachamama [translated as
Mother Earth], where life is reproduced and occurs” (Republic of Ecuador
2008). No other deﬁnition is offered, purposefully leaving the deﬁnition expan-
sive. Interviews with people who crafted Ecuador’s RoN provisions show that
they intended to portray Nature’s rights as being inherent to all of the Earth’s
ecosystems, including those beyond Ecuador’s borders. This is evidenced by the

6. It is beyond the scope of this article to evaluate the strength of these laws in terms of their

implementation. We conduct such analysis elsewhere (Kauffman and Martin 2017).

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Craig M. Kauffman and Pamela L. Martine

(cid:129) 49

2010 lawsuit submitted to the Ecuadorian Constitutional Court by Ecuadorian
RoN activists. It invokes universal jurisdiction to sue British Petroleum for environ-
mental damage resulting from its 2010 oil spill in the Gulf of Mexico (El Universo
2010). While the court declined to hear the suit, the Constitution’s expansive
deﬁnition of Nature remains.

Par contre, New Zealand’s RoN laws only grant RoN to particular ecosys-
thèmes: the Whanganui River (Te Awa Tupua Act) and the forest Te Urewera (Te
Urewera Act). The laws explicitly deﬁne the boundaries of these ecosystems
and restrict legal personality to them. Cependant, like Ecuador’s Constitution,
New Zealand’s RoN laws recognize the ecosystems as living spiritual beings.
This similarity results from the leading role played by Indigenous groups in both
countries and efforts to codify their non-Western understandings of humans’ re-
lationship to Nature within a Western legal framework. One consequence is that
elements considered to be nonliving in Western science (par exemple., rocks, soil, et
eau) are legally deﬁned both as living and having metaphysical characteristics
that make them deserving of moral consideration.

US RoN ordinances do not frame ecosystems as living spiritual beings but
rather as sets of “natural communities” whose welfare is necessary for the well-
being of human communities.7 Most US ordinances deﬁne Nature as some
combination of wetlands, streams, rivers, aquifers, soil, and native species of
ﬂora and fauna. Like New Zealand’s laws, the US laws restrict legal personhood
status to speciﬁc ecosystems (those within municipal boundaries).

Scope: Which Rights Are Granted?

Le plus important, from a norm construction perspective, RoN laws vary in the
speciﬁc rights granted. Ecuador’s Constitution reﬂects a holistic approach to
conceptualizing Nature’s intrinsic value and an emphasis on maintaining bal-
ance within natural systems. Title II, chapter 7 grants Nature the rights to exist,
to maintain its integrity as an ecosystem, and to regenerate “its life cycles, struc-
ture, functions and evolutionary processes” (Republic of Ecuador 2008). Nature
also has the right to be restored if injured, independently of human claims for
compensation (Articles 71–73).

Many US RoN ordinances go a step further and also grant Nature the right
to “ﬂourish.” This distinction has important implications for determining
violations of RoN (and thus which actions humans are obliged to prevent).
Humans invariably impact the ecosystems they live in. Under Ecuador’s Consti-
tution, human impacts do not violate Nature’s rights so long as they do not
irreparably damage the integrity of an ecosystem to the point where it cannot
regenerate itself. One author of Ecuador’s RoN provisions likened the distinc-
tion to the difference between breaking your arm (a temporary damage that will

7. In these cases, community refers to an ecosystem and a local, human community/municipality. Chaque
is speciﬁed in the laws, which view human communities as nested within biotic communities.

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50 (cid:129) Constructing Rights of Nature Norms in the US, Ecuador, and New Zealand

heal naturally) and the permanent damage of cutting off your arm.8 By contrast,
the right to ﬂourish switches the emphasis from preventing permanent damage
to ensuring some level of well-being for an ecosystem. US ordinances do not
deﬁne what it means to ﬂourish, but they open the possibility of a much more
restrictive deﬁnition of which human impacts are acceptable. Metrics that reg-
ulators could use to measure ecosystem ﬂourishing are currently being con-
structed (Kauffman and Sheehan, forthcoming).

