Property Rights, Corporate Personhood And Nature

This paper formed part of the Green Institute Report ‘Rebalancing Rights: Communities, Corporatations and Nature’.

Property rights are a social construction, embodied in law and enforced by the coercive power of the state, represented by police, courts and prisons. This fact is so obvious that it ought to go without saying, but it is routinely denied by many on the right of politics and some on the left.

Nothing illustrates the spurious nature of claims about natural property rights more clearly than the set of rights central to modern business enterprise, centred on the concepts of bankruptcy and limited liability.  These rights are not natural in any sense, although two centuries of experience has made them seem so to many. They were created following fierce political debate over the course of the 18th and 19th centuries.

Over the course of the 20th century, the rights of corporations have been expanded and the status of the corporation as a ‘legal person’ has come to be taken for granted by many.  Among the most notable expansions of corporate rights are the Investor State Dispute Settlement procedures routinely included in international agreements on trade and investment, and the expansion of ‘intellectual property’ rights such as patents and copyrights.

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The Right To Advocate And Protest Is At The Core Of Our Democracy

This paper formed part of the Green Institute Report ‘Rebalancing Rights: Communities, Corporations and Nature’.

As an Australian, I am proud that my country was central to both the writing and the adoption of the Universal Declaration of Human Rights in 1948.  The head of the Australian delegation and later President of the UN General Assembly was Australia’s Dr H. V. Evatt, an unstoppable force who tirelessly negotiated the final document.  We were proud of our human rights contributions during the 19th and early 20th centuries, but for the past 30 years the ‘liberalism’ of neoliberalism has not supported a rights agenda.  Instead, ‘free market’ neoliberalism has decided our public policy and Australia’s democracy is weakened as a result.

Until recently, the tenets of neoliberalism – deregulation, smaller government, competition policy, privatisation, ‘trickle down’ economics and attacks on the advocacy role of civil society – have played out without being named as a coordinated theory. George Monbiot points out that if we were living under communism, it would have been named, but he argues that neoliberalism’s proponents deliberately chose not to promote it by name (Monbiot 2016).  Today, neoliberalism is being called out and named.  Its extremes have unmasked its favouring of big business over the wellbeing of all the community. Yet, power still resides in forces that are not sympathetic to the rights of the community as whole.  The right to advocate and protest is at the core of our democracy, but Coalition (and too often Labor) governments continue to limit this right.

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Rights Of Nature, Earth Democracy And The Future Of Environmental Governance

This paper formed part of the Green Institute Report ‘Rebalancing Rights: Communities, Corporatations and Nature’.

Around the world, people are working hard to protect their local communities and local ecosystems from the destructive impacts of excessive industrial developments.  One strategy that is receiving growing attention is changing the legal status of nature from being human property or, at best, a protected ‘object’, to being recognised as a living entity with its own legal rights – a subject of the law. But can this approach make any difference to the legal protection of nature?

In this essay, I’ll outline criticisms of traditional environmental law that are used to argue that a paradigm shift is needed in western industrial legal systems and trace the origins of the Rights of Nature movement and the developments around the world that have now seen the Rights of Nature shift from being a “fringe” legal issue, to one that is capturing the imagination of courts, lawyers and communities around the world. While the concept is potentially open to many of the same problems faced by ‘traditional’ environmental law, it also represents an exciting and optimistic development in legal theory and practice that is being embraced by a range of communities, and can offer an effective way to advocate for Earth democracy.

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