This paper is the result of research carried out in the context of the project PRIN2022 PNRR From BEaches to Coasts: towards an Integrated PROtection of COASTS (BeProCoasts). (Codice del progetto: P2022WCTEW, CUP: F53D23012100001, Finanziato dall’Unione europea—NextGenerationEU).

1. Introduction

The contribution questions the relationship between the environment and state property. It investigates the capacity of the environmental interest, a transversal value of constitutional importance,1 to affect the effectiveness of the protection of natural resources according to the domain model.

The research question stems from the realisation that new forms of protection based on assumptions distinct from those of public property are becoming increasingly widespread in Europe and beyond.

At the European level, in keeping with the Green Deal perspective,2 environmental interest is acquiring a growing capacity to shape and direct the definition of economic development. The achievement of the objectives of climate neutrality, zero land consumption and construction of a circular economic system require the use of techniques and instruments useful for achieving the ecological transition and reducing both the appropriation of natural resources, both their use for entrepreneurial purposes when unsustainable.

This perspective was most recently taken up in Regulation (EU) 2024/1991, the so-called Nature Restoration Law,3 which aims to implement the European Biodiversity Strategy.4 This act imposes ambitious objectives on members States to restore the quality of terrestrial, coastal and freshwater ecosystems and habitats and defines related planning and action obligations. Achieving the goals set out in the Nature Restoration Law will entail the adoption of repair measures that will also affect agricultural and forest ecosystems. These measures will therefore touch the economic activities carried out in the affected areas.

Consequently, members States will have to redefine new balances in the use of their res naturalis. However, in systems where the legal regime of natural resources is defined according to the domain model, the resources are qualified as public goods: the implementation of European law will therefore affect the fullness of the regime of public property, which presupposes the full availability of the goods by the owner-State.

At the international level, the push towards the introduction of new models of natural resource protection appears, if possible, even more evident.

At the heart of the debate is the assertion of a “new ecocentric legal paradigm”5 that is promoting the possibility of a different foundation for the function of protecting natural resources. In the domain model, this foundation has an “objective” character and is based on anthropocentric legal rules. In the new model, it assumes a “subjective” character and find his justification in the existence of nature and of its individual components (“ecosystem matrices”, according to European law).

Representative of this perspective is the theory of Earth jurisprudence, which integrates elements of legal philosophy with principles and tools of environmental law. This theory proposes to reconstruct the relationship between humans and Earth according to a “holistic, integral, or systemic approach because it views human governance systems within the context of natural systems of order”.6 The aim of Earth jurisprudence is to question the anthropocentric view of the relationship between men and “nature” and to reorient it towards an ecocentric perspective. It thus aims to disseminate the use of legal techniques for the protection of natural resources that can foster a balance between the assertion of human rights and the responsibility of the community to maintain the integrity of the Earth-ecosystem.7

The trends mentioned, at European and international level, have two elements in common.

Firstly, they propose forms of natural resource protection that are distinct from the domain model. Then it arises the problem of understanding the relationship between public property and the new forms of natural resource protection. Do the two models operate without mutual contamination? Or does a modification or integration of the typical features of the domain model is necessary?

Secondly, although from different points of view, the cited cases refer to the protection of “nature” as a set of natural resources. From the legal perspective, this shows a connection with the notion of “ecosystem” contained in the cited Regulation (EU) 2024/1991, which refers to a “dynamic complex of plant, animal, fungi and microorganism communities and their non-living environment, interacting as a functional unit, and includes habitat types, habitats of species and species populations”.8

But if this is the case, then the objective sphere of reference of the protection function is different in public property and in the Earth jurisprudence. The powers of protection that can be exercised according to the domain regime are, in fact, referred to individual natural resources (e.g., the order to demolish an unauthorised building in a protected natural area) or to categories of natural resources (e.g., Forest Law). The different basis of protection could therefore correspond to a greater or lesser effectiveness of the administrative power exercised in the two models. This is a second question to which attention must be paid.

In this context, the underlying question of this contribution is whether “nature” can represent a paradigm capable of fostering the establishment of a new model of ecosystem protection. A model additional to the domain model and capable of guaranteeing greater effectiveness of public policies for environmental protection.

Based on these premises, the paper will be developed as follows.

First, some cases of domain intervention in natural resources will be considered. These show how the power to dispose of the resources, if exercised according to the domain model, does not guarantee their protection. At the opposite, instead appears conditioned by the political orientation of the context of reference.

Secondly, the analysis of the cases will be used to demonstrate that the “reinforced” qualification of environmental interest, expanding the territorial scope of protection from individual res naturalis to ecosystems, shows the inadequacy of the domain model. The protection offered by public property is, in fact, based on the close connection between State sovereignty and natural public goods. But the protection of an ecosystem can affect sets of environmental matrices located on more than one State. This takes on transnational and global value.

