NOTIONS OF LEGAL PERSONALITY: DEVELOPMENTS AND OPPORTUNITIES
Panel formed with individual proposals.
This article discusses the challenges associated with the conceptualisation of Earth as possessing legal personality. Establishing the Earth's legal personality could help avoid crossing planetary boundaries. These planetary boundaries are nine processes (eg. climate change, biosphere integrity) that make the Earth system stable and resilient. Recently, legal scholarship has begun to investigate how to incorporate the concept of planetary boundaries within international environmental law by adopting a theoretical approach. This article enriches this discussion by pursuing a more litigation-oriented path. It investigates whether granting legal rights to Earth could be a viable option to avoid the risk of crossing the planetary boundaries. Specifically, our article aims to critically assess the possible implementation of this idea by identifying (a) the possible claims in its support, (b) the associated challenges and (c) whether some regulatory solutions could mitigate these challenges.
The concept of legal personality has always been among the most favorite concepts of legal and philosophical studies. The concept has its roots in private law and in order to approach the meaning of the notion in public law, it is therefore convenient to review the function of personality in private law. The most important actor and legal personality which stands in the core of Public Law is state which the concept of its legal personality is the object of this study. The emergence of the concept of legal personality of the state can be reviewed from different points of view. Legal personality of states was always of interest for Islamic philosophers and jurists. This concept undoubtedly has precursors in Shia jurisprudence specially in Iran, since The Safavid dynasty. So, this study is trying to find the roots and to provide a theory of legal personality of state in Shia jurisprudence
Biodiversity, climate change and environmental protection are commonly associated with indigenous peoples‘ customs and holistic cosmovisions. This paper strives to uncover the myth, notably by identifying the procedural dimension underlying the right to nature. Grounded in Latin American jurisprudence, we understand the right to nature from the perspective of indigenous peoples, including its articulations in existing State law. It is examined to what extent such right undergoes processes of positivisation. Related questions on the significance of legal pluralism and autonomy similarly find mentioning in that regard. More precisely, the procedural dimension is explored by means of collective and intergenerational rights which demonstrate enabling potential in translating the right to nature into dominant legal orders. Finally, we approach the right to nature theoretically, appreciating the possibilities for new procedures and modus operandis for the right to find realisation.
The idea of rights of nature promotes an understanding of human and non-human agents as elements of a whole, of an Earth community governed by principles of relationality, interdependence, complementarity and reciprocity. Hence, they promote a holistic and systemic understanding of life on the plane which entails a communitarian rationale of environmental governance that problematizes the utilitarian logic that cut across sustainable development discourses and practices. Based on the recent “Nevados“ natural park case in Colombia, in which the Supreme Court recognised the natural park as a subject of rights, this paper analyses how judges have understood the concept of the rights of nature in the country. We argue that although judges have embraced the idea of nature as a subject of rights, they are constructing it in a way amenable to market logics and which privileges conservation without people. This construction is depriving rights of nature of its emancipatory potential.