The Rights of Nature as a Bridge between Land-Ownership Regimes: The Potential of Institutionalized Interplay in Post-Colonial Societies

Abstract

Despite the growing prominence and use of Rights of Nature (RoN), doubts remain as to their tangible effect on environmental protection efforts. By analyzing two initiatives in post-colonial societies, we argue that they do influence the creation of institutionalized bridges between differing land-ownership regimes. Applying the methodology of inter-legality, we examine the Ecuadorian Constitution of 2008 and the Ugandan National Environment Act 2019. We identify five normative spheres that influence land-ownership regimes. We find that the established Ecuadorian RoN have an institutionalized effect on the nation's legal system. Their more recently established Ugandan counterpart shows potential to develop in the same direction.

1. THE RIGHTS OF NATURE AND OWNERSHIP

Have you noticed that the emotions involved are not the same when you're asked to defend nature – you yawn, you're bored – as when you're asked to defend your territory – now you're wide awake, suddenly mobilized?

Bruno Latour ¹

Rights of Nature (RoN) do not represent one single train of thought, but many – they ‘have both multiple histories and multiple meanings’.² Despite, or precisely because of, this heterogeneity, the idea is increasingly used to address Earth's ecological crises³ by challenging overly anthropocentric mindsets. Up to June 2021, at least 409 legal RoN initiatives have emerged across 39 countries.⁴ Regardless of their mounting use, Darpö, in a recent report for the European Parliament, submits that RoN are not a ‘paradigmatic revolution for environmental law’.⁵ He argued that the movement faces the same problems as conventional protection efforts, including insufficient access to justice and financial difficulties. We agree that RoN are not a panacea for nature protection issues. However, as we argue in this article, RoN can be a promising ally in bridging conflicting land-ownership regimes.⁶

The ownership of nature has long been identified as an important factor within environmental protection efforts.⁷ Relatively new is the connection of ownership rights with RoN. Among the authors who do address it is Boyd, who sees the vision of nature as property as one of ‘three damaging ideas’ that stand as the root for the ‘ongoing use and misuse of other animals, species, and nature’.⁸ Burdon looks at private property, reconceptualizing it ‘as a relationship between and among members of the Earth community’.⁹ Bradshaw discusses an extension of property rights holders to include non-human animals.¹⁰ Kauffman and Martin reject a complete abandonment of property, reflecting upon an interplay between RoN, property, and markets instead.¹¹ Similarly, Sanders writes about natural self-ownership.¹² It becomes evident that the relationship between RoN and ownership has all but a common trajectory. Consequently, rather than adopting any particular prescription, we conduct an empirical analysis of the practical implementation. In particular, we look at how RoN affect land-ownership regimes in post-colonial societies.

Post-colonial societies experience frequent conflict with regard to land ownership; the reasons for this vary. A dominant explanation refers to economic growth as a motivator for colonial land grabs.¹³ A less scrutinized explanation looks at the, at times, fundamentally opposing understandings of nature.¹⁴ While colonizing normative spheres have largely reproduced an anthropocentric concept of land ownership, colonized ones have offered non-anthropocentric alternatives.¹⁵ Chthonic legal traditions are exemplary of the latter.¹⁶ National and international efforts¹⁷ are increasingly considering the perspectives of a global chthonic population of 476.6 million.¹⁸ While they represent little more than 6% of humanity, their ‘ownership’ of nature is disproportionately higher.¹⁹ In 2018, Garnett and co-authors estimated that chthonic peoples ‘influence land management across at least 28.1% of the [world's] land area’;²⁰ 20% of that territory overlaps with at least 40% of global protected areas and intact landscapes. Put differently, while accounting for little more than 1/16th of the global population, chthonic peoples manage 2/5ths of the world's protected land.²¹

A major limitation to making efficient use of this disproportionately high share is these people's ambiguous ‘influence on land management’, which can range from full governance to occasional consultancy.²² Conceptual clarity is crucial to combat legal uncertainty, not only for chthonic peoples.²³

With these connections and overlapping interests in mind, we analyze two cases: namely, the 2008 Ecuadorian Constitution and the 2019 Ugandan National Environment Act. Whereas both countries share similar histories regarding their evolution of land-ownership regimes, we compare the differing institutionalization²⁴ effects of their respective RoN initiatives. To explicate the resulting ‘bridge’, we use inter-legality – a method that formally considers all ‘vantage points’ that contribute to the creation of a specific law.²⁵ We consider this perspective to be promising because it explicitly avoids enforcing or reproducing post-colonial legal hegemonies.²⁶ By scrutinizing every relevant normative sphere and evaluating its respective importance in a given context, inter-legality aims to heighten the legitimacy of any legal norm-creation process.

