cormac cullinan report may 2010 - uct centre of criminology · cullinan to provide assistance in...

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REPORT ON ACTIVITIES FUNDED BY THE GRANT AGREEMENT ENTERED INTO

BETWEEN THE UNIVERSITY OF CAPE TOWN AND CORMAC CULLINAN

Prepared for: Centre of Criminology University of Cape Town

Prepared by: Cormac Cullinan EnAct International 70 Rosmead Avenue, Kenilwoth Cape Town. 7708 Tel: 021 671 7002 Fax: 021 671 7003 www.enact-international.com

12 May 2010

Our ref. CP Cullinan/jb/Wild Law Inc/Centre for Criminology

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TABLE OF CONTENTS

1. INTRODUCTION .................................................................................................... 2

2. ACTIVITIES FUNDED BY GRANT ........................................................................ 2

2.1 Conference at London School of Economics ........................................................................ 2

2.2 15th meeting of the Conference of the Parties to UNFCCC (Copenhagen) ....................... 2

2.3 Drafting Universal Declaration of the Rights of Mother Earth for People’s World Conference ................................................................................................................................................. 3

3. PARTICIPATION IN PEOPLE’S WORLD CONFERENCE, BOLIVIA ................... 3

4. PUBLICATIONS ..................................................................................................... 3

5. CONCLUSION ....................................................................................................... 3

6. ANNEXES .............................................................................................................. 4

1. INTRODUCTION

The University of Cape Town (“UCT”) entered into an agreement with Cormac Cullinan, a director of EnAct International and an honorary research associate of UCT, for a period of one year commencing on 16 February 2009 (being the date on which the grant agreement was signed by UCT). The agreement provided that UCT would make a grant to Cormac Cullinan to provide assistance in writing a book on environmental governance, which the Centre of Criminology (“the Centre”) and the law faculty would be entitled to list as part of the Centre’s outcomes in their reports to the University and to funding bodies like the NRF (clause 4.1). The grant has been used to fund preparatory work and research in relation to a book on environmental governance, but with the agreement of the director of the Centre of Criminology, Professor Clifford Shearing, it has also been used to fund a number of specific publications and activities beneficial to the Centre. The purpose of this report is to detail the purposes for which the funds in question were used.

2. ACTIVITIES FUNDED BY GRANT

The grant funds have been used as part funding for the following activities carried out by Cormac Cullinan.

2.1 Conference at London School of Economics

An EnAct associate in London organised a conference held on 23 June 2009 at the London School of Economics (“LSE”) to discuss proposals for a “Universal Declaration of Planetary Rights”. This conference was co-hosted by the LSE, the Centre for Criminology and EnAct International (see the publicity material attached as Annex A). The Conference discussed the prospects of the United Nations General Assembly adopting a universal declaration recognising that other-than-human beings have inherent rights. The conference was chaired by Dr Veerle Heyveart, a lecturer in environmental law at the LSE, and the speakers were Sir Crispin Tickell (former British ambassador to the United Nations), Cormac Cullinan and Polly Higgens (former barrister and EnAct associate at that time). The conference was attended and well received and creates a good basis for further cooperation between the Centre and the LSE in relation to the broadening and contextualising of the concept of human rights.

2.2 15th meeting of the Conference of the Parties to UNFCCC (Copenhagen)

Cormac Cullinan was invited by the Bolivian government to address an event at the 15th meeting of Conference of the Parties to the United Nations Framework Convention on Climate Change (“COP 15”) held in December 2009 in Copenhagen (see the attached publicity material marked Annex B). The event was organised to support the call by the President Evo Morales of Bolivia for the adoption of a Universal Declaration on the Rights of Mother Earth. The view of the Bolivian government and other Latin American countries in the Bolivarian Alliance (“ALBA”) is that climate change is a symptom of the dysfunctional relationship between the dominant civilisations in the world today and nature, and consequently climate change can only be effectively addressed by defending the rights of nature (Mother Earth) and preventing further exploitation.

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2.3 Drafting Universal Declaration of the Rights of Mother Earth for People’s World Conference

As a consequence of the failure of the COP 15 conference, President Evo Morales convened a People’s World Conference on Climate Change and the Rights of Mother Earth in Cochabamba, Bolivia from 19 to 22 April 2010. On the basis of his expertise in this field, the Bolivian government requested Cormac Cullinan to prepare a draft Declaration and commentary on it for discussion at the Conference. Grant funding was used for the purpose of undertaking legal research in order to draft the Declaration and commentary. These were then circulated throughout the world and posted on the internet for comment. Cormac Cullinan then revised the drafts to take account of comments received. Copies of the final pre-conference draft of the Declaration (Annex C), the commentary on it (Annex D) and the Declaration adopted by the Conference (Annex E), are attached.

3. PARTICIPATION IN PEOPLE’S WORLD CONFERENCE, BOLIVIA

The grant funding has enabled additional funds to be raised from third parties, including the Rockefeller Brothers Foundation in New York. The laws of the United States of America prevent charitable foundations such as the Rockefeller Brothers Foundation engaging in lobbying, which is construed as including the preparation of draft legal documents such as the Declaration. However, because the drafting of the Declaration could be funded by the University of Cape Town under this grant, the Rockefeller Brothers Foundation was willing to advance substantial further amounts to pay for the participation by Cormac Cullinan in the People’s World Conference in Bolivia and for communications with collaborators throughout the world leading up to, and subsequent to, the Conference itself. The Conference was attended by more than 32 000 people and many governments sent representatives. At the Conference, Cormac Cullinan was elected co-president of Working Group 3 which produced the Universal Declaration of the Rights of Mother Earth that was subsequently adopted by the Conference.

4. PUBLICATIONS

A list of various articles and chapters of books written by Cormac Cullinan which relate to the work funded by the grant is attached as Annex F. These include a chapter in the 2010 State of the World Report published by The World Resources Institute in Washington DC, a well respected and influential international publication.

5. CONCLUSION

On the basis of the above, it is clear that the grant funds have enabled the undertaking of a substantial body of innovative legal work which will benefit the reputation of the Centre, both nationally and internationally. Please do not hesitate to contact us should you require any clarification or further information regarding the above.


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6. ANNEXES

ANNEX A


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ANNEX B


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ANNEX C

UNIVERSAL DECLARATION OF THE RIGHTS OF MOTHER EARTH

[draft 12 April 2010]

Preamble

We, the peoples and nations of Earth: gratefully acknowledging that Mother Earth gives us life, nourishes and teaches us, guides us through her laws and provides us with all that we need to live well;

recognizing that Mother Earth is an indivisible community of diverse and interdependent beings with whom all peoples and nations share a common destiny and to whom we must relate in ways that benefit Mother Earth; acknowledging that by attempting to dominate and exploit Mother Earth and other beings, including by establishing political, legal and economic systems that permit and promote excessive consumption, greed, social injustice and the abuse and pollution of Mother Earth, humans have caused severe destruction, degradation and disruption of the life-sustaining communities, processes and balances of Mother Earth which now threatens the wellbeing and existence of many beings as result of phenomena such as climate change; [conscious that this destruction is also harmful to our inner wellbeing and is offensive to the many faiths, wisdom traditions and indigenous cultures for whom Mother Earth is sacred;] [acutely conscious of the critical importance and urgency of taking decisive, collective action to prevent humans causing climate change and other impacts on Mother Earth that threaten the health, lives, rights and freedoms of humans and other beings and to transform long-established destructive systems and behavior patterns;]

[accepting our responsibility to one another, future generations and Mother Earth to heal the damage caused by humans and to pass on to future generations values, traditions, and institutions that support the flourishing of Mother Earth; ] conscious that recognizing only the rights of human beings creates a damaging imbalance within the interdependent community of beings, that human rights and well being cannot be secured without recognizing and defending the rights of Mother Earth and all beings, and that inspiring examples of cultural practices and laws that do so already exist;

convinced that we must urgently establish law, institutions and cultural practices that ensure that the inalienable rights and freedom of Mother Earth and of all beings are recognised and that the duty of every person to respect and defend those rights and freedoms is enforced by law;


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proclaim this Universal Declaration of the Rights of Mother Earth to complement the Universal Declaration of Human Rights and to serve as a common standard by which the conduct of all human beings, organizations, and cultures can be guided and assessed; call upon the United Nations to adopt and proclaim this Declaration and to establish international institutions to promote greater understanding of this Declaration and related initiatives; to assist nations, States, and regional and international organizations to implement this Declaration, and to provide a remedy for anticipated or actual violations by humans of the freedoms, rights and duties in this Declaration in situations where a State or regional community of States cannot or will not provide an effective remedy; and pledge ourselves to cooperate with other human communities, public and private organizations, governments, and the United Nations, to secure the universal and effective recognition and observance of the fundamental freedoms, rights and duties enshrined in this Declaration, among all the peoples, cultures and states of Earth.