In contrast, New Zealand’s two laws simply recognize Te Awa Tupua (le
Whanganui River) and Te Urewera (the forest) as legal persons with “all the
droits, powers, duties, and liabilities of a legal person” (Te Awa Tupua Act
2017, clause 14; Te Urewera Act 2014, Article 11). These rights grant procedural
access to New Zealand’s political and legal systems. Par exemple, these eco-
systems can own property, incur debts, petition the courts and administrative
agencies, and receive reparations for damages, should a court rule in their favor.
Cependant, the laws do not guarantee the ecosystems’ right to maintain their
integrity or be restored, much less to ﬂourish.

Strength: Type of Law and Legal Standing

RoN laws challenge the interests of powerful economic actors, who themselves
have legally recognized property rights. Par conséquent, RoN are often challenged
in court. One measure of strength is whether RoN norms are enshrined in laws
that have strong legal standing within a country’s political system. Officiellement,
Ecuador’s constitutional RoN provisions are extremely strong; they have the
highest legal standing, although they can conﬂict with other constitutional
droits. Because New Zealand’s political system recognizes parliamentary suprem-
acy, national acts have superior legal standing. Par contre, US municipal ordi-
nances may be preempted by state constitutions and/or the US Constitution.

These institutional differences matter because it is one thing to institution-
alize a new norm into law but quite another thing to strengthen emerging
norms through practice. In the early stages of a norm’s life cycle, when a norm
remains highly contested, laws often are not applied in ways that support the
norm (Dancy and Michel 2015). For this reason, an important informal mea-
sure of strength is whether RoN laws have been challenged in court and, if so, si
the laws have been upheld and applied in practice. This is affected by RoN laws’
position in the larger legal structure.

RoN jurisprudence has developed the furthest in Ecuador—unsurprisingly,
given its constitutional protections and status as an early adopter. Entre 2008
et 2016, twelve lawsuits invoked RoN. In nine cases, the courts upheld the
RoN. Elsewhere, we document these lawsuits and explain why RoN were upheld
in some cases and not others (Kauffman and Martin 2017). Par contre, US RoN

8. Natalia Greene, The Politics of Rights of Nature in Ecuador. Webinar sponsored by the Yale

Center for Environmental Law and Policy, New Haven, CT, Février 6, 2015.

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ordinances have yet to be upheld by a court, illustrating the weakness of local
RoN laws within the US federal system. Cependant, we show how contestation in
US courts has led to experimentation and the evolution of RoN laws’ institu-
tional design. The New Zealand cases are among the most recent and remain
untested. As we describe, cependant, New Zealand’s laws recognize competing
rights and balance anthropological and ecological concerns. If other countries’
experiences are any guide, the application of RoN laws will produce conﬂict,
which provides a creative force for RoN norm construction.

Strength: Responsibility for Defending Nature
RoN laws also vary in who can legally represent Nature to protect its rights—and
whether anyone is obligated to do so. Theoretically, when authority to represent
Nature is distributed broadly, the barriers to defending Nature’s rights are lower.
Ecuador’s Constitution grants legal representation most broadly. Article 71
states that “all persons, communautés, peoples and nations can call upon public
authorities to enforce the rights of Nature.” Anyone, Ecuadorian citizen or not,
can bring suit to defend the RoN. The US ordinances are somewhat more restric-
tive, limiting legal representation to citizens of the city or township. While both
countries’ laws empower many people to protect Nature by invoking RoN, le
laws do not require anyone to do so, potentially weakening them compared to
New Zealand’s laws.

New Zealand’s laws emphasize the concept of responsibility more than
droits. The laws create statutory guardians charged with promoting and protect-
ing the interests, well-being, and rights of the river Te Awa Tupua and the forest
Te Urewera. While this legal design limits who can represent Nature, advocates
argue that the guardianship model is stronger because it appoints representa-
tives who are legally mandated to advocate for Nature’s interests and protect
its rights, not only in courts but also in policy and social forums (Iorns 2017, 1).