The analysis will then turn to the examination of some cases emerged in the context of Earth jurisprudence. The choose to focus on this profile and not also on Nature Restoration Law is based on two reasons.

First, at the time of writing, Earth jurisprudence has a sufficient degree of diffusion in different areas of the globe, makes use of established jurisprudential guidelines and is supported by a rich theoretical analysis formulated by legal doctrine. Regulation (EU) 2024/1991 is, however, still in the implementation phase: the expected effects it will produce can only be investigated in the coming years. In addition, the selected cases concern the different instruments that Earth jurisprudence uses to ensure the protection of nature and its components. Show, at the same time, the different protection techniques (judicial and extrajudicial) employed.

Finally, some preliminary conclusions will be developed and possible prospects for further and subsequent in-depth studies on the subject will be outlined.

2. Cases, problems, trends

Towards the end of the 1960s, The Walt Disney Company presented plans to build a large ski complex in the Mineral King Valley, a mountainous area in the Sierra Nevada. The facility would have led to the construction of numerous new infrastructures and an impetuous tourist development of the natural area. The Sierra Club, an environmental association with long-standing roots in the area and very active in its conservation, appealed against the deeds of approval for the project issued by the U.S. Forest Service. In the first instance, the courts held that the Sierra Club had standing to appeal, even though it was not immediately provable that it would suffer direct harm from the construction of the plant and granted the request for an injunction to suspend the construction work. On appeal, however, a contrary view was upheld, which led to the resumption of construction work on the complex. In 1971, the Sierra Club appealed to the U.S. Supreme Court, which upheld the rejection of the application and confirmed by a majority vote that the plaintiffs lacked standing. Despite the unfavourable outcome for the association, Justice Douglas’ dissenting opinion gave the Sierra Club vs. Morton case considerable media resonance across the country. Douglas had, in fact, based his favourable ruling on the idea of being able to recognise the legal personality of the natural area affected by the transformation and thus allow it an autonomous and additional legal standing in court in addition to that of the Sierra Club.9 The debate that arose convinced The Walt Disney Company to abandon the project so as not to suffer reputational damage. Moreover, in 1978, thanks to the Sierra Club’s insistence, the entire Mineral King Valley area was included within the Sequoia National Park and subjected to a special environmental and landscape protection regime.10

In the Sierra Club vs. Morton case, the issue of the legal representation of nature and its elements emerges for the first time in an environmental judgement. This profile will be returned to later.

However, the case is relevant because it highlights the ability of natural resources to take the form of a centre of conflicting interests. In this context, a fundamental role is reserved for administrative law, responsible for enforcing the laws and ensuring the balance of the relationship between natural resources and individual and collective prerogatives.

Over the last thirty years, this relationship has become increasingly important due to the progressive depletion of ecosystem matrices caused by climate change and the increase in world population.11 The affirmation of environmental interest has favoured the introduction of an increasing number of rules and administrative instruments. They are aimed at favouring the sustainable exploitation of natural resources or their preservation through the exclusion of appropriation activities. These policies have not, however, been sufficient to limit the occurrence of dysfunctions, the ineffectiveness of legal rules and, consequently, the failure to achieve a balance between the interests to which the rules tend.

Further examples confirm this thesis.

In the Chilean region of Valparaiso, the overuse of groundwater due to intensive avocado monoculture has drastically reduced the availability of potable water, contributing to drought levels in the area. In 2019, the Chilean government qualified the area as a “zona de catastrophe hidrica”. As of 2020, measures have been taken to quota the resource for human consumption and domestic use and a tanker transport service for drinking water has been started. This is charged to public expenditure. In a report of the same year, the working group of independent experts appointed by the UN Office of the High Commissioner for Human Rights (OHCHR), under the leadership of the Special Rapporteur on the human rights to safe drinking water and sanitation, stated that economic development projects based on the further increase of avocado cultivation would foster violations of the right of access to water and other related rights.12

In 2017, the board of management of Uluru-Kata Tjuta National Park, located in Australia’s Northern Territory, unanimously passed a resolution banning all forms of climbing on the Australian mountain, considered sacred by the Aboriginal people. It also ruled that this activity qualified as a violation of the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC)13 and the Environmental Protection and Biodiversity Conservation Act Regulation 2000 (EPBC Regulation).14 It therefore provided for appropriate sanctions. The decision prompted the resumption of a heated debate in the country between the Aboriginal people, “owners” of the headland and supporters of the need for its spiritual and environmental protection, and the tourism companies, for whom the climb was an important element in offering loisirs services.15

Since 2018, following a change of direction in the Brazilian government’s environmental policies, deforestation has experienced a renewed rate of growth. The conflict between environmental associations, agricultural business groups and government institutions has been reignited. Data collected within the PRODES project (which uses satellite images to track deforestation in the Amazon area) show that 2021 is the year with the largest deforested area in the last decade.16 The increase in deforestation was favoured by amendments to lei no. 12651 de 25 maio 2012: the measure revoked lei no. 4771 de 15 setembro 1965 (the so-called Codigo florestal), introducing an amnesty for penalties related to areas illegally deforested before 2008 and reduce penalties for deforestation on small land parcels.17

The reported cases highlight how a profound change is underway in the relationship between administrative law and natural resources.