Article 1. Fundamental rights, freedoms and duties (1) Mother Earth is a living, indivisible, self-regulating and community of interrelated beings

which sustains and reproduces all life-forms on Earth. Each being is defined by its relationships within this community and with the Universe as a whole. Fundamental aspects of these relationships are expressed in this Declaration as inalienable rights, freedoms and duties.

(2) These fundamental rights, freedoms and duties arise from the same source as existence

and are inherent to all beings, consequently they are inalienable, cannot be abolished by law, and are not affected by the political, jurisdictional or international status of the country or territory within which a being exists.

(3) All beings are entitled to all the fundamental rights and freedoms recognized in this

Declaration without distinction of any kind, such as may be made between organic, living beings and inorganic, non-living beings, or on the basis of sentience, kind, species, use to humans, ownership by human beings or legal persons or other status.

(4) Just as human beings have human rights, other beings also have additional rights,

freedoms and duties that are specific to their species or kind and appropriate for their role and function within the communities within which they exist.

(5) The rights of each being are limited by the rights of other beings to the extent necessary

to maintain the integrity, balance and health of the communities within which it exists. Article 2. Fundamental rights of Mother Earth Mother Earth has the following fundamental rights and freedoms:

(a) the right to exist;

(b) the right to maintain her integrity as a living community of interrelated beings;

(c) the freedom to continue the vital cycles, functions and processes that reproduce and sustain life and all beings, free from pollution, the threat of nuclear or chemical warfare; or human modification that threatens those cycles, functions and processes.


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Article 3. Rights and freedoms of all beings (1) Every being has the following fundamental rights and freedoms:

(a) the right to exist;

(b) the right to maintain its identity and integrity as a distinct, self-regulating being;

(c) the right to habitat or a place to be;

(d) the right to benefit from air, water and soil that is free from harmful contaminants;

(e) the freedom to participate in accordance with its nature in the ever-renewing processes of Mother Earth free from pollution, harmful radiation, genetic contamination or human modifications of its structure or functioning that threaten its integrity or healthy functioning; and

(f) the freedom to relate to other beings and to participate in communities of beings in

accordance with its nature.

(2) Every being has –

(a) the right to be recognised everywhere as a subject before the law;

(b) the right to equal protection of the law and equal protection against any discrimination by humans in violation of this Declaration and against any incitement to such discrimination;

(c) the right to an effective remedy in respect of threats, violations or attacks by human

beings or legal persons on the rights and freedoms recognized in this Declaration; and

(d) the right to have a person, organization, State or other legal person institute legal or administrative proceedings to defend and enforce its rights and freedoms and to be represented in those proceedings by a competent person.

Article 4. Freedom of animals (1) Every animal has the fundamental right to live free from torture, cruel treatment or

punishment by human beings.

(2) No human being has the right to confine another animal or to remove it from its habitat unless doing so is justifiable with reference to the respective rights, duties and freedoms of both the human and other animal concerned.

(3) Any human being that confines or keeps another animal must ensure that it is free to

express normal patterns of behavior, has adequate nourishment and is protected from injury, disease, suffering and unreasonable fear, pain, distress or discomfort.

Article 5. Rights and duties of human beings

(1) Every human being :


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(a) has the right to be educated about Mother Earth and how to live in accordance with this Declaration; and

(b) is responsible for living in accordance with this Declaration.

(2) Human beings, States, corporate entities and other legal persons do not have the right to violate the rights or freedoms recognized in this Declaration and any act or omission that does so, or law that compels a person to do so, is unlawful.

(3) Human beings, States and regional and international organizations and other legal persons have a special responsibility to avoid acting in violation of this Declaration and must urgently establish values, cultures, and legal, political, economic and social systems consistent with this Declaration that: (a) promote the full recognition, application and enforcement of the freedoms, rights and

duties set out in this Declaration; (b) ensure that the pursuit of human wellbeing contributes to the wellbeing of Mother

Earth, now and in the future; (c) educate human beings in a way that that promotes a love of Mother Earth,

compassion, understanding, tolerance and affection among all humans and between humans and other beings, and the observance of the fundamental freedoms, rights and duties in this Declaration;

(d) promote human practices that acknowledge and respect Mother Earth and other

beings and the harmonious co-existence of humans and other beings;

(e) discourage activities, production systems and consumption patterns that

increase the risk that the rights and freedoms in this Declaration will be violated, and promote peace, social justice and other means of reducing that risk;

(f) prevent humans from causing harmful disruptions of vital ecological cycles,

processes and balances, and from compromising the genetic viability and continued survival of other species;

(g) ensure that the damage caused by human violations of the freedoms, rights

and duties in this Declaration is rectified where possible and that those responsible are held accountable for restoring the integrity and healthy functioning of affected communities; and

(h) enable people to defend the rights of Mother Earth and of all beings.

(4) Local, sub-national, national governments, regional and international organizations

and other bodies with the necessary authority must adopt, implement and enforce laws that enable the effective protection and enforcement of the rights, freedoms and duties in this Declaration.


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Article 6. Interpretation (1) The term “being” refers to natural beings which exist as part of Mother Earth and

includes a community of other beings and all human beings regardless of whether or not they act as a corporate body, state or other legal person.

(2) Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms in it.

(3) Nothing in this Declaration may be interpreted as restricting the recognition of

other fundamental rights, freedoms or duties of all or specified beings.


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ANNEX D COMMENTARY ON DRAFT UNIVERSAL DECLARATION ON THE RIGHTS OF MOTHER

EARTH

[draft of 12 April 2010] Introduction

This commentary explains some of the thinking that informed the drafting of the second draft of the Universal Declaration of the Rights of Mother Earth dated 12 April 2010 (“the Declaration”) in order to facilitate discussion of the draft text. The second draft takes account of comments received in response the first draft dated 21 February 2010. This commentary includes the text of the Declaration in bold (text that has been added or amended since the first draft is underlined) followed by a commentary on that text and on some of the comments received. The term “Mother Earth” is common to many cultures but is used here to refer to Earth as a whole, including the many ecosystems or communities of beings that form part of Earth. Distinct entities that have come into being and exist within this “Earth community” are referred to as “beings”. Referring to Earth as “mother’ is also intended to emphasises that Earth is a subject capable of having rights and not merely a collection of objects or “natural resources” available for exploitation by humankind. Some commentators expressed the view that some people, particularly those unfamiliar with indigenous cultures that use the term “Mother Earth” may find the term alienating and that it would be preferable to replace it with the term “Earth Community”. The Declaration has been drafted:

• as an expression of a common understanding among the peoples of Earth that since the wellbeing of humankind cannot be sustained at the expense of Mother Earth, our legal, political and economic systems must be changed fundamentally so that they promote the integrity and health of Mother Earth, instead of facilitating her exploitation by humans; and

• in a form that will enable it to be adopted: (a) by the participants at the Peoples’ World Conference on Climate Change and the Rights of Mother Earth which will take place in Cochabamba, Bolivia from 19 to 22 April 2020, and (b) by the General Assembly of the United Nations (with minor modifications).

