Towards the Bottom-Up Pluralization of Public International Law: Revisiting the Role of Trans-Jurisdictional Exchanges on Rights of Nature between Courts in the Global South

Description

The paper discusses the role of courts in jurisdictions formerly submitted to colonial domination in the bottom-up decolonisation of international law. Its key point engages with the diffusion of legal norms through judicial dialogues within the tensions between constitutionalism and pluralism.
It first argues that the internal pluralism in countries from the Global South led to innovative legal solutions resembling Santos' "legal ecumenism". This concept describes the aspiration for mutual acknowledgment and non-dogmatic co-existence between hegemonic and counter-hegemonic epistemologies that would allow for a "new legal common sense", a subaltern cosmopolitanism, enabling pluralist emancipation.
Based on this framework, it argues that courts play a catalyising role in two ways: (1) seeking to bring about such "legal ecumenism" in disputes adjudicated before them: and (2) taking inspiration from innovative solutions devised in other jurisdictions. These crucial points are developed by tracing the origins of seminal judicial developments across several jurisdictions that recognise rights to Nature. In particular, the paper assesses how the century-old dispute between the Māori and the government of New Zealand about the property rights over the Whanganui River was settled. It then traces how these solutions were borrowed by courts elsewhere:
1. The Colombian Constitutional Court's decision granting rights to the Atrato River;
2. The Colombian Special Jurisdiction for Peace's decisions recognising the Cauca and Amazon rivers the status of victims of armed conflict; and
3. The recognition of human status to the Ganges River, and status as a "living entity" to the Gangotri and Yamunotri glaciers, by Indian Courts.
Concludingly, it discusses if diffusing legal innovations across jurisdictions contributes to a bottom-up decolonisation of international law. Ultimately, it considers whether rights of Nature jurisprudence in comparative law genuinely embodies a subaltern cosmopolitanism, acknowledging hitherto marginalised legal epistemologies in public international law.

Period	6 Jun 2024
Event title	The Law and Society Association Annual Meeting: Unsettling Territories: Tradition and Revolution in Law and Society
Event type	Conference
Location	Denver, United States, ColoradoShow on map
Degree of Recognition	International