Strength: Hierarchy of Rights
Another measure of strength is the degree to which RoN laws deﬁne the rela-
tionship between RoN and other types of rights, particularly property rights.
The US ordinances are the strongest in this respect, limiting the rights of cor-
porations and subordinating them to the RoN. In Ecuador, court rulings have
established the principle that RoN are transversal, meaning that they are con-
nected to and impacted by all other elements of the legal order, and therefore
are more fundamental than property rights (Kauffman and Martin 2017). Dans
2015, this principle was upheld by Ecuador’s Constitutional Court. Citing
Articles 83 et 395 of Ecuador’s Constitution, the Court determined that “all
the actions of the State, as well as of individuals, must observe and be in accor-
dance with the rights of Nature” (Ecuadorian Constitutional Court 2015, 12).

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Based on this reasoning, the Court rejected arguments that private property
rights trump RoN.

The hierarchy of rights in New Zealand’s Te Awa Tupua Act is less clear. Sur
one hand, Part 2, clause 16 states that the act does not limit private property rights.
On the other hand, the act establishes legal weighting provisions specifying that
any actor whose actions affect the river must “have particular regard to” the in-
terests of the river and “recognize and provide for” the river’s status as an indi-
visible, living, whole spiritual being. De plus, resource use in Te Awa Tupua
(Whanganui River) is subject to the Resource Management Act, which balances
ecocentric values against more anthropocentric concerns (Barraclough 2013).
Speciﬁc conﬂicts would ultimately have to be resolved through New Zealand’s
court system.

The hierarchy of rights is handled somewhat differently in the Te Urewera
Acte. Te Urewera is not subject to the Resource Management Act because it was
formerly a national park governed by special Conservation Department pro-
visions. For the same reason, there is no private property. Par conséquent, a Te
Urewera Board has full authority to determine management of the forest and
is charged with doing so according to ecocentric principles that protect the right
of Te Urewera to have its interests considered and to be treated as an integrated,
living, spiritual being. It is this autonomy of the Te Urewera Board, along with
the charge of managing in the interests of Te Urewera, that makes the Te
Urewera Act stronger than the Te Awa Tupua Act in terms of prioritizing
Nature’s rights.

Construction and Contestation of RoN Laws

Why are RoN norms constructed and institutionalized so differently? In this sec-
tion, we trace the independent origin of early RoN laws, highlighting how dif-
ferences in local context shaped their expression. Our analysis of the case
comparisons suggests three key differences. D'abord, variation in the political op-
portunity structure for creating national environmental laws determined the
type of law created and, par conséquent, its strength within the existing legal
framework. Deuxième, different types of organizations supported RoN laws to
achieve distinct motivations and goals, and they developed different coalitions
based on their position in larger sociopolitical alliance structures. This variation
inﬂuenced the contestation around RoN and thus how it was deﬁned and
framed. Troisième, variation in cultural values inﬂuences the kinds of frames used
to mobilize support. Differences in these second and third factors explain why
RoN laws differ on important normative questions, such as how to deﬁne
rights-bearing Nature, what rights to recognize, who can speak for Nature,
and whether someone should be responsible for protecting Nature.

The following case studies describe how variations in these three domestic
conditions produced the unique institutional outcomes detailed earlier in this
article. Since the 1980s, partisan gridlock in the US Congress has obstructed the

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passage of new, stronger environmental laws. Par conséquent, national networks
of environmental lawyers seeking RoN laws allied with grassroots activists seek-
ing to challenge corporate exploitation of local ecosystems. This produced local
laws framing RoN as an expression of community rights and a tool for strength-
ening democracy. In Ecuador, the writing of a new constitution in 2007 opened
a window of opportunity for an alliance of environmental NGOs, Indigenous
mouvements, and leftist political movements to codify a postneoliberal develop-
ment model infused with Indigenous concepts. The constitution recognizes RoN
as a tool for achieving this new development model, creating a strong legal
foundation and framing RoN in terms of Indigenous conceptions of nature
and a postneoliberal development model based on living in harmony with
Nature. The New Zealand government’s process for settling treaty violations
with Māori iwi similarly opened a window of opportunity. Contestation be-
tween the Crown government and Māori iwi caused RoN laws to emphasize
Māori understandings of ecosystems as living ancestors and the responsibility
of guardianship. Ensemble, the cases highlight how distinct RoN laws evolved
through contestation, experimentation, adaptation, and learning.