The Declaration is intended to serve as a means of uniting all who believe that the fundamental issues facing humanity cannot be addressed successfully unless the human cultures of the world adopt values and develop systems of governance that enable human beings to play a beneficial rather than a destructive role within the Earth community. In this sense it is a declaration of interdependence (rather than independence) and a commitment to act accordingly for the benefit of all the beings of Earth, including future generations. The Declaration also has the potential to play an extremely important mobilising and educational role and it is hoped that it will facilitate the crystallisation of a core of common values among the cultures of the world that will encourage humans to contribute to the health of Mother Earth and to all beings.


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Structure and content

The structure of the Declaration is based on that of the Universal Declaration of Human Rights (“UDHR”) and several of the articles mirror or are similar to articles in the UDHR. The articles are arranged in a sequence which begins with defining the nature of fundamental rights, freedoms and duties (article 1), then sets out the fundamental rights of Mother Earth as a whole (article 2), the freedoms and rights of all beings (article 3) and the legal enforcement of these rights and duties, before dealing with the freedoms that apply specifically to animals (article 4), and rights and duties of humans (article 5) and finally questions of interpretation (article 6). The Declaration seeks to build on the pioneering insights and texts of several earlier

international law instruments, including the UDHR, the World Charter for Nature,1

the Earth Charter, the draft Universal Declaration on Animal Welfare and the Charter for Compassion. Relationship with other texts

The Declaration is intended to complement, rather than supersede, the Earth Charter, the World Charter for Nature, and the UDHR and. Although the Declaration is highly consistent with these documents, it differs from them in certain important respects. In particular, the Declaration seeks to move beyond a human-centred or anthropocentric perspective and instead adopts a more Earth-centred or eco-centric perspective. The Declaration, unlike these other source documents, explicitly recognises that Earth and all beings that form part of the Earth community are subjects who have certain fundamental rights and freedoms that arise from their existence as part of that community. The Earth Charter articulates a vision and principles to promote the establishment of an ethical foundation for ecologically sustainable human societies. The Declaration is wholly compatible with the fundamental principles reflected in the Earth Charter, namely: respect and care for the community of life; ecological integrity; social and economic justice; democracy, non-violence and peace. The preamble of the Earth Charter states that “it is imperative that we, the peoples of Earth, declare our responsibility to one another, to the greater community of life, and to future generations.” The Declaration seeks to articulate those responsibilities to the greater community of life in legal terms that can be used to inspire and guide the development of national, regional and local laws and governance systems that are consistent with the vision of the Earth Charter. However the Earth Charter provides more detailed prescriptions than the Declaration as to what should be done in order to address the fundamental challenges facing humanity at this time. Accordingly the Earth Charter could be used to guide the implementation of the Declaration. Philosophical approach

Most international and domestic (national) law today is based on the underlying assumption that humans are separate from, and superior to, other life forms and that human wellbeing is best achieved by exploiting “natural resources”. This worldview is reflected in the fact that most legal systems only recognise human beings and entities such as corporations and governments, as legal persons capable of holding rights and define everything else as objects subject to property law. The Declaration on the other hand reflects contemporary understandings that the Universe is a system governed by certain fundamental principles such as a tendency to differentiate itself into different self-regulating entities which despite appearing to be distinct from other parts of

1 This was a resolution adopted by the General Assembly of the United Nations on 28 October 1982.


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the system, nevertheless remain in relationship with the system as a whole thereby creating a “community”. (This is sometimes referred to the principle of cosmogenesis). Thomas Berry expresses this concept more poetically in his statement that “Earth is a communion of subjects and not a collection of objects”. This approach is known as “Earth

jurisprudence”2

and is consistent not only with the findings of physicists and ecologists but also with the worldviews of many indigenous cultures and wisdom traditions. The development of Earth jurisprudence has been particularly influenced by the writings of

Thomas Berry,3

particularly with regard to the understanding of the nature of the Earth community and of fundamental rights, freedoms and duties. One of the consequences of applying this approach is that the Declaration grounds the specific rights, freedoms and duties expressed in the Declaration in the need to maintain the integrity, functioning and health of Mother Earth, rather than on the need to restrain the worst excesses of human behaviour. This approach is similar to that taken by the Abolitionists who campaigned for the complete abolition of slavery instead of focussing on improving the conditions under which slaves were kept. The Abolitionists understood that to refuse to recognise the right of a human being to have rights is to deny that person’s identity and entrenches exploitative relationships that prevent the emergence of societies based on freedom and equality. Most environmental laws are focussed on limiting the extent to which humans may exploit and abuse Mother Earth and do not recognise that if human beings have inherent human rights then other beings must also fundamental rights. Failing to recognise that other beings are subjects also obscures the reality that human survival and wellbeing is dependent on our ability to observe the fundamental “rules” or principles that govern the functioning of the Earth community and to maintain healthy relationships with other beings. In order to do so we must first recognise that other beings are subjects with rights rather than objects to be exploited. Title: Universal Declaration of the Rights of Mother Earth The title is that suggested by the President of Bolivia, Evo Morales Ayma, and refers to the concept of the Earth as being a nurturing mother which is common to many cultures in different forms.4 Earth is comprised of many different beings (including human beings) in relation to one another and consequently can be described as a community of beings. The term “Mother Earth” refers to this community of beings as a whole (“the Earth community”). This means that human beings have rights and duties in relation to other human beings, beings that are not human, and to the Mother Earth (i.e. the Earth community as a whole). However, since humans are part of Mother Earth, the rights and obligations between humans and Mother Earth are of direct relevance to the exercise of rights and duties between human beings. The Declaration expresses the reality that, in defending the rights of Mother Earth and in fulfilling

2 This approach is explained in Wild Law. A manifesto for Earth Justice by Cormac Cullinan (Siberink Cape Town, 2002 and Green Books, Totnes, 2003). 3 The key aspects of his writings in relation to law are usefully summarised in Thomas Berry’s book “Evening Thoughts: Reflecting on Earth as Sacred Community”, edited by Mary Evelyn Tucker, and published in 2006 by Sierra Club Books, San Francisco. See in particular Chapter 9 Legal conditions for Earth’s survival and Appendix 2 Ten Principles for Jurisprudence Revision. 4 Since the Declaration defines not only the rights and freedoms of Mother Earth, but also of the beings and communities of beings of which Mother Earth is formed, it could be entitled simply “The Universal Declaration of Rights” to indicate that it provides the context for species-specific articulation of rights such as the Universal Declaration of Human Rights.


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our duties to Mother Earth, we are also defending the rights of humans as members of that community. The Brazilian philosopher and theologian, Leonardo Boff (who is also a Commissioner of the Earth Charter), has put forward the following five reasons why it is valid to regard Earth as a subject capable of holding rights and to relate to her as a mother. 1. Regarding Earth as the great Mother who provides all that humans need to live is of

ancient origin, common to many cultures, and continues to be observed by many native people.

2. The scientific Gaia theory has demonstrated that life on Earth has modified the Earth (in

particular the atmosphere) to create conditions conducive to life and accordingly, we can say not only that there is life on Earth, but also that Earth itself is alive. As a living organism, Mother Earth, like other living organisms, has intrinsic value and the right to live.

3. Humanity is part of the organic whole which we call Earth, and consequently the Earth,

like us, is alive. 4. Both Earth as a whole, and human beings are moments in the ongoing birth of the

cosmos (the process of cosmogenesis) and since humans are part of Earth, Earth is also conscious and intelligent and a subject with rights.