Keeping such an inclusive approach in mind, we examine both case studies, following a similar structure. We start with a general introduction and subsequently identify the relevant normative spheres that have historically influenced land-ownership regimes. These spheres include (i) post-colonial political and legal systems; (ii) chthonic legal traditions; (iii) civil society organizations; (iv) international (soft) law; and (v) local and multinational corporations (Sections 2 and 3). In the second step, we analyze the process that led to the respective RoN initiatives (Section 4). While we find elements of a bridging function, we remain only cautiously optimistic regarding future developments (Section 5).

2. THE CHALLENGE OF INTER-LEGALITY

Legal pluralism is the ‘idea that in any one geographical space defined by the conventional boundaries of a nation-state, there is more than one “law” or legal system’.²⁷ In contrast, legal positivist theories ‘emphasize the practical or conceptual separation of state law from other normative contexts’.²⁸ Legal pluralism appeals for a more dynamic and interactive understanding of a fragmented reality. The approach recognizes the dominance of international and national law but also considers the overlapping influence of customary norms, soft law, and unofficial regulations and guidelines from non-governmental organizations (NGOs) or private actors.²⁹

A variety of theories describe the interactions within legally pluralist societies. One such model has been described by Swenson, who identifies four archetypes – for example, combative, competitive, cooperative, and complementary legal pluralism – each describing a different type of relationship between state and non-state actors.³⁰ While such frameworks certainly have some explanatory value, they fail to challenge the primacy of state law. The existing legal hierarchy remains intact, consequently perpetuating possible injustices.

The primacy of state law is one dominant form of political framing. While it is impossible to circumvent the framing of a given society, it is crucial to recognize, acknowledge, and reflect upon this bias. Klabbers and Palombella attempt to formalize such consideration with the framework of ‘inter-legality’. Instead of defining a theory that regulates jurisdiction a priori, inter-legality analyzes a case study, identifies the overlapping normative spheres, and judges their relevance ‘from within’. Similar to other plurilegal theories, it recognizes how various normative orders are interwoven. Unlike them, it goes beyond the idea of ‘self-contained systems’.³¹ Inter-legality does not try to establish or reproduce hierarchies or dependencies of autonomous normative spheres – for instance, international law trumping national legislation – as this could impede just applications. The authors use the institutional response to HIV/AIDS as an example to illustrate their point. They reckon that interpreting the issue ‘as a matter of intellectual property law is not problematic per se, provided it results in a decent solution. If not, people will suggest it should have been approached as a health issue, or a human rights issue, or perhaps even a security issue’.³²

The authors set three defining elements for inter-legality to operate: first, ‘it must concern a variety of norms from different systems; second, these are all valid within their own legal spheres; and third, they are in principle all applicable to a particular set of facts’.³³ Following this, ‘no layer can stand apart; they are not fossils but, instead, exist in dynamic interplay with each other’.³⁴ Through this, ‘interconnectedness [becomes] itself a legal situation’.³⁵ As a result, any ‘legal solution must … be considered normatively acceptable, for when other frames are available, the chosen frame must be able to convince on the grounds of fairness or justice – lest it be considered a mere exercise of naked power’.³⁶

Klabbers and Palombella repeatedly emphasize how relevant spheres are inductively identified. For them ‘the very point of inter-legality is that the law will possibly indicate the solution to a dispute … by showing the relevance of – and the caring for – all the relevant normativities actually controlling the case’.³⁷ Relevance admittedly is a vague concept. Rather than a weakness, we see this feature as a strength of the method. Inter-legality does not exclude any influence beforehand. On the contrary, it ‘forces’ the consideration of all normative spheres. The closing of ‘legal black holes’ consequently strengthens a ‘culture of justification’.³⁸ Eventually, a ‘lame verdict’³⁹ – as Palombella refers to an unjust decision – becomes increasingly unlikely.

In order to account for the constantly changing inter-legal reality of post-colonial societies, in the following we place great emphasis on the thorough elaboration of the historical context of each case study. While it is impossible to account for every single legislative enactment and norm change throughout the complex histories of the societies in question, we employ representative elements and point to further information in the footnotes.⁴⁰ Eventually, we deem those spheres relevant that have or had a tangible impact, such as identifiable normative power on land-ownership regimes.

To summarize, inter-legality offers a promising perspective for a legally pluralist society by (i) not assuming the primacy or the independence of any particular set of rules, as well as (ii) recognizing and formalizing the complexity of relevant norms applicable to a particular case. Following this approach, inter-legality does not consider the post-colonial legal order an undisputed point of departure. Instead, by focusing on land-ownership regimes and the RoN initiatives in question, we hope to identify a common point of overlapping legalities between the various influences at play.

3. CASE STUDY ANALYSIS

The legal reality of global RoN initiatives is vastly heterogeneous, making adequate case selection crucial for meaningful comparisons. We use Hirschl's ‘most similar cases’ principle, which compares ‘cases that have similar characteristics … on all variables or potential explanations that are not central to the study, but vary in the values on the key independent and dependent variables’.⁴¹ We have identified two RoN initiatives in Ecuador and Uganda which can be compared according to the principle.