US RoN Laws
The ﬁrst US RoN ordinance has its roots in the work of the Community Envi-
ronmental Legal Defense Fund (CELDF). CELDF was formed in 1995 by envi-
ronmental lawyers who concluded that existing environmental laws were
inadequate. They advocated new laws that prevented environmental harm
(rather than merely mitigating it) and that strengthened the rights of commu-
nities to protect themselves from environmental degradation caused by indus-
trial activity. Inﬂuenced by the work of Christopher Stone (1972) et d'autres,
they saw RoN as an important legal tool for achieving these goals.

CELDF recognized that they faced a closed national political opportunity
structure at the federal level and so shifted contestation to local political arenas.
CELDF established a new approach to grassroots organizing centered on De-
mocracy Schools that trained community residents “to confront the usurpation
by corporations of the rights of communities, people, and earth.”9 CELDF began
helping communities develop community bills of rights that could provide a
legal basis for residents to defend their interests against corporations that in-
voked property rights to justify environmentally destructive behavior. Framing
RoN as a way to defend local democracy was effective because of its cultural
resonance in the US. Surtout, this framing has resonated not only in liberal
communities known for environmental activism but also in conservative com-
munities like Tamaqua Borough, Pennsylvania (Linzey 2017).

Dans 2006, a local supervisor for Tamaqua Borough named Cathy Miorelli
attended a CELDF Democracy School. Miorelli was concerned about a planned

9. http://celdf.org/ how-we-work/education/democracy-school, last accessed April 5, 2018.

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54 (cid:129) Constructing Rights of Nature Norms in the US, Ecuador, and New Zealand

new sewage sludge deposit facility in the borough. A nurse, Miorelli had been
studying the increasing incidences of cancer in her vicinity and gathered evidence
of a cancer linked to industrial toxins like benzene. Since her community bor-
dered three superfund sites, she worried that contamination by yet another facility
would put residents at even more risk. Inspired to take action, Cathy ran for and
won a seat as a local supervisor and attended CELDF’s Democracy School.

After the experience, Miorelli said, “I realized that we could act on what we
wanted most and put together an ordinance that would prevent contaminants
from coming into our town.”10 Miorelli arranged for CELDF representatives to
meet with the Tamaqua Council and draft an ordinance recognizing RoN as part
of a set of community rights. Miorelli, the mayor, and the council of supervisors
held several town meetings to educate the public and mobilize popular support.
Despite the threat of lawsuits against the town and individual supervisors,
Tamaqua Borough passed the world’s ﬁrst RoN ordinance in 2006 (Tamaqua
Borough 2006).

The Tamaqua Borough Sewage Sludge Ordinance was novel in that it con-
siders natural communities and ecosystems to be legal “persons” and explicitly de-
nies the same recognition to corporations. This is to limit corporations’ rights to
interfere “with the existence and ﬂourishing of natural communities or ecosystems”
(Tamaqua Borough 2006, 4). The ordinance treats RoN as a tool for strengthening
community rights vis-à-vis corporate property rights so that community members
can ensure that their community (human and natural) is healthy and ﬂourishes.
CELDF has since developed a national network of organizations dedicated
to strengthening community rights and has worked with dozens of communi-
ties across the US to pass similar RoN ordinances. Many of these are designed to
prevent environmental damage caused by hydraulic fracturing (fracking).
CELDF’s approach is novel because it takes environmental protection out of
the regulatory realm and moves it to the legal realm, where fracking can be
banned as a violation of the rights of communities and Nature. Cependant, it
remains unclear whether the legal standing of local RoN ordinances will be
recognized by courts.

Contestation between communities and corporations is producing exper-
imentation with new ways to institutionalize RoN. Par exemple, ordinances in-
voking RoN to ban fracking in Grant and Highland townships, Pennsylvania,
have been challenged in court by affected energy corporations. In the Grant case,
the judge ruled that the ordinance overstepped the legislative boundaries of a
municipality. Undeterred, residents experimented with a new institutional ex-
pression of RoN norms—a home rule charter. A legal tool applicable in forty-
three US states, home rule charters are municipal constitutions that override the
second-class status of a municipality to a US state (Russell and Bostrom 2016). Dans
2015, Grant Township passed its home rule charter to circumvent the preemptive
nature of state constitutions over municipalities. Highland Township soon

10. http://celdf.org/2015/08/tamaqua-borough, last accessed April 5, 2018.