For the whole of the last century, this relationship was based on appropriation for the purposes of economic development, also helped by the abundance of resources. The domain model has contributed to this disproportion: the choices of use of natural public goods, left to the discretion of the owner administration, have favoured economic valorisation instead of their protection.

Since the mid-1950s, first at the international level and then at the national level, it has been recognised that increase in world population, excess consumption activity and climate change have caused a rapid decrease in the availability of res naturalis. The lack of available resources encouraged an increase in conflicts between States, territorial administrations, citizens and economic operators.

Reversing the effects of appropriation policies quickly is, moreover, not possible: unlike artificial goods, natural goods tend to be irreproducible or they are partially reproducible but at a very high cost and over a long period of time.18

In this context, the integration of environmental concerns into natural resource protection policies can offer a different perspective of investigation.

First, the application of the principle of sustainable development, accepted in international treaties and in European law, requires States to adopt rules that don’t hinder the generative capacity of natural resources. This perspective emerges, as mentioned, in the Constitutions, in European and national legislation and, as will be seen, is accepted by case law.

As a result of this approach, States adopted legal rules aimed at protecting natural public goods that contribute to constructing a legal regime parallel to the public property regime.

The way in which they intervene is twofold. On the one hand, they aim at a “conservative” protection, providing for useful instruments to preserve the original condition of the natural heritage (the “good state” referred to in Nature Restoration Law). One example is the regime of protected natural areas. On the other hand, they offer “active protection” by reducing or prohibiting uses that lead to irreversible changes in natural resources. Examples are the limits imposed on deforestation or atmospheric pollutions.19

As anticipated, the relationship between the two categories of rules is unclear and should be investigated.

In public property, res naturalis are qualified as public goods. They are protected by different instruments from those applicable to private property. These resources are res extra commercio, may be subject to State police powers and restrictions may be placed on their use because the administration to which they belong disposes of them as owner. Decisions on the permissible use also lie with the owner administration which, at least in most European countries, is the State.

The elements of inalienability and of the limits on access to natural resources are common to public property and the public trust. This is a legal model particularly widespread in countries that have embraced principles and institutions typical of common law where public property is a marginal category compared to private property.20 At the basis of the public trust model is the idea that public administrations must safeguard the natural resources of which they are “custodians” (as trustees) by guaranteeing their care and conservation. So, it is possible to enjoy them not only in the present but also in the future. The powers of protection are, therefore, justified in the benefit that these resources bring to the community. Consequently, if the administration goes along with the exploitation of res naturalis rather than their protection, any citizen is legitimised to take legal action to defend the community’s rights of access and use.21

Despite their common elements, public domain and public trusts are not overlapping models: they have ontologically different foundations and generate different legal effects.22

For our purposes, the most important distinction is the correlation between the protection of natural resources and the protection of future generations. This link is not evident in the domain model where protection powers are activated in response to current events (in the form of administrative police powers) or following the acknowledgement of environmental damage (conservation measures).

This is a perspective present not only, as mentioned, in public trusts. It also emerging in climate litigation.23 Once again, in this case the protection of natural resources is not based on property but on a functional criterion. Specially, the legitimacy of protection is based on the capacity of environmental matrices to guarantee the realisation of fundamental rights. In climate litigation, the effects of judicial protection are broadened. In addition to claims for compensation or restoration of damaged natural elements, performance complaints are made against States to adopt rules to limit the environmental damage.24

The “subjective” perspective accepted in climate cases thanks to the reference to future generations makes it possible to broaden the categories of possible claimants. Traditionally, in fact, in European systems protection for environmental damage is allowed for injured parties and environmental protection associations. In climate litigation representatives of “future generations” can bring claims even if they are not immediately injured by the facts.25 Thus, the guarantee of rights is assessed by the courts not only with respect to the current damage but to its possible future projection.

The public trust and the protection of intergenerational rights accepted in climate cases show the presence of alternative models of protection of ecosystem matrices to public property. They also confirm the perspective indicated by Nature Restoration Law, although from different starting points. In both cases, the paradigm of reference changes: the protection of natural resources is not legitimised by public ownership, but protection depends on the ability of resources to satisfy the rights of present and future citizens.