Whereas the two countries are located on different continents, they still share significant aspects that allow comparative analyses. Both countries have experienced a violent colonial past (from the Kingdom of Spain and the United Kingdom (UK), respectively) and live in a post-colonial non-western pluri-ethnical present. With Ecuador counting 14 chthonic groups and Uganda championing 65 ethnicities, chthonic and non-chthonic legal traditions are widely used and practised. Politicians in both countries attempt to help industrialization efforts by accessing an abundance of natural resources: Ecuador is considered to be a megadiverse country and Uganda has substantial reserves. Both land-ownership regimes are characterized by a mix dominated by communal tenure and are increasingly influenced by commercial privatization. Competing disputes concerning said land ownership have frequently led to clashes between different interest groups. Emblematic of such a resource curse are the historic troubles of opposing normative spheres, where the interests of chthonic people in both countries were systematically played off against the exploitation of their lands, resulting in both common disenfranchisement and widespread environmental depletion. While the former is being addressed on distinct levels, for the latter both countries have adopted, among others, nationwide RoN initiatives.

The key difference is in the timing of implementation. In contrast to Uganda, we consider Ecuador to be a country with established RoN. ‘Established’ here refers to both institutional success as well as relatively early implementation.⁴² The Constitution of Ecuador entered into force in 2008, while the National Environmental Act of Uganda was adopted in 2019. We thus compare the institutional impact (or lack thereof) of a long-running RoN initiative with a more recent example.

3.1. Established Rights of Nature in Ecuador

The Republic of Ecuador⁴³ is a country on the Pacific west coast of South America, bordering Colombia in the north and Peru in the south and east. Even though Ecuador is the third-smallest nation on the continent, because of its unique geography it counts as one of 17 global megadiverse hotspots.⁴⁴ To preserve the many ecologically sensitive areas, the country has signed various international treaties. Nevertheless, deforestation, desertification, and pollution through extractive and other industries continue to jeopardize meaningful protection efforts.⁴⁵ Consequently, Ecuador serves as a prime example of the ongoing struggle between (ab)using national resources and protecting them.

Since the country declared its independence in 1830, Ecuador has been a civil law presidential republic.⁴⁶ Between 2007 and 2017, President Rafael Correa governed the country and oversaw ‘a reorganization of the state around citizen's revolution’.⁴⁷ He did so, among others, through the draft of the current Constitution.⁴⁸ As this introduced constitutional RoN to the world, our focus lies upon this document. In order to better contextualize this process, in the following we identify all relevant normative spheres relating to land-ownership regimes.

Ecuador is made up of three major geographical areas: the coastal plain (Costa), the inter-Andean central highlands (Sierra), as well as the flat-to-rolling eastern jungle, more commonly known as the Amazon rainforest (Oriente).⁴⁹ Each area has distinct features that go beyond geography. One such feature is the distribution of a population of approximately 17.5 million, most of whom live along the coast and the intermontane basins and valleys. A considerably smaller part calls the Amazon their home. Among them are 10 of the country's 14 chthonic groups, a minority totalling 1.1 million.⁵⁰ They are remnants of a history dating back aeons.⁵¹ Ecuador has ratified the 1989 International Labour Organization (ILO) Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries (ILO 169)⁵² and signed both the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP)⁵³ as well as the 2016 American Declaration on the Rights of Indigenous Peoples.⁵⁴ In addition, the country's Constitution emphasizes ‘plurinationality’.⁵⁵ Overall, however, protection efforts remain insufficient.

A crucial feature of the three geographical areas relates to their distinct land-ownership regimes. This division began with the first European-American encounters in the early 16^th century. Upon their arrival, in order to enhance the agricultural productivity of the Inca Empire, the Spanish conquistadores implemented a system of private ownership called latifundio,⁵⁶ replaced by the similar huasipungo ⁵⁷ during the early 20^th century. These systems gave huge plots of land, haciendas, to catholic parishes and people of European descent, while forcing chthonic peoples to work on them through a contracted debt called concertajes.⁵⁸ Ongoing abuses led to increasing tensions. Even though various agrarian reforms attempted to improve the situation,⁵⁹ injustices persist.

Not all geographical areas were reformed equally. Since the early 21^st century, most parts of the Sierra are privately owned. In the Oriente, large plots of land are in public hands, and the remaining areas fall under a predominantly communal tenure system. The Costa applies a mixture of the three. We will focus on the Oriente as it contains most of the country's biodiversity and natural resources, which historically have led to many conflicts.

