From Human Rights to Rights of Nature

Lawyers, scholars, and policy makers are increasingly coming to recognize the right to a healthy environment as an essential human right – but is that enough to protect the environment itself? Can we protect nature by protecting humans' rights to nature, or do we need a new, eco-centric approach?

To explore these topics, we talked to Tyler Giannini, a human rights lawyer, co-founder of EarthRights International, and the director of the Human Rights Entrepreneurship Clinic at Harvard Law School. 

In the conversation, we dig into the enforcement of human rights, the intersection of court cases and social movements, the idea of guardianship and legal standing for nature, and how the law is evolving in response to planetary-scale crises.

This season is part of the Planetary Embassy, a global initiative across the Swissnex network. Discover more at https://swissnex.org/planetary-embassy/

Tectonic is a production of Swissnex in Boston and New York. Find us online at https://swissnex.org/boston/

Transcript

 Brendan Karch

Welcome back to this season of Tectonic. I'm your host, Brendan Karch. 

As we further explore planetary diplomacy, this episode is all about rights, in particular, human rights vis-a-vis the rights of nature. Since its inception, human rights law has been built on the idea that rights belong to people, all people. 

And over time, these rights have grown in courts to include the human right to a healthy environment, the idea that humans deserve clean air and water and access to natural resources. But as we explore planetary diplomacy, we must ask, what happens when the thing that needs protecting isn't a person at all, but rather a river, a forest, or a species itself? Can we use existing frameworks of human rights to protect nature by protecting humans' rights to nature? Or do we need something else entirely, a set of rights that belong to nature itself, regardless of human interests? 

That tension between an anthropocentric case for protecting the environment and an ecocentric one is at the heart of today's episode. I explore these topics with my guest, Tyler Giannini, a pioneering human rights lawyer who co-founded the organization EarthRights International and now directs the Human Rights Entrepreneurship Clinic at Harvard Law School. He has spent over three decades working at exactly this fertile ground where human rights meet the environment, starting with a landmark case against an oil company operating in Burma in the 1990s. 

In my conversation with Tyler, we dive into the realities of legal enforcement of human rights, in relation to the environment. We discuss the interactions between court cases and social movements. We talk about the idea of legal guardianship for nature, what it would take practically for a forest or an ocean to have standing in court, and who would represent them. And we look at how the law is evolving, how it's moving from individual lawsuits toward collective claims, and from clear cases of local harm, such as a factory polluting waters, towards instead more diffuse global causes like climate change, where responsibility is shared by nearly everyone, and therefore, perhaps no one. 

Here's my conversation with Tyler Giannini. 

Brendan Karch

Welcome to the podcast, Tyler. It's great to have you. Before we dive into your current work with human rights, I wanna talk a little bit about your past and about your journey. So you were one of the co-founders of this organization, EarthRights, which had this landmark case, Doe versus Unocal. Tell us a little bit about that history. Tell us how you got into this subject in the first place.

Tyler Giannini: 

Well first just thanks for having me. It's really a pleasure to be here today and looking forward to the conversation. My origins of getting involved in human rights actually predate my time in law school. I was quite interested in human rights and the environment coming into law school, and the timing of that is actually pretty important because I went to law school in 1992. So for those younger listeners, that's basically one year after the fall of the Soviet Union and the end of the Cold War. And so for a human rights lawyer, that's really important because it opens up the space to move in the West, in particular past civil and political rights. And so EarthRights is really part of that trend. You get a wave of activity in economic, social, and cultural rights, and also what has now evolved into this field of human rights and the environment. And EarthRights was an attempt, one of the early ones, to link human rights and the environment in the legal field. I founded it with two other great co-founders. So it was myself, Katie Redford, a fellow law student. We sat next to each other the first day of torts in our first week of school, and then it blossomed into this relationship. She cared about Thailand and Southeast Asia. I cared about human rights and the environment. She cared about indigenous rights. And so we were a match made in heaven. And then Kisawa is the third founder, and he's from Burma – I still call it Burma. I think officially in the UN documents it will be Myanmar. And he and I graduated both from high school in 1988. But his experience in 1988 was so fundamentally different than mine because that was the year of a massive popular uprising in Burma that led to massacres. So the three of us combined and became an organization, but also really something that was quite a close-knit family. I was actually best man in their wedding. They got married.