5. The Universe includes not only all beings that exist or will exist, but also the set of all

relationships and networks between them and the information within them. Everything is related and nothing can exist outside of relationship. Although each being has its own way of relating to others and hence subjectivity, the overriding principle is that everything is interconnected. Consequently, each part of the Universe has both individual subjectivity and participates in the subjectivity of the whole. Subjects are capable of holding rights.

Preamble The preamble explains the reasons for the adoption of the Declaration. The logic of the Declaration is reflected in the sequence of the paragraphs in the preamble. (The paragraphs in square brackets were omitted in the version of the Declaration proposed by the participants in the Pre-conference of the Indigenous Peoples and Social Organisation held in Cochabamba on 29 and 30 March 2010 (“the Pre-conference”). In essence the paragraphs in the Preamble:

1. express gratitude for being brought into being and nourished by Mother Earth; 2. recognise that the future of human beings is inextricably bound to that of all other

beings; 3. acknowledge that our denial of this fact and our misguided attempts to dominate

Mother Earth have already caused enormous damage to the planet and continues to threaten life;

4. [recognise that this destruction also affects our inner wellbeing and is contrary to many religious beliefs];

5. [recognise the urgency of taking action to address climate change and other threats caused by humans;]


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6. [accept responsibility for healing the damage caused and putting in place systems to ensure that we don’t repeat the same mistakes;] and

7. express the conviction that it is necessary to recognise and defend the rights of Mother Earth and other beings and that human rights cannot be secured unless this is done;

8. proclaim the Declaration, call upon the United Nations to do so and to establish the necessary institutions to support its effective implementation;

9. pledge that those who proclaim it will co-operate to ensure that it is universally recognised and applied.

We, the peoples and nations of Earth: This formulation has been adopted: (a) to emphasise that this Declaration is being made by human beings (as distinct from the

other beings referred to in the Declaration); (b) to emphasise the collective “grass-roots” nature of this initiative; and (c) to ensure that the Declaration may be adopted by individuals, organisations,

governments and international bodies such as the United Nations (i.e. people acting either individually or collectively).

The UDHR on the other hand was proclaimed by the General Assembly of the United Nations whereas the Earth Charter simply speaks of “we”. gratefully acknowledging that Mother Earth gives us life, nourishes and teaches us, guides us through her laws and provides us with all that we need to live well; It is appropriate to begin with an expression of gratitude and humility. The referee to living well is intended to refer to the concepts of “well living” expressed so eloquently by indigenous cultures in Latin America. This paragraph is also intended to emphasise that human wellbeing is derived from Mother Earth. The entire Declaration is based on the fact that human beings form an inseparable part of the wider community that we call “Earth” and are wholly dependent on it. The failure of contemporary governance systems to recognise this scientific fact is a significant cause of many environmental crises facing the world today. One of the fundamental objectives of the Declaration is to facilitate a transition from governance systems based on the mistaken belief that the best way to increase human wellbeing is to exploit Mother Earth, to governance systems that recognise that future human wellbeing depends on extending current governance systems based on a “social contract” to one based on an “ecological-social contract” which includes the other-than-human beings. This formulation has been influenced by the writings of Thomas Berry who articulates ten

principles to guide the revision of jurisprudence5

. The ninth principle states:

“9. These rights as presented here are based on the intrinsic relations that the various components of Earth have to each other. The planet Earth is a single community bound together with interdependent relationships. No living being nourishes itself. Each component of the Earth community is immediately or mediately dependent on every other member of the community for the nourishment and assistance it needs for its own survival.

5 See Evening Thoughts, Appendix 2 Ten Principles for Jurisprudence Revision, pp 149 -150.


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This mutual nourishment, which includes the predator-prey relationship, is integral with the role that each component of the Earth has within the comprehensive community of existence.” (Evening Thoughts, page 150.)

The amendments suggested by the Pre-Conference draws attention to the fact that there are laws of nature (i.e. of Mother Earth) with which we must comply. recognizing that Mother Earth is an indivisible community of diverse and interdependent beings with whom all peoples and nations share a common destiny and to whom we must relate in ways that benefit Mother Earth; The reference to a common destiny has been included to counteract the tendency to apply a mechanistic and reductionist approach in dealing with environmental issues, and in particular, to make a strong distinction between measures to protect nature and those to protect humans. This leads to, for example, developing climate change adaptation and mitigation strategies separate from strategies to combat the loss of biological diversity. The intention here is to emphasise the fact that the future of humanity is bound up with the future of Mother Earth as a whole and consequently, the idea that it is possible to have a favourable future for human beings within a context of environmental degradation, is a dangerous illusion. The concept of a common destiny is also central to the Earth Charter which states in the first paragraph of the preamble that “to move forward we must recognise that in the midst of a magnificent diversity of cultures and life forms we are one human family and one Earth community with a common destiny”. This paragraph reflects the observable reality that the various aspects or components of a system interact with each other (i.e. each has an influence on the others) and that in ecological communities these relationships will be sustainable over long periods only if they involve mutual “benefit”. Consequently, if human relationships with other beings are not to deteriorate further, the central issue is whether or not humans can re-establish relationships which benefit not only human beings but also other beings, and ultimately Mother Earth as a whole. This is the fundamental challenge of our times. The language of relationships is also fundamental to the Declaration because it is the relationships between the various beings that create the community that we call “Earth” or “Mother Earth”. This shift away from ideas of domination or ranking based on the supposed importance of particular parts of the system, to an emphasis on the relationships between the different beings or “components of the Earth system” which each have a role to play, is fundamental to the worldview reflected in the Declaration. acknowledging that by attempting to dominate and exploit Mother Earth and other beings, including by establishing political, legal and economic systems that permit and promote excessive consumption, greed, social injustice and the abuse and pollution of Mother Earth, humans have caused severe destruction, degradation and disruption of the life-sustaining communities, processes and balances of Mother Earth which now threatens the wellbeing and existence of many beings as result of phenomena such as climate change; This paragraph is intended both to acknowledge our past errors and their life-threatening implications in the present. The recognition of our collective culpability for the immense damage to the planet that is being caused by humans is a fundamental motivation for the Declaration itself. It may be compared to the second paragraph of the preamble to the UDHR which states that:


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“Whereas disregard and contempt for human rights resulted in barbarous acts which have outraged the conscience of mankind...”

The Pre-Conference suggested the insertion of text referring to the “capitalistic system of predation, exploitation, abuse and pollution of Mother Earth”. Although capitalism is undoubtedly one of the major causes for the destruction of Mother Earth, communist social socialist systems have also created damage and accordingly a reference to capitalism has not been included in order to avoid unnecessary debates about the relative merits of capitalism and socialism. [conscious that this destruction is also harmful to our inner wellbeing and is offensive to the many faiths, wisdom traditions and indigenous cultures to whom Mother Earth is sacred;] This paragraph has been included to draw attention to the interior dimensions of environmental destruction. This has caused wide-spread psychological damage (e.g. alienation, depression, narcissism) at both the individual and collective levels. It has also been profoundly damaging to cultures and faiths for which the maintenance of respectful relationships between humans and other beings is fundamental and sacred. The drafting of this paragraph reflects the desire to acknowledge the harm to the inner worlds of all peoples and cultures. It is hoped that this will also encourage these faiths and cultures to support the Declaration. Thomas Berry expresses a similar sentiment in his tenth principle for the revision of

jurisprudence,6

which states:

“10. In a special manner, humans have not only a need for but also a right of access to the natural world to provide for the physical needs of humans and the wonder needed by human intelligence, the beauty needed by human imagination, and the intimacy needed by human emotions for personal fulfilment.”