Until 2016, the 1936 Ley de Tierras Baldías y Colonización defined all uncultivated terrain as wasteland (tierras baldías).⁶⁰ This law was aimed explicitly at the vast areas of the Amazon. Except for the ancestral territory of chthonic peoples,⁶¹ huge parts of the rainforest became the property of the Instituto Nacional de Desarrollo Agrario (INDA).⁶² INDA divided most of the Amazon into square areas. Each plot was left untouched until either chthonic communities or private parties showed interest. For the latter, INDA was entitled to sell the plot to the highest bidder.⁶³ The 2008 Constitution seeks to counter this increasingly lucrative privatization process. Article 408 defines natural resources as ‘the unalienable property of the State’.⁶⁴ Any products deriving from such resources should be ‘in strict compliance with the environmental principles set forth in the Constitution’. Article 250 goes even further and emphasizes that the Amazon should be treated in compliance with the so-called ‘Sumak Kawsay’. In order to understand this concept and any possible conflict of interest, we need to take a look at two of Ecuador's major alternatives to the dominant land-ownership regimes.

The first concept is the chthonic ‘Pachamama’ (Mother Earth). Since pre-Hispanic times, Andean peoples have worshipped the world embodied in this goddess-like figure, considered to be a conscious living being. In present times, they make ritual offerings to Pachamama, in order for her to provide everything that humans need to survive. The relationship is based on mutual giving, an equilibrium being of the utmost importance.⁶⁵ This harmonious interaction is also described by a second concept, ‘Buen Vivir’ (Living Well). No single definition exists, as the idea differs in various social and historical contexts. It generally counters the dominant western ideology of development, overlapping with many aspects of degrowth, but also mixes chthonic with non-chthonic legal traditions, such as by referring to and being inspired by Pachamama. One of the most famous versions of Buen Vivir is the Ecuadorian Sumak Kawsay. Originating from the country's largest chthonic group, the Quechua, Sumak Kawsay strives for a way of living which does not disturb the presumed balance with nature. Humanity should live in harmony with its surroundings.⁶⁶ Crucially for our investigation, none of these concepts regard nature as capable of being owned, but focus instead on the importance of an overall equilibrium. This rather abstract perspective is the strength and weakness of both concepts, as it can be instrumentalized to protect as well as destroy nature.⁶⁷

The logic underlying Pachamama and Buen Vivir is increasingly being recognized internationally. In the 2005 case of Moiwana Community v. Surinam, the Inter-American Court of Human Rights (IACtHR) stated that ‘in the case of indigenous communities who have occupied their ancestral lands in accordance with customary practices – yet who lack real title to the property – mere possession of the land should suffice to obtain official recognition of their communal ownership’.⁶⁸ Countering such promising decisions is the harsh reality. Haga claims that no reliable system of registration of chthonic ancestral land is in place, which is likely to be the result of complex and time-consuming procedures and widespread corruption.⁶⁹ Together with the aforementioned Ley de Tierras Baldías, many chthonic ownership issues must be arduously proved on a case-by-case basis.⁷⁰ In addition to this, land grabbing, as well as illegal activities, further complicate the situation.⁷¹ These practices powerfully oppose equally distributed ownership practices.

Following this contextualization, we can take a closer look at the elaboration of the RoN initiative in question, in Articles 71 to 73 of the 2008 Constitution.⁷² Ecuadorian traces of legally recognizing nature as the subject of rights date back to the mid-1990s. However, it was not until the mid-2000s that political leaders picked up the idea. Initially, President Correa was a strong advocate for chthonic and environmental causes.⁷³ However, he changed this approach throughout the years of his presidency and particularly during the constitutional drafting process, placing more emphasis on economic development and extractive industries.⁷⁴ The ousting of senior figures during the constitutional drafting stands symbolically for the deep divisions that persisted even within the ruling party.⁷⁵

A similarly heterogeneous field can be observed beyond the political sphere.⁷⁶ The aforementioned concepts of Pachamama and Buen Vivir/Sumak Kawsay were introduced in the document.⁷⁷ They were promoted by, among others, CONAIE,⁷⁸ Ecuador's largest chthonic organization. They issued a proposal to the Assembly,⁷⁹ which does not mention RoN. It was another Ecuadorian NGO, Fundación Pachamama,⁸⁰ which advanced the idea in collaboration with the United States (US)-based Community Environmental Legal Defence Fund (CELDF), a major player in global RoN initiatives.⁸¹ Through the dissemination of strategic press articles, the focus on RoN gathered international recognition even in its early stages. Consequently, the Constitution contained both anthropocentric and non-anthropocentric elements. This made RoN ‘one set among an … array of rights, and therefore nature should be understood as one entity among a range of entities to be considered’.⁸²

Upon its implementation, opinions were divided. The vast majority of European constitutionalists consulting the assembly viewed RoN as an ‘eccentricity’.⁸³ Multinational companies, seeking to exploit the vast resources of the country, oil in particular, also disapproved of business-inhibiting environmental protection. Tănăsescu sees a reproduction of western hegemonies since the local RoN were modelled on the idea of universal human rights.⁸⁴ Nina Pacari, chthonic leader, former Ecuadorian foreign minister and current judge of the country's Constitutional Court, counters this perspective and views RoN as ‘a natural outgrowth of the relationship of humans to Mother Earth’.⁸⁵