The indicated perspective is also present, as will be seen, in Earth jurisprudence where the “subjective” inversion takes on an even more marked connotation through the “anthropomorphisation” of natural resources.

3. Natural resources as res of planetary interest

The cases described relate to very different natural resources. But they have one thing in common. They are hypotheses in which the changes induced by climate change and human activities assume a “global” relevance. Their effects, while occurring immediately within the owner-State of res naturalis concerned, generate consequences that impact beyond national borders. Often, we are dealing with natural resources with transboundary physical extension where any change directly affects several legal systems.

The case of large rivers is representative.

River basins that cross at least two States fall into this category. Globally, it is estimated that 261 rivers have this characteristic, affecting about 145 States on each continent, with Europe coming first, followed by Africa.26 The incidental effects on the planet’s freshwater reserves are therefore, for the most part, of transnational significance. The emergence of conflicts is frequent.

One example is the dispute that affected the Rio Grande in the late 19th century. The course of this river runs between the United States and Mexico, passing, for a long stretch, over land dedicated to agriculture. To increase their water supply, a group of farmers living on the banks on the American side altered the natural course of the river basin. This resulted in a considerable decrease in the water quota available for the Mexican territory downstream of the diversion. In 1895, the then Attorney General of the United States, Judson Harmon, adopted an opinion in which he considered the intervention to modify the riverbed to be legitimate due to the principle of absolute sovereignty of states over their territory and the natural resources located therein. Considering this criterion, Attorney Harmon also considered actions capable of restricting (when not inhibiting) the use of the shared natural resource by neighbouring States to be justifiable.27 Within this framework, the United States and Mexico nevertheless agreed in 1906 to adopt a bilateral convention, still in force, aimed at ensuring the equitable distribution of water for the portion of the river.28

Two considerations can be drawn from the Rio Grande case.

The first is the shift from the idea of absolute State sovereignty over natural resources to the orientation that States, by intervening in them, cannot cause environmental damage to territories beyond their borders.

In the European context, this principle translates into the balancing act between the autonomy left to member States to determine the ownership regime of their property and the obligation to respect the principles of environmental law. At the international level, the same principle was first accepted by the 1972 Declaration of the United Nations Conference on the Human Environment. After found legitimacy with the adoption, in 1992, of the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (the so-called UNECE Water Convention)29 and, in 1997, of the Convention on the Law of the Non-navigational Uses of International Watercourses (the so-called UN Watercourses Convention), according to which the use of international watercourses for non-navigational purposes must be carried out in a cooperative, fair and reasonable manner.30

The second consideration is that at a time when climate change has made evident the reduction in the availability of water resources or has abruptly caused their “forced” redistribution, favouring greater drought in some areas and increased flooding in others, the control of water has generated the emergence of “wars” between States with much greater frequency than previously.31

The resolution of conflicts over the management of large rivers has made it essential to strengthen cooperation between the States involved.32 At the same time, has led to an increase in supranational acts aimed at regulating the governance of “shared” rivers and regulating the instruments and models of public intervention in transboundary river basins based on the principles mentioned above. This process is challenging the role of national disciplines for river management as states sharing transnational natural resources tend to create “communities of interest in which the rigidity of national boundaries is diminished (or at least attenuated)” and which take on a “regional” significance.33

The trend discussed does not only affect river basins.

In international law there are, in fact, acts aimed at the protection of entire ecosystems.

For example, the Antarctic Treaty, signed in Washington on 1 December 1959,34 while others are dedicated to the protection of forests, such as the Non Legally Binding Instrument on all Types of Forest (c. d. Forest Instrument), adopted by the UN General Assembly in 2007, the United Nations Strategic Plan for Forests 2017-2030, adopted by the UN General Assembly in 2007,35 the United Nations Strategic Plan for Forests 2017-203036 or, at European level, the Communication COM(2021) 572 final New EU Forest Strategy 2030.37 There is also the Agreement under the United Nations Convention on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (the so-called Law of the Sea), signed on 19 June 2023 by the United Nations General Assembly and to which the European Union acceded on 24 April 2024.38 At a general level, there is the UNESCO World Heritage Site.39

The “planetary” dimension recognised by international law (but also, although to a lesser extent, by European law) to natural resources makes it necessary to pay attention to the contaminations between multilevel regulations as well as to the ways in which, even in the absence of specific binding positive regulations, soft law acts influence national rights. The integration of protection’s rules in the described way entails the establishment of relations not always linear between the subjects involved. The relational systems take on a reticular character and the traditional paradigms of interaction between administrations and between administrations and private individuals decline in favour of flexible and dynamic modules. Institutions with different structures and powers interact with each other and with civil society within a structure of legal systems in which the “bipolar paradigm” leaves room. This is substituted by a dimension in which the positions of subjects are not prejudiced a priori and where relations are not defined in a stable manner.40 In other words, institutional relations are no longer rigidly defined by territorial boundaries but are articulated according to the physical development of the shared res naturalis.