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followed suit. The Pennsylvania Department of Environmental Protection (DEP)
sued the county for banning wastewater injection wells permitted by the DEP.
While still pending, the US cases illustrate how RoN laws are evolving through
contestation, experimentation, and learning and how RoN laws can be used to
strengthen norms over time.

Ecuador’s RoN Laws

Talk of legalizing RoN in Ecuador dates back at least to the 1990s, quand
Ecuadorian citizens sued Texaco in US federal court for oil pollution in
the Northern Ecuadorian Amazon. Amid the lawsuit, Indigenous groups
and environmental NGOs like Acción Ecológica discussed codifying for
Western legal purposes the Indigenous cosmovision that Nature is sacred,
possesses its own rights, and is part of a living community in which humans
exister (Martine 2011). During the 2000s, these discussions were linked to the
global discourse on RoN through transnational networks of antiextactivist
organizations like Oilwatch (Martine 2011).

Ecuador’s constitutional RoN provisions resulted from changes in the
political opportunity structure created in 2006 when Rafael Correa was elected
president. After a decade of extreme political and economic instability, Correa
rose to power on the promise to fundamentally remake Ecuador’s political and
economic systems. A key step was rewriting the country’s constitution in 2007.
Surtout, Correa incorporated many members of the antioil extraction
community into his cabinet, including Alberto Acosta, who became president
of the Constituent Assembly.

The process of writing Ecuador’s new constitution was remarkably par-
ticipatory. Civil society submitted more than 3,000 proposals, which were con-
sidered by the Constituent Assembly.11 This process provided a window of
opportunity for Indigenous, campesino, and environmental groups that had
long fought to protect their communities from the environmental damage
caused by industrial extractivism. Within the Constituent Assembly, they sought
to ban extractivism and replace it with an alternative development approach
that recognized the intrinsic value of Nature and provided for human well-being
by ensuring the well-being of the larger biotic community.12 To this end, vari-
ous lawyers, activists, and scholars proposed recognizing RoN. Acosta supported
the idea and guided it through the constitution-writing process.

Due to their place in Correa’s coalition, Ecuadorian Indigenous move-
ments had a substantial inﬂuence on the constitution and shaped the framing

11. Natalia Greene, The Politics of Rights of Nature in Ecuador. Webinar sponsored by the Yale

Center for Environmental Law and Policy, New Haven, CT, Février 6, 2015.

12. These insights are based on dozens of interviews conducted with Ecuadorian environmental
lawyers, activists, and Indigenous leaders who advocated RoN and/or participated in the draft-
ing of the constitution’s RoN provisions, including with Alberto Acosta, president of Ecuador’s
Constituent Assembly, Quito, Juillet 31, 2015.

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of RoN (Becker 2013). Ecuador’s constitution pledges to build a new form of
sustainable development based on the Andean Indigenous concept of sumak
kawsay (translated into Spanish as buen vivir), which is rooted in the idea of liv-
ing in harmony with Nature (Chuji 2014; Oviedo 2014; Eisenstadt and West
2017). Par conséquent, the Preamble deﬁnes Nature as Pachamama and presents
a guiding principle for the new development approach: that humans are part of
Nature and thus Nature is a vital part of human existence. Ecuador’s constitu-
tion presents buen vivir as a set of rights for humans, communautés, and Nature
and portrays RoN as a tool for achieving a postneoliberal development model
rooted in the concept of sumak kawsay. This framing explains the expansive def-
inition of Nature, the focus on maintaining balance and equilibrium within the
larger biotic community, the recognition of human impacts on Nature, et le
obligation to offset human impacts through restoration.