The strength of the opposition became clear in the immediate legal aftermath. Instead of following up and strengthening constitutional RoN with secondary laws and institutions, mining and development projects were prioritized.⁸⁶ Nevertheless, as Kauffman and Martin point out, predominantly low-profile court litigation allowed for some sort of backdoor institutionalization.⁸⁷ With regard to legal-ownership regimes, two developments helped the institutional effect of RoN. These are the 2014 Penal Code⁸⁸ and a 2015 ruling by the Ecuadorian Constitutional Court.⁸⁹

Esmeraldas is a province on the north-eastern coast of the country. In 2011, a local court cited constitutional RoN to address ongoing illegal mining activities. It specifically allowed the state to destroy private property to protect RoN. Three years later, this decision was institutionalized in Title IV, Chapter 4 of the country's 2014 revision of its Penal Code, which identifies a variety of crimes against nature. Article 551 allows for the destruction of ‘heavy machines’ (i.e., private property).⁹⁰ In the following year, the country's Constitutional Court strengthened this statement.⁹¹ On 20 May 2015, RoN and Buen Vivir were declared to be ‘transversal’. Citing Articles 83(6) and 395(2) of the Constitution, the judges decided that the actions of both state and individuals need to be in accordance with RoN. This resulted in ‘RoN affect[ing] all other rights, including property rights’.⁹²

Even though the original focus concerned the private property of miners, the subsequent ruling extended it to all other constitutional provisions. This consequently institutionalized an effect on the aforementioned ‘land-ownership’ Articles 250 and 408. While it remains to be seen how far this institutionalization can go, Ecuadorian RoN have already resulted in a bridge between various normative spheres, particularly those of a dominant anthropocentric and non-anthropocentric nature.

3.2. Recent Rights of Nature in Uganda

The Republic of Uganda⁹³ is a landlocked country in East-Central Africa, bordering South Sudan to the north, the Democratic Republic of Congo to the west, Tanzania and Rwanda to the south, and Kenya to the east. Many of these borders lie along mountain ranges, valleys, lakes, or rivers, circling a central plateau tilting from the south to the north. Lake Victoria, the world's second-largest freshwater lake and source of the Victorian Nile, is representative of an abundance of hydric resources, which are increasingly depleted.⁹⁴ As 72% of the workforce is employed in agriculture, the well-being of a total of 44.7 million people depends highly on the country's substantial natural resources.⁹⁵ This dependence is likely to continue in the future as, with a median age of 16.7 years, the country has one of the youngest and fastest-growing populations in the world.⁹⁶

In 2019, Uganda became the first African nation to adopt a legal RoN initiative by amending Section 4 of its National Environmental Act.⁹⁷ It is too early to assess any impact sufficiently, although by, firstly, contextualizing the complex history and, secondly, the process of the initiative, we can draw some tentative conclusions about the normative spheres at play.

Historically, the people living in what is now known as Uganda can be traced back to two main ethnic groups: the Bantu and the Nilotic.⁹⁸ Around 1830, Arab and Swahili traders entered the region; British explorers in search of the spring of the Nile followed 30 years later. Upon the arrival of protestant and catholic missionaries at the end of the 1870s, Uganda was experiencing early signs of colonization. Following the 1888 General Act of the Berlin Conference, the foreign domination became official with the establishment of the Imperial British East Africa Company, subsequently divided into the Uganda Protectorate (1894) and East Africa Protectorate (1895), now Kenya.⁹⁹

The Victorian Nile, flowing from the south-east to the north-west, split the Ugandan Protectorate into two parts. The aforementioned Nilotic peoples lived to the north of the river, whereas the Bantu lived to the south. While the northern groups were organized in clans, the southern groups formed larger states or ‘kingdoms’, as Europeans would call them.¹⁰⁰ Throughout the time of European occupation, Buganda was the most dominant and prominent kingdom, establishing strong yet volatile ties with the colonial rulers. Consequently, the western settlers considered the cooperative south to be more civilized than the resisting north, and invested disproportionately more in its infrastructure and economy.

While remaining in the Commonwealth of Nations, Uganda declared its independence from the UK in 1962. Nevertheless, the cleavage between north and south, as well as within various ethnic groups, remained a major source of resentment, tensions, and quarrels, leading to some successful and many more attempted coups.¹⁰¹ The division continues today, with the current President Yoweri Museveni being from the south and his main opponent throughout the 1980s to the early 2000s, the infamous Lord Resistance Army under Joseph Kony, originating from the north.