The recognition of the transnational value of natural resources also encourages a second reflection. Is it possible to hypothesise the existence of a set of assets “so important for the future of mankind that their protection and valorisation cannot be left to individual states, while the application of a regime that is as uniform as possible worldwide” is considered indispensable?41

The debate on the “common heritage of mankind”42 brings with it the issue of the legal regime possibly recognisable to the assets in question. If the idea of the existence of a “planetary” public property were to be accepted, however, there would be a risk to conclude that the principle of absolute State sovereignty over natural resources would be dissolved. From the perspective of national law, it would also be necessary to ask whether, like the emergence of the environmental interest, the gradual consolidation of transnational forms of protection of natural resources can undermine the unity of the protection model offered by domain regime.

4. The Earth jurisprudence

Recognition of the global value of natural resources has its highest value in Earth jurisprudence. This model of protection makes use of three legal instruments.

The first is the recognition of rights to “Nature” (also called “Mother Earth” by Earth jurisprudence theorists) to allow for the equality of all “ecological beings”, animate and inanimate. Through this process, all the categories mentioned would be imputed with fundamental human-like prerogatives that, as such, could not be violated without adequate justification.

The second instrument is the recognition of legal personality to individual “ecological beings”. Thus, they become legal subjects with rights and duties and are endowed with the legitimacy to prosecute in their own name to protect themselves against disproportionated human actions.

The third is the imputation of human-like rights to an “ecological being”, thus endowed with inalienable prerogatives. One thinks, for example, of the right to exist and to have a suitable habitat for the development of its existence. This mechanism may or may not be used in conjunction with the recognition of legal personality.43

The doctrine of Earth jurisprudence, which has so far found application mostly in non-European legal systems,44 is spreading rapidly as demonstrated by the cases collected in the database of the Harmony with Nature project promoted by the United Nations.45 The programme is developing in the wake of the resolutions adopted, starting in 2009, by the General Assembly. At this moment, member States expressed the common need to find new forms of balance between economic, social and environmental needs to safeguard present and future generations. On this basis, the action of the United Nations intends to promote the reconstruction of the relationship between man and “nature” in non-anthropocentric terms.46

The cases that are examined below show what effects the different instruments have on the effectiveness of protection and what critical elements emerge.

4.1 The recognition of rights to “nature”

In Ecuador, a heated debate on ‘environmental constitutionalism’ has been ongoing for some time, leading this country to adopt an important constitutional amendment.47

The Ecuadorian Constitution was approved in 2008, in the historical and social context established after the collapse of the dictatorial regime, one of the characteristics of which was the desire to strengthen the welfare state. Articles 71 and 72 of this Charter, included in the Capítulo séptimo rubricated Derechos de la naturaleza, recognise “nature” (“Pacha Mama”, in the Quito language) a veritable catalogue of rights, first and foremost respect for its existence, its life cycles and its evolutionary processes. Furthermore, “nature” is endowed with a general “derecho a la restauración”: this is the right to the restoration of its original conditions when altered by natural or anthropic events. The guarantee of the “derecho a la restauración” is independent of any obligations of compensation provided for by the rules adopted to compensate others damage to natural systems.48 The guarantee of natural rights can be activated from the public authority by any individual or by a community.49 The effectiveness of the right to restauración, on the other hand, requires an intervention by the State. It is responsible for adopting the necessary instruments to prevent the occurrence of events likely to have a serious or permanent environmental impact, among which are the anthropic actions of exploitation of non-renewable natural resources.50

The cited constitutional principles have been applied by the Ecuadorian Corte Constitucional.

One of the most significant cases submitted to this court concerns a protective action brought by two foreign nationals to protect the Vilcabamba River from the improper accumulation of excavated material from the construction of a new road. The deposit had the effect of increasing the river’s flow rate and caused extensive flooding and damage on the applicants’ land. The appeal sought to have the town planning project approved by the Provincial Government of Laja declared illegitimate under Article 71 of the Constitution because it was not accompanied by an environmental impact study. In Loja v. Río Vilcabamba case, the Corte Constitucional rejected the request for condemnation, considering the actions taken by the local authorities involved in the reclamation of the area adequate to the right of the river to be restored.51

A partially similar model to Ecuador was configured in Bolivia. Here “nature” (or “Pachamama” according to the idiom of the aboriginal peoples) was recognised as a rights-holding subject by the Ley de 21 de diciembre de 2010 no. 71, entitled Ley de derechos de la Madre Tierra.