After the constitution was adopted, the process of creating the second-
ary laws and institutions needed to give form to constitutional RoN princi-
ples was obstructed by conﬂict among Correa’s original coalition members.
While Indigenous and environmental groups wanted to strengthen RoN to
prevent extractivism, Correa and other socialists advocated expanding mining
and oil extraction to ﬁnance poverty reduction programs. This political conﬂict
obstructed the passage of secondary RoN legislation and channeled contestation
over how RoN should be interpreted and applied through the courts.13

Detailing the evolution of RoN jurisprudence through the courts is beyond
the scope of this article, and we do this elsewhere (Kauffman and Martin 2017).
We note here only that the constitution provided a strong legal basis for protect-
ing RoN norms despite political and economic opposition. This is illustrated by
the fact that Ecuadorian judges have begun to unilaterally apply RoN in their
sentencing, even when neither claimants nor defendants invoke RoN (Kauffman
and Martin 2017). They do so because their professional standards require them
to protect the constitution and interpret the law in its entirety.14 Over time,
court rulings have strengthened RoN jurisprudence, including establishing
the precedent that economic interests cannot take precedence over the RoN
(Ecuadorian Constitutional Court 2015). While constitutional RoN provisions
have not ended extractivism in the country, Ecuador illustrates the outcome of
years of meta-norm development and a distinct application at the national level
forged through contestation, adaptation, and evolution through court rulings.

New Zealand’s RoN Laws

New Zealand demonstrates a third, distinct path to institutionalizing RoN
norms. New Zealand’s RoN laws emerged through the process of resolving
long-standing disputes over the 1840 Treaty of Waitangi between New Zealand’s

13. Patricio Hernandez, interview with the author, Quito, Ecuador, Août 3, 2015; Natalia Greene,

interview with the author, Quito, Ecuador, Juillet 30, 2015.

14. Hugo Echeverría, interview with the author, Quito, Ecuador, Septembre 17, 2015.

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Crown government and two Māori iwi (tribes). During the 1960s and 1970s,
New Zealand underwent a “Māori Renaissance,” including a Māori protest
movement demanding redress for treaty violations and the ability for Māori
iwi to protect and manage their ancestral territories. During the 1990s, le
government began negotiating settlements of historical claims with individ-
ual iwi.

Treaty settlements opened a window of opportunity for creating RoN laws
by codifying Māori conceptions of Nature into New Zealand law. Iwi trace their
ancestral lineage to a common ecosystem, which they view as a living, spiritual
être. Māori generally do not emphasize the concept of rights, since they do
not conceptualize Nature as property. Plutôt, they emphasize the concept of
guardianship resulting from their duty to care for their ancestor. Par conséquent,
both the substance and framing of New Zealand’s RoN laws are different from
those in Ecuador and the US.

New Zealand’s two RoN laws resulted from treaty settlements with the
Whanganui iwi, regarding the Whanganui River (Te Awa Tupua), and the Tūhoe
iwi, regarding the forest Te Urewera. The same Crown negotiators and lawyers
worked on both settlement processes simultaneously (an unusual circum-
position), which allowed learning and the diffusion of ideas across the two nego-
tiations. In both cases, recognizing Nature as a legal person with rights was
conceived as a strategic tool for overcoming unique obstacles to settlement.
Autrement dit, they resulted from contestation, adaptation, and learning.

The idea to grant Nature legal personality arose ﬁrst in the Whanganui
negotiations.15 After talks stalled in 2004, Whanganui negotiators decided that,
instead of demanding ownership, the Whanganui iwi’s main goal was recogni-
tion and treatment of Te Awa Tupua according to the Māori view—as a whole,
living, spiritual being.16 Among other things, this required treating the river at a
catchment-wide level, which conﬂicted with the Crown’s fragmented regulatory
framework under the Resource Management Act. The outcome also had to
improve the health and well-being of the river.17

According to Christopher Finlayson, minister for Treaty of Waitangi
négociations, and members of the Crown negotiating team, the solution was
inspired by the writings on RoN by North American legal scholars, particularly
Christopher Stone, as well as US legal cases.18 Finlayson and Chief Crown

15. Amb. John Wood, chief Crown negotiator for the Te Awa Tupua and Te Urewera settlements,
interview with the author, Wellington, Nouvelle-Zélande, Août 10, 2016; Paul Beverley, Crown
lawyer for the Te Awa Tupua and Te Urewera settlements, interview with the author, Wellington,
Nouvelle-Zélande, Août 19, 2016.