[acutely conscious of the critical importance and urgency of taking decisive, collective action to prevent humans causing climate change and other impacts on Mother Earth that threaten the wellbeing and survival of humans and other beings and to transform long-established destructive systems and behavior patterns;] This paragraph is intended to emphasise at the outset, the need for urgent action. The timing of this initiative is motivated by the immediacy of the threats and the recognition that the window of time within which human actions may be effective, is rapidly closing. Once certain “tipping points” are passed (e.g. once certain concentrations of greenhouse gasses in the atmosphere are reached) humans will be powerless to prevent further changes. The addition of the reference to need to transform long established systems and behaviour patterns has been made in response to written comments received. [accepting our responsibility to one another, future generations and Mother Earth to heal the damage caused by humans and to pass on to future generations values, traditions, and institutions that support the flourishing of Mother Earth;]

6 See Evening Thoughts, Appendix 2 Ten Principles for Jurisprudence Revision, pp 149 -150.


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The acceptance of responsibility for addressing the harm caused by inappropriate human actions as well as to establish governance systems designed to ensure that these mistakes will not be perpetuated, is fundamental to the Declaration. Whether or not human beings successfully address the major “environmental” challenges of today will depend on whether or not we accept and act on the responsibility referred to in this paragraph.

conscious that recognizing only the rights of human beings creates a damaging imbalance within the interdependent community of beings, that human rights and well being cannot be secured without recognizing and defending the rights of Mother Earth and all beings, and that inspiring examples of cultural practices and laws that do so already exist; The paragraph has been inserted in response to the amendments suggested by the Pre-Conference and draws attention to the fact that the act of recognising human rights without simultaneously recognising the rights of Mother Earth and other beings, creates an imbalance which must now be addressed by recognising the rights of all beings and of Mother Earth as a whole. convinced that we must urgently establish law, institutions and cultural practices that ensure that the inalienable rights and freedom of Mother Earth and of all beings are recognised and that the duty of every person to respect and defend those rights and freedoms is enforced by law; This paragraph combines two of the paragraphs in the first draft. It provides the rationale for using the language of rights in order to protect Mother Earth as a whole instead of only human communities. Humans could improve their relationships with other beings in many different ways. This Declaration is based on the belief that by expressing fundamental aspects of these relationships in the language of legal rights it will be possible to more effectively mobilise and reform legal, political, economic, and value systems to this end. This paragraph also expresses the belief that legal systems should be used to protect and enforce freedoms and rights and to enforce duties. It implicitly recognises the difficulties associated with enforcing the duties of other-than-human members of the Earth community by only referring to the legal enforcement of the duties of humans. Some political theorists see the allocation of rights as part of an unwritten “social contract” among the members of a human society. Legal, political and economic, systems allocate rights among different members of human society and when these rights are infringed, the legal system and the machinery of the state (e.g. the courts) are used to enforce the rights and thereby to protect the underlying relationships. The Declaration is based on the understanding that if we accept the biological reality that human beings are an inseparable part of a community that is much wider than human beings, it follows that the “social contract” should be expanded to encompass this wider community. One of the most effective ways of beginning the process of modifying existing legal, economic and social structures to deal more effectively with this widened concept of community is to expand the concept of rights beyond the human. proclaim this Universal Declaration of the Rights of Mother Earth to complement the Universal Declaration of Human Rights and to serve as a common standard by which the conduct of all human beings, organizations, and cultures can be guided and assessed; and This paragraph recognises that the Declaration would serve a similar function to that performed by the UDHR but specifically emphasises that the Declaration is intended to


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complement rather than replace the UDHR. This is important to secure the support of human rights organisations.

call upon the United Nations to adopt and proclaim this Declaration and to establish international institutions to promote greater understanding of this Declaration and related initiatives; to assist nations, States, and regional and international organizations to implement this Declaration, and to provide a remedy for anticipated or actual violations by humans of the freedoms, rights and duties in this Declaration in situations where a State or regional community of States cannot or will not provide an effective remedy; and This paragraph has been inserted to expressly call upon the United Nations to take action both to adopt and proclaim the Declaration and to establish appropriate international institutions to ensure that it is implemented. This is important to establish the link between the Declaration and the discussions to be held at the People’s World Conference regarding the development of an International Climate Change Tribunal. A number of different proposals have been received in this regard, including proposals that: the powers of the International Court of Criminal Justice should be extend to enable it to deal with climate change issues; an International Climate Change Tribunal should be established; and a High Commission on Rights of Nature should be established. The Community Environmental Legal Defense Fund (CELDF) proposed the establishment of a High Commission on Rights of Nature:

(a) to assist member nations with developing, implementing, and enforcing Rights of Nature laws;

(b) to provide for public education and education of local, sub-national, and national government entities on the Rights of Nature; and

(c) to establish an international tribunal on Rights of Nature through which member nations and other peoples can seek redress for violations of Rights of Nature and defend the Rights of Nature on matters that are global in impact such as climate change, deforestation, and the health of oceans.

It is clear that that appropriate institutions must be established to support the implementation of the Declaration. However, the precise form which such institution should take and the extent to which existing institutions should be reformed or new institutions created, is a matter for the members of the United Nations to discuss. For this reason the Declaration does not attempt to define the nature of these institutions other than to indicate that they must both play an educative role in relation to the Declaration and provide a means of remedying violations of the rights and freedoms in the Declaration. This will require the development of an entirely new body of jurisprudence as existing international law only recognises States and certain international organisations, as subjects. It is also important that the mandate of any such institutions should be broad enough to cover all aspects of the Declaration and should not be confined merely to addressing climate change issues since climate change is only one of many symptoms of the problems caused by the dominant systems of governance in the world today. pledge ourselves to cooperate with other human communities, public and private organizations, governments, and the United Nations, to secure the universal and effective recognition and observance of the fundamental freedoms, rights and duties enshrined in this Declaration, among all the peoples, cultures and States of Earth. This paragraph is modelled on a paragraph in the preamble of the UDHR which states that:


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“Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,”

However, this paragraph seeks to recognise the fact that in the contemporary world there are many actors besides sovereign states and that all human beings share responsibility for the implementation of the Declaration, whether they act personally or collectively through various communities and institutions. Article 7. Fundamental rights, freedoms and duties This article has been included to explain the nature of the fundamental rights, freedoms and duties expressed in the Declaration because they are conceptually different from the way in which these terms are currently used and understood in international law. (6) Mother Earth is a living, indivisible, self-regulating community of interrelated

beings which sustains and reproduces all life-forms on Earth. Each being is defined by its relationships within this community and with the Universe as a whole. Fundamental aspects of these relationships are expressed in this Declaration as inalienable rights, freedoms and duties.

This paragraph expresses the understanding that each being that forms part of Mother Earth is defined by its relationships within the Earth community and that the Declaration is using the language of rights, freedoms and duties to express fundamental aspects of these relationships. The amendments have been made in response to the draft prepared by the Pre-Conference and emphasise the role of the Mother Earth in sustaining and reproducing all forms of life. (7) These fundamental rights, freedoms and duties arise from the same source as

existence and are inherent to all beings, consequently they are inalienable, cannot be abolished by law, and are not affected by the political, jurisdictional or international status of the country or territory within which a being exists.

This paragraph expresses the reasons why these rights, freedoms and duties are defined as fundamental and inalienable. It follows the thinking of Thomas Berry (as well as many indigenous cultures and wisdom traditions). Thomas Berry expresses it as follows:

“The natural world on the planet Earth gets its rights from the same source that humans

get their rights: from the Universe that brought them into being.” 7

This paragraph in effect acknowledges a higher source of law (the Universe) which is unaffected by the exercise of states of their sovereign rights (e.g. to pass legislation). This means that the fundamental rights, freedoms and duties recorded in the Declaration are recognised as having equivalent status to fundamental human rights. (8) All beings are entitled to all the fundamental rights and freedoms recognized in this

Declaration without distinction of any kind, such as may be made between organic, living beings and inorganic, non-living beings, or on the basis of use to humans, ownership by human beings or legal persons, or other status.