During his decades-long rule,¹⁰² Museveni was unable to significantly improve the situation of a country where only one in five people have access to electricity.¹⁰³ Nevertheless, he oversaw the adoption of the most recent Constitution of 1995, the National Environmental Statute of the same year, as well as the Land Act of 1998,¹⁰⁴ which represent the basis for the country's current official land-ownership regimes.

Article 237 of the Constitution, with specifications from the Land Act, determines that the citizens of Uganda can hold land under four tenure systems:

1. (1) Freehold tenure corresponds most closely to the British-imported idea of land ownership, where an individual is a registered owner for life, being able to use or sell the land as he¹⁰⁵ wishes.

2. (2) Mailo tenure applies mainly in the central territory of the Buganda kingdom. Even though the rights are the same as those under the freehold system, owners must respect the interests of both registered occupants and Kibanja (customary owners).

3. (3) Leasehold tenure describes rented ownership for three years or more. Such a temporarily limited form of ownership is the only way in which non-citizens are allowed to own land in the country. The government also employs this type of tenure to secure transnational land deals with companies from China or India. This practice of land grabbing is used for a variety of industries, ranging from oil drilling to monoculture plantations of non-native species. The latter include palm oil trees or eucalyptus and pine as a lucrative carbon offset.¹⁰⁶ Despite this increasing practice, the most common form of landholding in the country remains the fourth system.

4. (4) Customary tenure describes land ownership deriving from the norms and traditions of a traditional community.¹⁰⁷

Since 2015, Uganda has issued so-called Certificates of Customary Ownership (CCOs) as a means of regulation. However, as there is no clear definition of ‘customary view’, the impact of CCOs is somewhat ambiguous, with the state frequently undermining them.¹⁰⁸ The problem is that the same laws that acknowledge customary authorities allow the government to nullify them and exclude all human activity by declaring an area to be protected land.¹⁰⁹

For Uganda, protected land is a double-edged sword, a fact that becomes evident when considering the country's forests. Between 1990 and 2015, the proportion of nationally protected forests, as opposed to those that are privately owned, grew from 30% to 55%.¹¹⁰ While this might indicate an increase in protection efforts, this change is the direct result of different rates of deforestation. Supposedly protected trees (minus 31%) were simply cut at a slower rate than privately owned trees (minus 76%).¹¹¹ Much of the clearing derives from the need for timber and agricultural fields.¹¹² However, a growing population with little to no access to electricity also cuts increasing amounts of firewood.¹¹³ To protect parts of the land from being used by a growing agricultural population, national legislation led to ‘a common experience of state-induced landlessness and historical injustices caused by the creation of conservation areas’.¹¹⁴

On the one hand, in 2020, the overall forest cover had bounced back to 12.5%, from a low of 9% in 2015;¹¹⁵ Uganda has also committed to many international climate change mitigation strategies.¹¹⁶ On the other hand, even though the Constitution mentions chthonic peoples, it does not stipulate their explicit protection.¹¹⁷ Uganda has never ratified ILO Convention 169 and was absent during the voting of the UNDRIP. Despite the country's officially combined legal system,¹¹⁸ British-induced common law frequently overrules local customary law. Such a track record is concerning for a country that counts 65 ethnicities speaking 30 different languages.¹¹⁹

Across many parts of sub-Saharan Africa, the traditional bond between chthonic peoples and nature takes the form of custodianship – for example, a person or a group of persons holding responsibility for a part of nature. For the emerging African RoN movement, custodianship rooted in customary chthonic legal traditions plays a crucial role, as it unites the recognition of chthonic with nature rights. One major step towards this double goal was taken in 2017 when the African Commission on Human and Peoples’ Rights (ACHPR) passed Resolution 372 on the Protection of Sacred Natural Sites and Territories.¹²⁰ The ACHPR emphasized in this resolution the importance of recognizing traditional land ownership.¹²¹

The increasing awareness of alternative conceptions of land ownership led to the African continent's first RoN initiative. It was formed in 2019 when the Ugandan Parliament passed a revision of its 1995 National Environment Statute.¹²² In its introduction, the newly named National Environment Act (NEA) states its goal ‘to repeal, replace and reform the law relating to environmental management in Uganda’.¹²³ Among others, it amended section 4, which now recognizes nature's ‘right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution’. The inclusion has been made possible by ‘three years of sustained advocacy’ by a collection of NGOs and interest groups. They include Ugandan-based Advocates for Natural Resources and Development (ANARDE),¹²⁴ the National Association of Professional Environmentalists (NAPE), and the African Institute for Culture and Ecology (AFRICE). International support came from the Open Society Initiative for Eastern Africa (OSIEA), the African Biodiversity Network (ABN), as well as the UK-based Gaia Foundation.¹²⁵

The RoN in the NEA link back to the human right to a clean and healthy environment, as established in, among others, Article 39 of the 1995 Constitution, Article 24 of the African Charter on Human and Peoples’ Rights,¹²⁶ as well as Berry's interpretation of earth jurisprudence.¹²⁷

As the NEA reflects very recent developments, the impact has yet to solidify.¹²⁸ Most of these seem to show a repetition of Ecuador's early experiences, with resource extraction and economic development frequently trumping environmental protection efforts.¹²⁹ While it is impossible to predict future legal changes, the example of Ecuador shows that the institutionalization of RoN takes several years to consolidate. Important first steps have nevertheless been taken. The next section will explore a more detailed comparison.

