Recognising the rights of nature: How have the courts fared?

• Published date: 01 May 2023
• Author: Tolulope N. Ogboru
• Date: 01 May 2023
• DOI: http://doi.org/10.1111/eulj.12490

ORIGINAL ARTICLE

Recognising the rights of nature: How have the

courts fared?

Tolulope N. Ogboru

*

Abstract

The Rights of Nature (RoN) concept is an evolving theory in environmental law. It advocates that

natural objects be respected and allowed to exist, thrive and flourish for themselves and not for util-

itarian purposes. However, attempts to apply the rights often result in litigation. The outcomes of

these cases have grave implications for the impact of the RoN concept on the development of juris-

prudence and environmental protection, which will further determine its acceptance or rejection by

the international community. An examination of some key cases reveals some positive develop-

ments that can enhance the implementation of the concept, but it also demonstrates that there are

some challenges in the approach adopted by the courts. The article concludes that the RoN can be a

jurisprudential tool to enhance environmental protection only where, in addition to well-written

constitutional and legislative provisions, court decisions in these cases are of practical

consequences.

1|INTRODUCTION

We must add to the exclusively social contract a natural contract of symbiosis and reciprocity in

which our relationship to things would set aside mastery and possession in favor of admiring atten-

tion, reciprocity, contemplation, and respect; where knowledge would no longer imply property, nor

action mastery, nor would property and mastery imply their excremental results and origins.

1

This is how, more than 30 years ago, the French philosopher Michel Serres was calling for a truce or reconcilia-

tion between mankind and nature in the wake of climate change. Conferring rights to nature would constitute the

effective translation and operationalisation of the natural contract into law. Although there is no commonly accepted

definition of the Rights of Nature (RoN), Thomas Linzey aptly captures the essence of the concept.

2

He defines RoN

as the recognition, by legislation or jurisprudence, of the legally enforceable rights of nature, ecosystems and

* LL.B, B.L. LL.M, Ph.D; Professor of Environmental Law, Faculty of Law, University of Jos, Jos, Plateau, Nigeria; ogboruit@yahoo.com.

1

M. Serres, The Natural Contract (University of Michigan, 1995), 38.

2

Thomas Linzey is the Senior Legal Counsel for the Center for Democratic and Environmental Rights, Washington, USA, a non-profit organisation

committed to globally advancing environmental rights, and the co-founder ofthe Community Environmental Legal Defense Fund. He is recognised as the

founder of the contemporary ‘community rights’movement.

Received: 3 September 2022 Revised: 8 February 2024 Accepted: 12 February 2024

DOI: 10.1111/eulj.12490

Eur Law J. 2023;29:445–458. wileyonlinelibrary.com/journal/eulj © 2024 John Wiley & Sons Ltd. 445