The 2009 Constitution of Bolivia does not expressly refer to “nature” rights. It does, however, dedicate two articles to environmental law in the section regulating social and economic rights. Specially, Article 33 enshrines the right of individuals and communities of present and future generations to live in a healthy, protected and balanced environment. To the recognition of this right, the subsequent Article 34 associates the provision of the legitimacy to act by any individual, either as an individual or as a representative of a community, to promote environmental protection actions. For the purposes of this paper, it is worth noting how part of the Article 33 refers to the possibility that the exercise of rights to the environment is not only due to human beings, but also to other living beings (otros seres vivos) among which are animals.52

A comparison between the cases of Ecuador and Bolivia shows how the inclusion of “nature” rights in the Constitution favours more the effectiveness of the prerogatives correlated to the recognised subjective positions. In the Bolivian system, in fact, the guarantee of protection is in any case subordinated to the prior legal recognition of rights, unlike in the case of Ecuador.

On the other hand, unlike the Ecuadorean Constitution, which does not contain any indications on the content of the notion of “nature”. More, the ways of protecting its rights is based on general rules of principle: Ley no. 71/2010 provides precise indications with respect to both profiles.

Regarding the first aspect, the “Mother Earth” is qualified as “el sistema viviente dinámico conformado por la comunidad indivisible de todos los sistemas de vida y los seres vivos, interrelacionados, interdependientes y complementarios, que comparten un destino común”.53 The reference to the “Madre Tierra” in Ley no. 71/2010 must, however, be read in conjunction with the provision that clarifies its contents in correlation with “sistemas de vida”, which are described as “comunidades complejas y dinámicas de plantas, animales, micro organismos y otros seres y su entorno, donde interactúan comunidades humanas y el resto de la naturaleza como una unidad funcional, bajo la influencia de factores climáticos, fisiográficos y geológicos, así como de las prácticas productivas, y la diversidad cultural”.54

About the second profile, the objective of Ley no. 71/2010 is to recognise the rights of “Mother Earth” and, at the same time, to identify the obligations incumbent on the State and society to ensure their respect.55 The former are indicated in part with general references56 and, on the other hand, with regard to individual natural elements,57 according to a list that is not exhaustive.58

The imputation of claims is thus connected with the qualification of “Madre Tierra” as a subject of law and, more specifically, as a “sujeto colectivo de interés public”.59 The reference to the community is functional in guaranteeing the effectiveness of the protection of the rights recognised by the law: it has the effect of transferring ownership not only to “Madre Tierra” but to all its components (including the human ones). It follows that every member of the community is also the holder of the rights of “Madre Tierra” and that the exercise of individual rights must only take place in a form that is compatible with the former. In the structure of Ley no. 71/2010, individual rights therefore appear as rights that are “conditional” in their externalisation. Consistently, any conflicts must be resolved without affecting the “sistemas de vida”.60

Within the framework described, the Bolivian law lists the obligations incumbent on the State in view of the objective of guaranteeing the rights recognised to “Mother Earth”. These include the development of public policies, systematic preventive actions and promotion of the recognition of these rights, also in international relations.61 At the same time, the duties of physical and juridical persons, public and private, who are obliged not only to respect but also to defend the rights of “Mother Tierra” are indicated, if necessary, initiating jurisdictional actions against acts capable of harming these prerogatives.62

The implementation of Ley no. 71/2010 is conditional on the establishment of the “Defensoría de la Madre Tierra”, a body entrusted with the mission of strengthening the effectiveness of the rights, obligations and duties provided for through the exercise of many powers.63 The draft law under discussion qualifies the Defensoría as a politically, functionally and organisationally independent institution. The same draft foresees for this subject cognitive and investigative powers in relation to acts or omissions related to the violation of the rights of “Mother Earth”, powers of active legitimacy in environmental matters before ordinary and constitutional jurisdictions and powers to present legislative proposals and make recommendations. The Defensoría also has the power to adopt public censures for acts or conduct contrary to the principles laid down.64

4.2 The recognition of rights to individual res naturalis

The second instrument promoted by the doctrine of Earth jurisprudence found application in New Zealand where, for the first time, rights were recognised for a river as an identifiable and delimited “ecological being”.65

Specifically, in 2017, the New Zealand Parliament passed the Te Awa Tupua Whanganui River Claims Settlement Act, by which it granted legal personality to the Whanganui River (Te Awa Tupua, in the Māori language), the third longest in the country, thus relinquishing exclusive ownership over this natural resource.66 The measure follows the Te Urewera Act adopted in 2014 by which the Te Urewera National Park, a national park through which part of the Whanganui River flows.67

The Whanganui River Act was intended to definitively resolve the conflict over the attribution of ownership of this natural resource that had arisen since 1873 between the New Zealand Government and the Māori tribe, who had always settled on the banks of the Whanganui River. According to New Zealand law, in fact, since the river in question was navigable, the ownership of its bed belonged to the Government and the relative administrative management functions to the local authorities. In the interpretation of the Māori, however, the application of the Treaty of Waitangi should have prevailed, which since 1840 has recognised the right of the Aboriginal people to maintain their lands and to enjoy its fruits.