16. Gerrard Albert, lead Whanganui iwi negotiator, interview with the author, Whanganui, Nouveau

Zealand, Août 16, 2016.

17. John Wood, interview; Gerrard Albert, interview.
18. Christopher Finlayson, minister for Treaty of Waitangi negotiations, interview with the author,
Wellington, Nouvelle-Zélande, Août 11, 2016; Paul Beverley, interview; Rachel Houlbrook, mem-
ber of Crown negotiating team, interview with the author, Wellington, Nouvelle-Zélande, Août 10,
2016. Lawyers working on the settlements specialized in biodiversity law and were familiar with
writings on RoN.

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58 (cid:129) Constructing Rights of Nature Norms in the US, Ecuador, and New Zealand

Negotiator John Wood realized that granting the river legal personhood status
might legally approximate the Whanganui iwi’s desire to recognize the river
as a whole, living, spiritual being. The river could then be held responsible
for meeting the requirements of the Resource Management Act. The idea of
having guardians developed because it resonated with the Māori notion of
rangatiratanga, or being guardians with responsibility to care for an ancestor
(Iorns Magallanes 2014).

As these ideas were germinating, the Tūhoe settlement process progressed
more rapidly. These talks were complicated by the fact that Te Urewera had been
turned into a national park, giving it special status. When talks restarted in 2009,
several proposed settlements were undermined by popular backlash against
transferring ownership of a beloved national park to the Tūhoe.

A breakthrough came when Crown negotiators realized that the Tūhoe’s
demand for the return of Te Urewera did not necessarily mean the Tūhoe
needed to legally own it (c'est à dire., have title). The Tūhoe demanded the return of
the land, which they do not equate with ownership.19 Inspired by the idea to
make the Whanganui River a legal person, Wood realized that if Te Urewera
were granted legal personality, ownership of the land could be vested in Te
Urewera itself. Then the Crown could say it was not transferring ownership to
the Māori, and the Māori could say the Crown did not own it.20 A guardianship
council, ultimately comprising six Tūhoe and three Crown representatives,
would speak for the forest and have the authority to manage it. The Tūhoe
accepted this legal approximation of their claim for a return of their land.

In sum, the unique obstacles to treaty settlements with the Whanganui
and Tūhoe iwi were overcome by recognizing the Whanganui River and the
forest Te Urewera as rights-bearing “persons” through the two deeds of settle-
ment (Tūhoe’s signed in 2012 and Whanganui’s in 2014). These were formally
implemented through the Te Urewera Act (passed in July 2014) and the Te Awa
Tupua Act (passed in March 2017), described earlier.

In both cases, the legal personhood language is expressly intended to re-
ﬂect the Māori iwi’s view that their respective ecosystems are living entities with
intrinsic value that are incapable of being “owned” in an absolute sense and to
enable them to have legal standing in their own right (Iorns Magallanes 2014).
Guardians charged with protecting not just legal rights but also spiritual and
cultural rights is a unique feature of New Zealand’s institutionalization of
RoN. This relative focus on responsibility rather than rights reﬂects the insepa-
rability of Māori people and their respective ecosystems and the consequent
responsibilities for taking care of ecosystems as kin, expressed in the concept
of rangatiratanga (Iorns Magallanes 2014).

19. Tamati Kruger, lead Tūhoe negotiator, interview with the author, Wellington, Nouvelle-Zélande,
Août 17, 2016; Kirsti Luke, Tūhoe negotiator, interview with the author, Wellington, Nouvelle-Zélande,
Août 17, 2016.
20. John Wood, interview.

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(cid:129) 59

Conclusions

RoN meta-norms have emerged globally over the last decade, expressed in gov-
ernmental and nongovernmental institutions, from the UN General Assembly
and IUCN to the GARN. These expressions share general normative beliefs re-
garding the intrinsic value of Nature, the need for humans to see themselves as
part of Nature, and humans’ obligation to live in harmony with Nature. Like
many international norms, RoN meta-norms remain relatively vague. Ambi-
guity over what exactly constitutes “living in harmony with nature” leaves many
normative questions about deﬁnitions and obligations unanswered.