4. THE INTER-LEGALITY OF THE RIGHTS OF NATURE

The previous section identified two ‘ecosystem[s] of inter-legality’¹³⁰ from which national RoN initiatives emerged. For each case, we were able to identify five relevant normative spheres, namely (i) a post-colonial political and legal system, (ii) chthonic legal traditions, (iii) civil society organizations, (iv) international (soft) law, and (v) local and multinational corporations. In the following, we compare their respective relevance.

The most significant impact on land ownership comes from the first sphere – the post-colonial political and legal system. It represents the dominant authority with which all other spheres have to compete, regulating, among others, private, public, or common forms of ownership. Each country had its particular way of merging imported law with local traditions. These historical arrangements keep influencing present realpolitik, with land ownership being one of the most prominent examples of ongoing conflicts within post-colonial societies.

The second sphere relates to chthonic legal traditions. Each country's native population has endured centuries of ostracization – 500 and 150 years, respectively.¹³¹ A gradual increase in the recognition of chthonic rights, at both the national and international levels, helps to acknowledge alternative land-ownership regimes.¹³² In particular, the Ecuadorian concepts of Pachamama and Sumak Kawsay/Buen Vivir do not focus on ownership but on a harmonious equilibrium between humanity and nature.¹³³

The third sphere covers civil society organizations. In many countries they have stimulated cooperation among local stakeholders and spearheaded RoN initiatives. Their flexible form and local, regional, and international networking capacities help to bundle and effectively communicate the view of marginalized communities. Thus, these organizations are gaining increasing power in environmental decision-making processes.

The fourth sphere considers international (soft) law. ‘Soft’ is put in brackets as we also identified binding provisions, including ILO Convention 169 and judgments of the Inter-American Court of Human Rights and the ACHPR. As such, both Ecuador and Uganda are legally bound to some degree. Despite the fact that an increase in both binding and non-binding international law documents a shift towards a pluralistic understanding of societies and their relationship with the land, the frequent lack of binding force considerably weakens their enforceability.

The fifth and final sphere regards local and multinational corporations.¹³⁴ While we only briefly addressed economic markets and have refrained from naming any concrete actors because of their vast numbers and varying lobbying power, we do not wish to underestimate the sector's de facto influence on land-ownership regimes. The sphere's preference for environmental protection and opposing/ignoring natural resource ownership has been extensively documented.¹³⁵

Table 1 presents an overview of our findings.¹³⁶ Except for local and multinational organizations, the central fields list the relevant actors that we identified for the respective normative spheres in our two cases. The first, second, and most of the third column are situated predominantly within a national context, while parts of the third and the entire fourth column relate to international influences. Law-wise, we included only the most pertinent examples. Three concepts – namely the South-American Pachamama and Sumak Kawsay/Buen Vivir and Berry's earth jurisprudence – remain within square brackets, as they cover more than one normative sphere. In order to maintain clarity, we assigned all three to their most relevant sphere.¹³⁷

Table 1 The Relevant Normative Spheres Influencing Land-Ownership Regimes Inside Two Post-Colonial Societies

Considering the normative spheres at play, we identify inter-legal ecosystems occurring at three different levels. The first is in respect of the direct interplay of various actors in creating the specific RoN initiative, including foremost civil society organizations, post-colonial authorities, and chthonic groups.¹³⁸ In Table 1, these direct stakeholders are presented in italics. The second ecosystem encompasses the changes in land-ownership regimes at the local and national, as well as the international level. Such a wider normative shift towards historical reconciliation and emancipation reaches beyond strictly RoN-related processes. Table 1 shows these in roman style. The third inter-legal ecosystem is not visualized as it describes the legal interpretation and implementation (for example, the effect) of these more comprehensive provisions regarding land-ownership regimes.

It is the third ecosystem where comparing the two case studies offers substantial insights. As an established RoN country, Ecuador institutionalized a bridge between different property regimes on two occasions. In 2014, the national Penal Code was amended to include the possibility of destroying private property in order to protect RoN.¹³⁹ This provision was widened in 2015 when the Constitutional Court declared RoN to be ‘transversal’, leading RoN to affect, among others, property rights.¹⁴⁰ The decision can be seen as being metaphorically equivalent to a bridge that connects different normative spheres. Until now, Uganda's more recent RoN have not reached this stage. While it is impossible to predict future legal developments, we can nevertheless identify reasons in favour of RoN affecting institutionalized bridges between land-ownership regimes.