In this context the Whanganui River Act provided for the protection of the entire river and affirmed its express qualification as an indivisible and living whole of physical and metaphysical elements for its entire extension.

Within this framework, the Whanganui River Act uses the recognition of the legal personality of the Whanganui River and the area in which it is located to create a new framework of governance of the natural resource.68 Indeed, this qualification has the effect of legitimising the “personified” river to take legal action to protect its rights. To guarantee the effectiveness of this capacity, the Whanganui River Act has provided for a representation mechanism that allows the res inanimate to avail itself of a body with the function of legal guardian, which will be responsible for acting in its name and on its behalf in the event of a lawsuit. The composition of this legal entity is equal as it is attended by a member appointed by the government and one appointed by the indigenous population who, endowed with identical powers, take on the role of representatives of the rights of the river.69

In the same year in which the Whanganui Act was adopted, the High Court of Uttarakhand in India recognised the Ganges and Yamuna rivers, as well as their tributaries and other watercourses flowing in various ways into the main ones, with legal personality and all the rights, duties and responsibilities of a living being.70 The decision was based on the sacredness of the rivers recalled for the Indian people and the need to preserve them, even by adopting extraordinary measures, from further exposure to factors of environmental degradation that threatened to undermine their very existence.

Like in the first examined case, the effectiveness of the guarantee of the prerogatives related to the possession of legal status was pursued through the imputation to an institutional subject of the status of representatives of the two rivers.

The High Court, moreover, reiterated this orientation in the Glaciers case, upholding the request to recognise the legal personality of all the res naturalis of the State of Uttarakhand, including the Gangotri and Yamunotri glaciers located at the sources of the Ganges and Yamuna rivers. In this decision, the Court, moreover, explicitly stated that “personified” natural resources are accorded rights that should be considered equivalent to human rights, with the effect of determining identical treatment even in the case of compensable damages.71

It must be considered, however, that in the Ganges and Yamuna case, the state of Uttarakhand, which had been assigned the task of representation, appealed against the High Court’s ruling before the Supreme Court of India questioning the legitimacy of the recognition of its role as “guardian” of the rivers. The appeal was based on two main reasons. On the one hand, the transnational extension of the natural resources concerned posed problems of sovereignty since the State of Uttarakhand believed that it could not take decisions concerning the territory of other States, such as neighbouring Bangladesh also affected by the passage of the rivers in question. The formula of exclusive representation should have been replaced, if anything, by that of shared governance. Secondly, the exercise of the powers of representation had as its counterpart the liability of the State concerned in the event of damaging events, of natural or anthropic origin, connected with the life cycle of the rivers. Hence the duty to respond directly in the event of claims, e.g. also in the event of flooding or drowning.72

5. Preliminary conclusions and perspectives for future research

Several conclusions can be drawn from the cases considered.

The application of the instruments promoted by Earth jurisprudence occurs in different ways. The recognition of legal personality and the imputation of rights to “nature” or single res naturalis is based on constitutional provisions, laws or derives from jurisprudential decisions.

The implementation of Earth jurisprudence principles therefore takes place in a “flexible” manner. But this is consistent with the underlying approach of the theory, which includes very different natural resources.

The cases also show how the way in which the theorised principles are transposed conditions their degree of legal effectiveness. Consequently, it conditions the effectiveness of the protective function. Recognition of legal personality or rights in favour of “nature” or individual “ecological beings” occurring in application of a constitutional or normative provision is integrated into the framework of principles and rules in force in the legal system concerned.

On the other hand, when recognition derives from a judgment, its concrete implementation may require further adaptations or may be complex if it fits into a regulatory framework that is not “favourable”. Moreover, while it is true that recognition by judges is likely to produce effects quickly and is independent of the political context of reference, its stability over time is uncertain because subsequent judgments might have a different orientation.73

Secondly, in the Whanganui River case, the recognition of legal personality is integrated with that of the affirmation of indigenous peoples’ rights over natural resources.74 In the Indian case, on the other hand, it is the search for an alternative model of protection of res naturalis that justifies the inversion of their position from “object” over which to exercise rights to “subject” of rights.

This last consideration makes it possible to return to the initial research question: does the protection model proposed by Earth jurisprudence guarantee a more protective way of protection of natural resources than the protection offered by public property and by domain model?