These normative questions are being answered in different ways by RoN
legal provisions in different countries, owing to variation in domestic context.
This article compared RoN laws in three of the ﬁrst countries to adopt such laws:
the US, Ecuador, and New Zealand. It presented a framework for analyzing RoN
laws along two conceptual axes (scope and strength), highlighting how the laws
answer the preceding normative questions differently. The article then showed
how these differences resulted from the unique conditions and processes of con-
testation out of which each law emerged. The case studies reveal the importance
of three domestic factors: the openness of national political opportunity struc-
photos (inﬂuencing the type of legal provision adopted), the types of organiza-
tions and sociopolitical alliance structures driving the process (inﬂuencing the
interests pursued), and cultural context (inﬂuencing the frames used to mobilize
support). Ensemble, these factors shaped the strength of RoN laws and the way
RoN were framed, contested, and expressed institutionally.

The foregoing case studies contribute to the literature on norm con-
struction by identifying speciﬁc conditions that lead global meta-norms to be
constructed differently at the national level, fueling norm construction and con-
testation at the international level. Each of the laws is seen as pioneering in its
own way and has been diffused by transnational networks to other countries,
which have adopted similar legal provisions. Ecuador’s pioneering constitution
inspired the formation of the GARN as well as the UDRME, which is modeled
on Ecuador’s constitution. The early US laws rapidly diffused throughout the US
through a national network of community rights organizations supported by
CELDF. These laws inspired activists in other countries, and CELDF is helping
draft RoN laws based on the US model in India, Nepal, Colombia, and else-
where.21 Even though New Zealand’s laws were not initiated by RoN activists,
they have diffused through RoN networks and judicial networks, inﬂuencing
RoN legal provisions in other countries. Citing the New Zealand laws as prece-
bosse, courts in India and Colombia granted legal standing to various rivers and
other ecosystems, protected through a New Zealand–style guardianship arrange-
ment (Republic of Colombia Constitutional Court 2016; Uttarakhand High
Court 2017).

21. https://celdf.org/rights/rights-of-nature/, last accessed April 5, 2018.

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60 (cid:129) Constructing Rights of Nature Norms in the US, Ecuador, and New Zealand

In sum, the article shows how global discourse regarding RoN prompted
local experimentation with its application to address distinct problems. Encore,
these local processes infused RoN meta-norms with distinct content. Conse-
quently, rival models of RoN in practice are circulating internationally, fueling
some contestation over how to deﬁne Nature, what rights to recognize, quand
violations occur, and how to structure guardianship. Contrary to how norm dif-
fusion is commonly portrayed in the literature, the RoN norm construction pro-
cess is not characterized by unidirectional ﬂows of inﬂuence. Plutôt, it occurs
simultaneously at the domestic and international levels, with inﬂuence moving
in multiple directions.

Craig M. Kauffman is an associate professor of political science and envi-
ronmental studies at the University of Oregon. He is the author of the award-
winning book Grassroots Global Governance: Local Watershed Management
Experiments and the Evolution of Sustainable Development (2017) and of various
articles on environmental law, ecological economics, and the politics of sus-
tainable development. He is a member of the United Nations Harmony with
Nature Knowledge Network, which advises member states on how to imple-
ment the 2030 Sustainable Development Goals in harmony with nature.

Pamela L. Martin is a professor of politics at Coastal Carolina University in
Conway, South Carolina, and the executive director of the United Nations Re-
gional Centre of Expertise on Education for Sustainable Development in
Georgetown, South Carolina. Martin was awarded the University Distinguished
Teacher Scholar and was a Fulbright Scholar in Ecuador, focusing on environ-
mental governance of the Amazon. She has published four books and numer-
ous articles on international relations and environmental policy, including the
coedited volume Ending the Fossil Fuel Era, which was awarded the Best Book
Award in Environmental Studies of the International Studies Association.

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