7 See Evening Thoughts, Appendix 2 Ten Principles for Jurisprudence Revision, pp 149 -150, principle 4.


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This paragraph is modelled on article 2 of the UDHR which states that:

“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.”

The principle of non-discrimination is important to avoid becoming mired down in complex legal debates aimed at establishing a hierarchy of legal rights and freedoms based on, for example, the degree of sentience of a particular being. This is consistent with the fundamental approach taken in the Declaration which reflects a systems perspective in which every component of the system is valuable because it influences and helps define (via relationships) the nature and functioning of every other component of the system. (9) Just as human beings have human rights, other beings also have additional rights,

freedoms and duties that are specific to their species or kind and appropriate for their role and function within the communities within which they exist.

This paragraph is intended to indicate that the list of fundamental rights, freedoms and duties in this Declaration is not comprehensive (see also article 9(3)) and that it may be appropriate to recognise additional species-specific rights, freedoms or duties as has been done with human rights. Thomas Berry has expressed this as follows:

“All rights in non-living form are role-specific; rights in the living world are specie-specific and limited. Rivers have river rights. Birds have bird rights. Insects have insect rights. Humans have human rights. Difference in rights is qualitative, not

quantitative. The rights of an insect would be of no value to a tree or a fish.” 8

As some commentators pointed, it is important to indicate that legal systems have tended to widen the range of people recognised as legal subjects over time as well as recognising more rights and extending existing rights. It is therefore important to emphasise that the Declaration does not exclude the possibility of additional rights being recognised in law in the future.

(10) The rights of each being are limited by the rights of other beings to the extent

necessary to maintain the integrity, balance and health of the communities within which it exists.

This paragraph expresses the reality that all rights must be limited (as referred to in the above quote) and that whereas in a democratic human society, limitations on rights are usually based on what is acceptable in free and democratic societies, in the case of the Earth community, limitations on the rights of individual beings are justifiable with reference to the fundamental importance of maintaining the integrity, balance and health of the communities of which they form part and ultimately of Mother Earth. Climate change is an example of the types of problems which emerge when the rights of members of a community (in this case human beings) are given more weight than those of the community as a whole.



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This also means that, for example, although a predator eating a prey animal may at first sight to appear to infringe the prey animal’s right to exist, when seen in the context of Mother Earth it is immediately apparent that the maintenance of predator-prey relationships in food chains are fundamental to the integrity, functioning and health of an ecosystem. Consequently, this would amount to a justifiable limitation on the rights of the prey animal. Article 8. Fundamental rights of Mother Earth Mother Earth has the following fundamental rights and freedoms:

(d) the right to exist;

(e) the right to maintain her integrity as a living community of interrelated beings;

(f) the freedom to continue the vital cycles, functions and processes that

reproduce and sustain life and all beings, free from pollution, the threat of nuclear or chemical warfare; or human modification that threatens those cycles, functions and processes.

The fundamental rights of Mother Earth are stated at the outset that one of the most important objectives of the Declaration is to prioritise the maintenance of the integrity and functioning of Mother Earth as a whole. Paragraph (b) has been added to emphasise this point and to mirror article 3 (1)(b).

The inclusion of paragraph (b) is intended to emphasise that Mother Earth as a whole also has the right to maintain the integrity (i.e. “wholeness”) of the Earth community. This is mirrored in article 3(1)(b) which recognizes the right of every being to maintain its identity and integrity. Paragraph (c) is inspired by article 71 of the Constitution of Ecuador adopted in September 2008 which states that:

“Nature or Pacha Mama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and evolutionary processes.” (unofficial translation from the Spanish)

Paragraph (c) has been rephrased as a freedom rather than a right. (This should be read with article 5(2)). This is intended to emphasise that humans have no right to restrict Mother Earth’s freedom of being and freedom to function. Specific references to pollution, the threat of nuclear or chemical warfare and human modification (e.g. certain types of mining) have been added in response to comments received.

Article 9. Rights and freedoms of all beings (3) Every being has the following fundamental rights and freedoms:

(a) the right to exist; The formulation of paragraphs (a), (b) and (e) are based on the fifth of Thomas Berry’s 12 principles for jurisprudence revision which reads:


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“Every component of the Earth community, both living and non-living, has three rights: the right to be, the right to habitat or a place to be, and the right to fulfil its role in the ever-

renewing processes of the Earth community.” 9

(b) the right to maintain its identity and integrity as a distinct, self-regulating being;

The right to integrity can, to some extent, be understood as an elaboration of the right to exist provided for in article 3(a). Unless a being can maintain its integrity and autonomy, it will lose its identity and thereby cease to exist as a being and hence the capacity to hold rights.

(c) the right to habitat or a place to be;

(d) the right to benefit from air, water and soil that is free from harmful

contaminants;

This paragraph has been added in response to several proposals to include rights to clean air and clean water, but could be regarded as a specific application of the freedom set out in paragraph (e).

(e) the freedom to participate in accordance with its nature in the ever-renewing processes of Mother Earth free from pollution, harmful radiation, genetic contamination or human modifications of its structure or functioning that threaten its integrity or healthy functioning; and

In order to participate in the ever-renewing processes of Mother Earth (see article 3(c)) every being must be able to perform its natural functions. Accordingly, this paragraph recognises that although a degree of pollution or human interference with a being may be acceptable, this will amount to an infringement of the right to integrity (if it threatens the integrity) or the right to participate (if it interfered with the healthy functioning) of the being.

(f) the freedom to relate to other beings and to participate in communities of

beings in accordance with its nature. Since the Universe is constituted by the inter-relationships or communion between the many different subjects that form part of it, it follows that the protection of this aspect of the Universe is of fundamental importance. Communities cannot be created or emerge unless beings are free to relate to one another and to participate in communities. This right can therefore also be seen as ancillary to the right to participate in the processes of Mother Earth (article 3(e)). This right is analogous to the right in article 20(1) of the UDHR which states that:

“Everyone has the right to freedom of peaceful assembly and association.”

However, it is also intended to capture some of the sentiments which underlie article 13 (freedom of movement and residence), article 18 (right to freedom of thought, conscience and religion), and article 19 (freedom of opinion and expression) insofar as these human rights



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are intended to safeguard the rights of human beings to play their chosen role within human communities.

(4) Every being has – Article 3(2) is a revised version of what was article 7 (Protection of the law) in the first draft of the Declaration. Unlike the rights and freedoms on article 3(1) which originate for the Universe itself, article 3(2) deals with how human legal systems must recognise the rights and freedoms in the Declaration.

(a) the right to be recognised everywhere as a subject before the law; This paragraph reflects the sentiment that is expressed in article 6 of the UDHR in relation to human beings.

“Article 6. Everyone has the right to recognition everywhere as a person before the law.

Extending the protection of the law to other beings as a means towards the greater goal of establishing an ecologically sustainable human presence on Earth, is fundamental to the Declaration. The law will be one of the primary means of implementing the Declaration.

(b) the right to equal protection of the law and equal protection against any

discrimination by humans in violation of this Declaration and against any incitement to such discrimination;

This paragraph combines the contents of paragraphs 7 (b), (c) and (d) of the first draft of the Declaration with the exception of the text relating to remedies which is now included in paragraph (c). Paragraph (b) is based on article 7 of the UDHR which states:

Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and any incitement to such discrimination.”

(c) the right to an effective remedy in respect of threats, violations or attacks by

human beings or legal persons on the rights and freedoms recognized in this Declaration; and

This paragraph mirrors article 8 of the UDHR which states:

“Article 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”

The amendments are intended to make it clear that the remedies must extend to threats to violate the rights and freedoms in the Declaration and makes it clear that remedies must be provided in relation to violations by legal persons. The establishment of appropriate institutions at the international level (as referred to in the preamble) will be important in this regard, particularly if States cannot or will not provide appropriate remedies in national law.