The analysis of the cases does not allow for a fully positive answer. The reasons for this uncertainty are outlined above.

It is also true, however, that the incisiveness of the model proposed seems to be strengthening rapidly according to a process that is not entirely new. The “legal anthropomorphisation” of natural resources is, in fact, asserting itself according to logics analogous to those that inspired the emergence and consolidation of environmental interest: at an early stage it found recognition in international law; it was then accepted in European law; finally, through it, it was transposed into the law of the member States of the European Union.

If the theory of the Earth jurisprudence were to be accepted at the European Union level according to the process described, on the model happened in the Mar Menor case in Spain, it could represent a decisive push towards the revision of the legal paradigms of nature protection typical of the domain regime. In fact, the growing diffusion and variety of cases ascribable to this model of protection shows the outdatedness and limits of the legal rules dedicated to public property,75 especially in those legal systems that have adopted them not so recently.76 It could, as has already happened in several cases, encourage interventions to change the regulatory framework of reference at the State level.77

The Italian case is emblematic.

The domain model is regulated by the Civil Code adopted in 1942 and by numerous sectoral laws implementing the codified general principles.78 Already the presence of this stratification of sources had favoured the loss of value of the Code’s provisions. In the light of the constitutional reform that led to the amendment of Article 9 in the terms described above, the problem is even more evident: how can the reference to the Republic’s duty to protect ecosystems be made compatible with the presence of laws that only protect individual categories of natural resources without considering their systematic interactions?79

It may be necessary to reform the Civil Code and reclassify natural public goods as closely as possible to the new paradigms emerged in European and international law.

However, this would still be a solution based on current logic.

At the opposite, renouncing the legal division of natural resources into rigid categories would be innovative. Instead, legal rules could focus on the dutifulness of the protection function and its application beyond the ownership of assets. The focus would be shifted to the ability of res naturalis to satisfy fundamental rights of present and future generations.

Since these res have very different characteristics from one another, it would be essential to “graduate” the protection regime. As mentioned, protection should have as its scope not individual assets but interconnected ecosystems of natural assets. Protection should therefore also take care to include the interrelationships that exist between naturals resources and to protect their value from a transnational and global perspective.

The transition could have as its starting point a revisitation, in the perspectives outlined, of the theory of the “échelle de la domanialité”. In a nutshell, this theory, as is well known, is based on the observation of the physical variety of public property. From it derives the need for a non-uniform legal regime and a not based solely on the binary distinction between public and private property. Instead of imposing on public domain the regime of public property, it is proposed to classify it according to a six-level gradation with distinctions based on the degree of proximity to the two opposite poles of the scale, public property and private property.80

To conclude, the reflections carried out so far show how the growing pervasiveness of the environmental interest is imposing a reflection on the relationship between nature and law.

This has, since ancient times, aroused the interest of jurists and legal philosophers who have emphasised its complexity.81 At the same time, they have pointed out the ambiguity and pitfalls of “rights of nature” theories.82 Among the most obvious is the consideration that the recognition of legal personality to “nature” or its elements does not solve the problem of the effectiveness of this model of representation. Personified “nature” is not, in fact, able to express its will directly but can only act through natural and legal persons who represent it.83

If it then looks at the contrast between natural law and legal positivism, the relationship between “nature” and man is represented in terms of the conflict between “natural law” and “positive law”:84 The idea of nature as an “object” capable of imposing itself on law, conditioning its “institutions, while remaining outside it, extraneous to it” therefore prevails.85

The natural resource protection theories discussed seem to offer the possibility of a different view.

The definition of “nature” from the point of view of law in the cases considered is in fact based on the conception that it is governed by its own laws. Laws capable of establishing the order of things in the natural world in the same way that the laws of law establish the legal order in the world of men. Thus considered, the two orders are no longer in antithesis and can be placed within the framework of a higher “cosmic law”.86 From this direction, “the view of nature allows one to deal with rules constitutive of the entire living system… that relativise the social categories invented by man, including legal ones: they relativise, not subvert” by integrating the environmental law of states and the relations between states, without denying their founding status and usefulness.87

What emerges, therefore, is not only the immateriality of “nature” but also its physical and objective dimension as a set of res naturalis that, as we have seen, can guarantee the enjoyment of fundamental rights. In the perspective indicated, “nature”, no longer just an element in opposition to law, becomes relevant for the actual definition of the legal order and, as far as it is of interest here, for the construction of effective administrative rules, i.e. those capable of achieving the set objectives.

In this sense, “nature” could also pose itself as a paradigm capable of limiting the expansion of certain categories of rights, such as economic rights aimed at the exploitation of res naturalis, while at the same time favouring the strengthening of other emerging rights, such as those of future generations.