The Pervasiveness of Earth Jurisprudence: Rights of Nature and International Investment Law

by | Sep 29, 2021 | Alumni, International Law | 0 comments

Earth jurisprudence is a branch of philosophy that challenges some of the foundational assumptions in most modern legal systems. In a general sense, it argues that everything on earth is interconnected, and dependent on each other for survival. Particularly, and more importantly for our purposes, it contends that ‘nature’, broadly construed, holds both moral and legal ‘rights.’ This is in stark contrast to the most common approach taken today, where nature is treated merely as property. Operationalising earth jurisprudence, therefore, involves a granting of legal rights to nature.

Earth jurisprudence is not just an academic exercise – it has been put into practice, to differing extents, in many states, including the US, Canada, India, and New Zealand. Perhaps the most comprehensive adoption of earth jurisprudence has been seen in Ecuador. In its 2008 Constitution, Ecuador granted rights to nature, or ‘Pachamama’ as a whole, and empowered the entirety of civil society to have standing to bring claims in nature’s name. While there are debates as to the effectiveness of rights of nature in Ecuador today¹, the fact remains that it is a solid case study of earth jurisprudence being operationalised. Putting aside legal effects of granting rights to nature on the domestic legal system, this article focuses on substantial impacts of the practice on the international level. It argues that Burlington v Ecuador (Counter Claims)² exemplifies these potential impacts. This is seen in the decision’s discussion of what a State must prove in order to obtain compensation from a foreign investor, and the level of compensation awarded. In this way, earth jurisprudence is pervasive – it can affect even the most procedural of rules.

Rights of Nature and International Investment Law

Earth jurisprudence is often met with derision in legal discourse, dismissed as a utopian approach that is incommensurable with the ‘real world.’ However, this section demonstrates that earth jurisprudence can be reconciled with current systems of law, but will provide more environmentally sound responses to certain questions. The best example of this is seen with regards to international investment law. The international investment regime is one of the ‘hardest’ forms of law on the international stage, due to the wide proliferation of Bilateral Investment Treaties and investment chapters in Free Trade Agreement. This makes it less flexible than other forms of international law. It is submitted that the demonstrated capacity of earth jurisprudence to affect even this branch of law reveals its pervasiveness and thus usefulness in environmental regulation.

In Burlington, the tribunal made clear that Ecuadorian law applied to the environmental counter-claims per the rules of the ICSID Convention and ICSID Arbitration Rules.³ The decision was made in 2017, 9 years after Ecuador’s incorporation of earth jurisprudence into its 2008 Constitution. As such, the applicable law under ICSID rules was affected by Ecuador’s incorporation of earth jurisprudence.

One way in which this incorporation of earth jurisprudence affected the outcome in Burlington was through making it easier for Ecuador to bring a claim for environmental damage. For example, the 2008 Constitution established a strict liability regime for environmental harm.⁴ This meant that there was no requirement of negligence or mal-intent in order for an entity to be held liable, thus making it easier to hold entities legally accountable for environmental harm. In addition, granting rights to nature included establishing a presumption of innocence in favour of the environment, which then led to a reversal of the burden of proving harm.⁵ As such, instead of Ecuador being required to prove that Burlington had caused unreasonable harm to the environment, Burlington had to prove that it had not unduly harmed the natural features. Ecuador still had to prove ‘harm plausibly connected to the defendant’s activities’ ⁶ but this is relatively easy to prove, especially in the context of the extraction of oil resources. This means that because Ecuadorian law incorporating earth jurisprudence applied, it was relatively easy for Ecuador to prove they should be awarded compensation. Proving the same is much more difficult in regimes that do not incorporate earth jurisprudence.

Unfortunately, the full effects of the incorporation of earth jurisprudence on the quantum of compensation in international investment law cannot yet be seen. This is because Ecuador set the permissible limits of environmental harm in the Environmental Regulation for Hydrocarbon Operations in Ecuador (RAOHE) and Unified Text of Secondary Environmental Legislation (TULAS) which they did not amend after the 2008 Constitution, due to the then government’s priority on exploiting natural resources.⁷ So, instead of harm being measured with reference to ‘background values,’ as earth jurisprudence would mandate, it was measured with reference to the ‘permissible limits’ set in these instruments prior to the incorporation of earth jurisprudence. Essentially, this means that more environmental damage was permissible and thus that Burlington was liable to pay less compensation for the harm caused. The tribunal recognised that this had ‘significant consequences’ for the monetary relief awarded.⁸

Full and widespread incorporation of earth jurisprudence could also affect the international investment regime as a whole. Ecuador withdrew from ICSID in 2009, claiming that membership violated constitutional provisions that preclude the State ‘yielding its sovereign jurisdiction.’ ⁹ Part of this objection may have been based on concerns of ‘negative environmental sovereignty’ as ICSID has been accused of favouring foreign investors at the expense of host countries.¹⁰ Incorporating earth jurisprudence fully by enacting secondary law to change their meaning to environmental harm to be based on ‘background values’ rather than ‘permissible values’ would arguably strengthen their ‘environmental sovereignty.’ Incorporating earth jurisprudence, therefore, may reduce hesitance on the part of developing states to be part of international investment regimes.

Conclusion

In conclusion, Ecuador provides an interesting case study of the relationship between earth jurisprudence and international investment law. The rights of nature are pervasive, and can rather unexpectedly affect procedural elements such as standard of proof and the calculation of quantum of compensation. Earth jurisprudence could also, if broadly adopted, impact the willingness of States to interact with the international investment regime as a whole.

Vishal Kumar, LL.M.’21
International Renewable Energy Agency Student Leader
Alumnus of the LL.M. in International Law 2021, Graduate Institute Geneva
vishal.kumar@graduateinstitute.ch | vishal.kumar07@hotmail.com



¹ Synneva Laastad, ‘Nature as a Subject of Rights? National Discourses on Ecuador’s Constitutional Rights of Nature’ (2020) 47 Forum for Development Studies 401

²  Burlington Resources Inc v Republic of Ecuador [2017] ICSID Arbitral Tribunal ICSID Case No. ARB/08/5.

³ ibid 72.

⁴ ibid 225.

⁵ ibid 231.

⁶ ibid 226.

⁷ Craig Kauffman and Pamela Martin, ‘Can Rights of Nature Make Development More Sustainable ? Why Some Ecuadorian Lawsuits Succeed and Others Fail’ (2017) 92 World Development 130, 13.

Burlington Resources Inc v Republic of Ecuador para 268.

⁹ Graciela Rodriguez-Ferrand, ‘Ecuador: Withdrawal from International Arbitration Agency’ Global Legal Monitor – Library of Congress (8 October 2009) <https://www.loc.gov/law/foreign-news/article/ecuador-withdrawal-from-international-arbitration-agency/>.

¹⁰ Antonius R Hippolyte, ‘Negative Environmental Sovereignty in the Third World: A TWAIL Analysis of ICSID’s Disregard for Environmental Justice in the South’ [2012] Social Sciences Research Network.

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