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The concept of an effective remedy is particularly important in this context and would justify the reform of legal systems to promote restorative justice (which aims to restore damaged relationships between the litigants or parties in dispute) as opposed to retributive justice (aimed primarily at punishing wrongdoers). As many writers have pointed out, many of the sanctions imposed by environmental laws are of little benefit to the other-than-human beings who are often the true victims of environmental crimes. In other words the remedies currently provided for in law would not be effective from the perspective of the beings that have suffered the harm.

(d) the right to have a person, organization, State or other legal person institute

legal or administrative proceedings to defend and enforce its rights and freedoms and to be represented in those proceedings by a competent person.

Paragraph (d) has been added in response to comments about the importance of imposing an obligation on peoples and states to defend the rights and freedoms recognised by the Declaration. The right to competent representation draws attention to the fact that States or other parties will have to pay for competent persons to represent other-than-human beings in legal proceedings. Article 10. Freedoms of animals This article combines articles 4 and 5 of the first draft of the Declaration. (1) Every animal has the right to live free from torture, cruel treatment or punishment by human beings. Unlike the preceding articles, this article applies only to animals. It is anticipated that the inclusion of this article will be important to secure the support of animal welfare and animal rights organisations. It can be understood as a more general formulation of article 5 of the UDHR which states that:

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

(2) No human being has the right to confine another animal or to remove it from its habitat unless doing so is justifiable with reference to the respective rights, duties and freedoms of both the human and other animal concerned. This paragraph is a reflection of the sentiments expressed in the following articles of the UDHR:

“Article 3. Everyone has the right to life, liberty and security of person.” and “Article 9. No one shall be subject to arbitrary arrest, detention or exile.”

This article is expressed in the negative (i.e. humans do not have the right to confine animals or remove them from their habitat without adequate justification) in order to emphasise the limits on human powers. The paragraph recognises that there would be some circumstances in which confinement or removal from habitat would not constitute a violation of the Declaration (e.g. in the case of farm animals) and so would be “justifiable”. However there is likely to be considerable disagreement regarding the circumstances in which confinement or


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removal from habitat would be justifiable. It is envisaged that this would be debated and refined over time and that there may well be different answers in different places and circumstances.

The freedom from arbitrary removal from habitat (i.e. removal that cannot be justified under the Declaration) is also important to protect the right of every being to habitat (article 3(1)(c)) and the freedom to participate in accordance with its nature in the processes of Mother Earth (article 3(1)(e)). (3) Any human being that confines or keeps another animal must ensure that it is free to express normal patterns of behaviour, has adequate nourishment and is protected from injury, disease, suffering and unreasonable fear, pain, distress or discomfort. This paragraph has been drafted to be consistent with the draft Universal Declaration on Animal Welfare which records in the preamble that:

“Aware that the ‘five freedoms (freedom from hunger, thirst, and malnutrition; freedom from fear and distress; freedom from physical and thermal discomfort; freedom from pain, injury and disease; and freedom to express normal patterns of behaviour)’ and the ‘three Rs (reduction in numbers of animals; refinement of experimental methods; and replacement of animals with non-animal techniques)’ provide valuable guidance for the use of animals;”

Article 11. Fundamental duties of human beings (5) Every human being :

(a) has the right to be educated about Mother Earth and how to live in accordance

with this Declaration; and Paragraph (a) is inspired by article 26 of the UDHR and is intended to recognise the fundamental importance of education in improving human attitudes to and relationships with Mother Earth and other beings. Education will be vital to teach human communities the fundamental importance of finding a way to occupy an ecological niche within the Earth community which enables them to meet their own needs in a manner that is also beneficial to Mother Earth as whole. (This right was in paragraph (1) of article 8 (Human education) of the first draft of the Declaration.)

(b) is responsible for living in accordance with this Declaration.

This new subparagraph is intended to emphasise that every person is under a duty to live in a manner that does not violate the fundamental rights of other beings.

(6) Human beings, States, corporate entities and other legal persons do not have the

right to violate the rights or freedoms recognized in this Declaration and any act or omission that does so, or law that compels a person to do so, is unlawful. This new paragraph makes it clear that it is fundamentally unlawful to violate the rights and freedoms recognised in the Declaration regardless of whether or not the violation is permitted or required by human laws. This is because these fundamental rights and freedoms arise because the beings that hold them exist as part of Mother Earth and consequently cannot be abolished by law (see Article 1(2)). This is important because


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many contemporary legal systems give priority to property laws with the result that many acts to protect Mother Earth are then characterised as violations of existing rights. As Chilean lawyer Godofredo Stutzin pointed out in 2002, one practical advantage of recognizing rights for nature is that anyone seeking to alter or destroy any aspect of nature would have to put forward reasons to justify why this should be permitted, instead of making people who wish to prevent destruction prove why nature should be conserved.10

(7) Human beings, States and regional and international organizations and other legal

persons have a special responsibility to avoid acting in violation of this Declaration and must urgently establish values, cultures, and legal, political, economic and social systems consistent with this Declaration that: This article speaks of human beings having a “special responsibility”. This is informed by the view that as the ability of humans to modify Mother Earth and our knowledge of the functioning of Earth systems increase, so too should our responsibility for ensuring that we do not cause harm. This article emphasises the urgency of establishing appropriate systems to give effect to the Declaration (i.e. individual actions are insufficient) and also of taking action to restore the integrity and functioning of communities damaged by humans (“restorative justice”). The Earth Charter is particularly useful in identifying many of the specific changes to the systems which should be implemented in order to give effect to this article. (a) promote the full recognition, application and enforcement of the freedoms,

rights and duties set out in this Declaration; (b) ensure that the pursuit of human wellbeing contributes to the wellbeing of

Mother Earth, now and in the future; (c) educate human beings in a way that that promotes a love of Mother Earth,

compassion, understanding, tolerance and affection among all humans and between humans and other beings, and the observance of the fundamental freedoms, rights and duties in this Declaration;

Most of paragraph (c) previously appeared in paragraph (1) of article 8 (Human education) of the first draft of the Declaration. The reference to “compassion” is intended to link the Declaration with the Charter for Compassion. (d) promote human practices that acknowledge and respect Mother Earth and other

beings and the harmonious co-existence of humans and other beings; Paragraph (d) has been inserted in response to the emphasis on the importance of practices in the documents adopted by the Pre-Conference. (e) discourage activities, production systems and consumption patterns that

increase the risk that the rights and freedoms in this Declaration will be violated, and promote peace, social justice and other means of reducing that risk;

Paragraph (e) has been inserted in response to comments concerning the need to transform societal structures and practices that threaten the rights and freedoms in the

10Godofredo Stutzin, “Nature’s Rights,” Resurgence, January-February 2002, pp. 24–26


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Declaration. This paragraph is also intended to draw attention to the fact that peace and social justice are inseparably connected with the protection of the rights of Mother Earth. (f) prevent humans from causing harmful disruptions of vital ecological cycles,

processes and balances, and from compromising the genetic viability and continued survival of other species;

(g) ensure that the damage caused by human violations of the freedoms, rights and

duties in this Declaration is rectified where possible and that those responsible are held accountable for restoring the integrity and healthy functioning of affected communities; and

(h) enable people to defend the rights of Mother Earth and of all beings.

(8) Local, sub-national, national governments, regional and international organizations

and other bodies with the necessary authority must adopt, implement and enforce laws that enable the effective protection and enforcement of the rights, freedoms and duties in this Declaration. This paragraph has been inserted in response to comments about the importance of the Declaration imposing a specific obligation on law-making bodies at every level to make, implement and enforce laws that give effect to the Declaration.

Article 12. Interpretation (4) The term “being” refers to natural beings which exist as part of Mother Earth and

includes a community of other beings and all human beings regardless of whether or not they act as a corporate body, state or other legal person.