Firstly, the overall ‘tide of history’¹⁴¹ still seems to buoy the westernization of global law. We should indeed not forget that the current understanding of the concepts of rights and nature were dominantly shaped by western thought.¹⁴² Nevertheless, we can observe in both countries increased recognition of non-colonial land-ownership regimes, stimulated either by international declarations, national reconsiderations, or both. RoN themselves have momentum as well, with more than half of global cases taking place since 2017.¹⁴³ Secondly, Ecuador's institutionalization was substantially aided by the judiciary. Contrary to common law regimes, judicial activism is less frequent in civil law countries.¹⁴⁴ This puts Uganda in a position that historically favours far-reaching rulings that could institutionalize effects of RoN. The concept is generally inclined to be advanced by court decisions.¹⁴⁵ One example is India, where almost all RoN initiatives – including the highly publicized Ganga and Yamuna River judgments – were advanced by the judiciary.¹⁴⁶ Frank Tumusiime, a lawyer engaged with the Ugandan NGO ANARDE, emphasized that court decisions certainly represent one opportunity. However, local judges consulted shortly after the adoption of the NEA had varied opinions about this possibility.¹⁴⁷ Thus, Tumusiime argues for extensive capacity building coupled with secondary legislation, both elements that would encourage the creation of specific guidelines for all relevant stakeholders.¹⁴⁸

Limiting these possible trajectories is the perseverance of historically dominant normative spheres. The combination of powerful extractive industries (sphere five) and legal institutions that remain vulnerable to lobbying efforts, and have traditionally favoured economic development over environmental protection (sphere one), can and do limit the success of RoN initiatives. After all, inter-legality is about the interdependence of normative spheres. Eroded trust among those spheres consequently hinders advancement. To name one indicator for trust, neither Uganda nor Ecuador rank highly in the Corruption Perception Index (with 27 and 39 out of 100 points, respectively).¹⁴⁹ Ecuador's RoN nevertheless managed to affect land-ownership regimes.

5. EFFECT OF RIGHTS OF NATURE ON LAND-OWNERSHIP REGIMES

We set out, in this article, to identify the effect that RoN have on land-ownership regimes in post-colonial societies. By using the framework of inter-legality, we compared the respective provisions in the 2008 Constitution of Ecuador with those in the 2019 National Environmental Act of Uganda. This entailed an analysis of various normative spheres with a relevant impact on land ownership. We examined the (used or unused) potential of an RoN-inspired institutionalized interplay, or bridge, between them. The RoN movement is developing and is in many ways heterogeneous. It is therefore difficult, and undesirable, to generalize our findings. However, based on our case studies, we are confident that RoN have served as an institutionalized bridge within the more established Ecuadorian context, and have the potential to become such a bridge in the Ugandan context.

Institutionalization works at various levels. Applying a wide interpretation, the soft power that comes with adopting a non-anthropocentric concept like RoN might already influence other normative spheres. As for Ecuador, time and perseverance translated this symbolism into an institutionalization across different spheres. Even though Uganda has not changed any constitutional provisions, national amendments, in combination with largely similar other normative spheres, offer comparable conditions.

We have introduced the image of a bridge as an adequate metaphor for inter-legal RoN. Some parts of the bridge are, and can be, more developed than others, without weakening the entire structure. We imagine the bridge as both a descriptive and cautiously normative structure. The description derives from the institutionalized interplay we identified in Ecuador. The normative component can potentially guide the institutionalization process in Uganda.

Importantly, we define RoN as a complementary tool to bridge land-ownership regimes in post-colonial societies. Rather than an active mediator, RoN act as one among many mediums. The strength of RoN, in contrast to traditional approaches, is their ability to offer a shared vocabulary. As such, they represent a gateway of communication between previously (mostly) irreconcilable normative spheres.¹⁵⁰ This holds especially true for anthropocentric and non-anthropocentric legal traditions as well as the overlapping of non-chthonic and chthonic legal regimes.

With regard to the effect of the bridge on the overall vision of ownership, we conclude that it does not abolish but rather alters the idea. Nature that ‘owns itself’, to recall one of the more extreme RoN conceptualizations, does not represent a departure from but an integration within a traditional (property) rights context.¹⁵¹ It also aligns with the idea of responsibilities.¹⁵² Consequently, a more fluid conception of ownership appears to be a promising arrangement, as it covers everything from private to public to common arrangements, as well as from human to non-human perspectives.¹⁵³

Even though some of the present findings show possible paths for the evolution of legal systems, RoN implementations are still the (rare) exception rather than the rule. Nevertheless, RoN represent a window of opportunity to bridge multiple normative spheres and, consequently, offer a vision of an inter-legal world that is composed of both anthropocentric and non-anthropocentric worldviews.