Towards the bottom-up pluralisation of public international law: revisiting the role of inter-judicial dialogues on rights of nature between courts in the Global South

This paper discusses the contribution of domestic courts in jurisdictions formerly submitted to colonial domination to the renewal of jurisprudence and legal theory and the bottom-up decolonisation of public international law. In so doing, its main argument engages with the diffusion of legal norms and legal transplants through judicial dialogues within the broader debates about the tensions between constitutionalism and pluralism within the global realm.
It first argues that the historical tensions and internal pluralism in those countries from the so-called ‘Global South’ has led to innovative legal solutions that resonate with what Santos labelled as ‘legal ecumenism’. Santos’ concept borrows the religious notion of ‘ecumenism’ to describe the aspiration for a mutual acknowledgement and non-dogmatic co-existence between hegemonic and counter-hegemonic worldviews and epistemologies that would allow for a ‘new legal common sense’, a subaltern cosmopolitanism, enabling spaces for non-hegemonic projects of emancipation.
On the basis of this conceptual framework, it then argues that domestic courts in those jurisdictions have played an important catalysing role in two ways: (1) seeking to bring about such ‘legal ecumenism’ in concrete disputes adjudicated before them; and (2) taking inspiration and borrowing 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 subjective rights to specific ecosystems, or to Nature as a whole. 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 eventually settled through the 2017 Te Awa Tupua (Whanganui River Claims Settlement) Act. Crucially, these legislative developments were based on the landmark 1999 Waitangi Tribunal Report (the Whanganui River Report), which also shaped the 2014 Te Urewera Act, granting rights to the Te Urewera Forest, a former national park. In so doing, it critically discusses the extent to which these settlements - especially the Waitangi Tribunal Report - promote a genuine ‘legal ecumenism’ between pre- and post-colonial legalities, that is to say, between Māori (Tikanga) law and the common law inherited from the British Empire (Pākehā law).
Since the 1999 Waitangi Tribunal Report, rights of ecosystems and of Nature have been recognised in a number of countries, both in the Global South and North. Most famously, political shifts in Ecuador and Bolivia led to profound constitutional and legislative amendments in those countries, accommodating the cosmovision of their indigenous communities and granting legal personhood to Pachamama (Mother Earth). More recently, the Spanish Parliament passed a law recognising the rights of the Lagoon of the Mar Menor in September 2022.
Given the paper’s methodological focus on inter-judicial dialogues, however, it will specifically trace how the solutions articulated by the courts and the legislator in New Zealand were borrowed by courts in other jurisdictions. Accordingly, it discusses two further sets of landmark cases in which domestic courts took direct inspiration from jurisprudential developments in New Zealand:


1. The 2014 Colombian Constitutional Court’s decision granting rights to the Atrato River; and
2. A series of judgments rendered by state courts in India granting ‘human status’ to the Ganges River, and status as a ‘living entity’ to the Gangotri and Yamunotri glaciers. All of these judgments were eventually suspended by the Indian Supreme Court.

Against this backdrop, the paper further traces the diffusion of ‘rights of nature’ specifically through inter-judicial dialogues, pinpointing additional borrowings and instances of cross-fertilisation in jurisdictions such as Australia, Bangladesh, Canada, Pakistan, and the Inter-American Court of Human Rights.
It concludes by discussing the question whether the diffusion of innovative legal solutions across jurisdictions has the potential of contributing to a bottom-up, gradual, piecemeal, and incremental decolonisation of international law. Firstly, it will advance some reflections on the centrality of the role of domestic judiciaries in distilling ‘legal ecumenism(s)’ in local, culturally embedded settings. Secondly, it will critically consider the extent to which the emergence of rights of nature jurisprudence in comparative law genuinely embodies a subaltern cosmopolitanism, acknowledging hitherto marginalised legal epistemologies in the deep structure of public international law. It hereby advances some tentative considerations on the re-interpretation of established principles in public international law, such as the principle of prevention, and emerging ones, such as the precautionary approach, in the perspective of subaltern cosmopolitan views on ‘rights of nature’. It contends that such re-interpretations, carefully filtered through the prisms of local legal cultures, may offer new perspectives to address historical grievances, as well as the unprecedented global challenges that lay ahead.