Rights and freedoms must be held by a subject but defining that subject is difficult in the face of the reality that nature organises itself into self-regulating wholes (also referred to as “holons”) which themselves form part of larger wholes arranged not in a hierarchy but in a “holarchy” of nested entities. Even a human being is not an entirely separate entity since its functioning is dependent on the cooperation of other beings such as mitochondria which are for all practical purposes genetically unrelated to humans. The term “being” has been used in the Declaration to refer to any part of the Earth community that can be considered to be a self-regulating entity (e.g. an animal) or cohesive system (e.g. a river) as well as entities that are constituted by collaborative relationships between many other beings (e.g. a coral reef system). This means that all rights are interrelated and overlapping and that it would be possible to simultaneously seek to enforce rights on behalf of say bacteria, animals, and an ecosystem even though the bacteria in question may simultaneously form part of the two other beings cited. It is intended that legal persons such as corporations and states should not be recognised as beings or legal subjects for the purposes of the Declaration. This is motivated partially by the fact that they are created by legal fictions and have no biophysical reality but also by the experience with human rights, particularly in the United States where many rights that were driven into the Constitution in order to protect natural people have been used to defend corporate interests to the detriment of people. (5) Nothing in this Declaration may be interpreted as implying for any State, group or

person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms in it.


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This paragraph mirrors article 30 of the UDHR. (6) Nothing in this Declaration may be interpreted as restricting the recognition of

other fundamental rights, freedoms or duties of all or specified members of the Earth community.

This paragraph is intended to ensure that the Declaration is not regarded as a comprehensive expression of all fundamental rights, freedoms and obligations and to explicitly provide for the recognition of others in future.


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ANNEX E

UNIVERSAL DECLARATION OF THE RIGHTS OF MOTHER EARTH

Preamble We, the peoples and nations of Earth:

considering that we are all part of Mother Earth, an indivisible, living community of interrelated and interdependent beings with a common destiny; gratefully acknowledging that Mother Earth is the source of life, nourishment and learning and provides everything we need to live well;

recognizing that the capitalist system and all forms of depredation, exploitation, abuse and contamination have caused great destruction, degradation and disruption of Mother Earth, putting life as we know it today at risk through phenomena such as climate change;

convinced that in an interdependent living community it is not possible to recognize the rights of only human beings without causing an imbalance within Mother Earth; affirming that to guarantee human rights it is necessary to recognize and defend the rights of Mother Earth and all beings in her and that there are existing cultures, practices and laws that do so;

conscious of the urgency of taking decisive, collective action to transform structures and systems that cause climate change and other threats to Mother Earth;

proclaim this Universal Declaration of the Rights of Mother Earth, and call on the General Assembly of the United Nation to adopt it, as a common standard of achievement for all peoples and all nations of the world, and to the end that every individual and institution takes responsibility for promoting through teaching, education, and consciousness raising, respect for the rights recognized in this Declaration and ensure through prompt and progressive measures and mechanisms, national and international, their universal and effective recognition and observance among all peoples and States in the world.

Article 1. Mother Earth (11) Mother Earth is a living being.

(12) Mother Earth is a unique, indivisible, self-regulating community of interrelated beings

that sustains, contains and reproduces all beings.

(13) Each being is defined by its relationships as an integral part of Mother Earth.

(14) The inherent rights of Mother Earth are inalienable in that they arise from the same source as existence.

(15) Mother Earth and all beings are entitled to all the inherent rights recognized in this

Declaration without distinction of any kind, such as may be made between organic and inorganic beings, species, origin, use to human beings, or any other status.


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(16) Just as human beings have human rights, all other beings also have rights which are specific to their species or kind and appropriate for their role and function within the communities within which they exist.

(17) The rights of each being are limited by the rights of other beings and any conflict

between their rights must be resolved in a way that maintains the integrity, balance and health of Mother Earth.

Article 2. Inherent Rights of Mother Earth (2) Mother Earth and all beings of which she is composed have the following inherent rights:

(a) the right to life and to exist;

(b) the right to be respected;

(c) the right to continue their vital cycles and processes free from human disruptions;

(d) the right to maintain its identity and integrity as a distinct, self-regulating and interrelated being;

(e) the right to water as a source of life;

(f) the right to clean air;

(g) the right to integral health;

(h) the right to be free from contamination, pollution and toxic or radioactive waste;

(i) the right to not have its genetic structure modified or disrupted in a manner that

threatens it integrity or vital and healthy functioning;

(j) the right to full and prompt restoration for the violation of the rights recognized in this Declaration caused by human activities;

(3) Each being has the right to a place and to play its role in Mother Earth for her harmonious functioning.

(4) Every being has the right to wellbeing and to live free from torture or cruel treatment by human beings.

Article 3. Obligations of human beings to Mother Earth

(9) Every human being is responsible for respecting and living in harmony with Mother Earth.

(10) Human beings, all States, and all public and private institutions must:

(a) act in accordance with the rights and obligations recognized in this Declaration;

(b) recognize and promote the full implementation and enforcement of the rights and

obligations recognized in this Declaration;


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(c) promote and participate in learning, analysis, interpretation and communication about how to live in harmony with Mother Earth in accordance with this Declaration;

(d) ensure that the pursuit of human wellbeing contributes to the wellbeing of Mother

Earth, now and in the future;

(e) establish and apply effective norms and laws for the defence, protection and conservation of the rights of Mother Earth;

(f) respect, protect, conserve and where necessary, restore the integrity, of the vital ecological cycles, processes and balances of Mother Earth;

(g) guarantee that the damages caused by human violations of the inherent rights recognized in this Declaration are rectified and that those responsible are held accountable for restoring the integrity and health of Mother Earth;

(h) empower human beings and institutions to defend the rights of Mother Earth and of all

beings;

(i) establish precautionary and restrictive measures to prevent human activities from causing species extinction, the destruction of ecosystems or the disruption of ecological cycles;

(j) guarantee peace and eliminate nuclear, chemical and biological weapons;

(k) promote and support practices of respect for Mother Earth and all beings, in accordance with their own cultures, traditions and customs;

(l) promote economic systems that are in harmony with Mother Earth and in accordance

with the rights recognized in this Declaration. Article 4. Definitions (7) The term “being” includes ecosystems, natural communities, species and all other natural

entities which exist as part of Mother Earth. (8) Nothing in this Declaration restricts the recognition of other inherent rights of all beings or

specified beings.


34

ANNEX F

PUBLICATIONS LIST CORMAC CULLINAN

(Articles which acknowledge Honorary Research Associate status of author are

indicated by asterisk next to date)

Books (including chapters in books)

*2010 Earth Jurisprudence: From Colonization to Participation, Cullinan, C, 2010 State of the World: Transforming Cultures From Consumerism to Sustainability, WW Norton & Company, New York, USA, and London, UK, 2010 (pages 143 – 148) (Note on author, p 143)

2009 Greening the Law, Cullinan, C, Greenspirit: Path to a new consciousness, Van Eyk McCain, M (ed.), O-Books, 2009

2009 Wild Law: A New Jurisprudence, Cullinan, C, The Ecozoic: Reflections on Life in an Ecological Age: A Tribute to Thomas Berry, Center for Ecozoic Studies, Chapel Hill, USA, 2009 (Pages 64 – 66)

*2009 The Coast, Glavovic, GC, & Cullinan, C, Fuggle & Rabie’s Environmental Management in South Africa, Strydom, HA, & King, ND (editors) (second edition), Juta Law, Cape Town, 2009 (pages 868 – 920) (Notes on contributors, p vii)

Published Papers, Articles and Studies

2009 The Law and the Environment: What Every Company Should Know, Cullinan, C, The Environmental Handbook, Trialogue, 2009 (pages 14 – 17)

2009 Biowatch: The Costs of Constitutional Litigation, Cormac Cullinan, Without Prejudice, 2009