Brendan Karch

Wow, very cool. So I know the EarthRights emerged out of this very specific environmental and human rights crisis or violations in Burma, but it really grew to expand to a new, sort of, conception or at least a new modus operandi of how you conduct or can conduct international human rights law. So tell us a little bit about what was going on in Burma, and then what strategy you and your co-founders employed to turn this into a sort of global human rights case.

Tyler Giannini 

Yeah, so EarthRights had a couple of different key things. Of course, we had the topical, thematic focus of human rights and the environment connecting those, but we also had a really specific way in which we like to deploy our strategies. And we called it integrated advocacy, a fancy word for many different approaches to trying to advance change. And specifically, we had three different categories. So the first was human rights litigation or legal tools and so the things that you would think about, like bringing a case or trying to change legislation. And that would be what a law firm would do or a non-profit would do. The second category is advocacy. So think about Human Rights Watch, Amnesty, writing reports, documentation. And the third was to really focus on movement building, and we did that through what are called Earthright Schools, and those still exist. And they're really about community, capacity, technical training, combining all of those three strategies into one organization to try and deploy all the levers of change. Because sometimes you can't use one and sometimes you can't use two, but maybe the third one will make a difference. So for example, litigation, you can't always sue people. We couldn't go to Burma and sue somebody, but we could think about litigation strategies elsewhere. We can help build movements, we can help do documentation, even if we can't go to a court in Burma. 

Brendan Karch

Right. And eventually this led you to the US courts, right? Can you tell us a little, little bit about that journey?

Tyler Giannini

Yeah. So one of the things that EarthRights is best known for is a case called Doe v. Unocal. We brought a case on behalf of Burmese villagers who were affected by what is known as the Yadana Gas Pipeline Project. Now, Yadana Gas Pipeline Project was offshore natural gas that was gonna build a pipeline then deliver that gas into Thailand. And that gas was then gonna be used by the energy industry in Thailand. Unocal was one of the key partners in the project along with Total from France. And then there was also a Burmese company and a Thai company involved. And so the suit in the United States used what was called the Alien Tort Statute, a 1789 law that was signed by George Washington and passed by the very first Congress of the United States. And it allowed non-US citizens, so in this case Burmese citizens, to bring cases for violations of what was called the law of nations at the time, think international law, and to bring tort claims, so civil claims for wrongs that were violations of international law. And so the case basically hinged on this simple premise, that the Yadana Gas Pipeline Project had hired the Burmese military to provide its security. And if you know anything about the Burmese military, if you're just a passive listener of news in the world, you'll know that this is not somebody that you want to be doing your security. That was as much the case in the early '90s as it is today. They were human rights abusers then, they are human rights abusers now. And the plaintiffs themselves had suffered forced labor. They had suffered having their villages relocated. And so you had clear human rights violations that were accepted in international law that allowed the case to proceed. Ten years after we filed the case in nineteen ninety-six the case settled and so it's a landmark that opened up human rights litigation throughout the world against corporations.

Brendan Karch

So it seems like your entire career since the 1990s, you've been dedicated to the issue of human rights, and now you're at Harvard Law School, where you run the Human Rights Entrepreneurs Clinic. What does it mean to be a human rights entrepreneur?

Tyler Giannini

Yeah, that's always the first question we get and we think about it in three different ways. First, there's what you would think of as kind of the entrepreneur, somebody who's doing a startup, for example, and we do support those individuals. We sometimes have student entrepreneurs who come to us. The second category in the field is called intrapreneurship, but that's just a fancy way of saying you're not trying to build an institution, you're trying to do something like a project. So here we do a lot of what we call frontier litigation, and frontier litigation is essentially trying to do what we did in the Unocal case. Can we get the breakthrough case in new areas? And one of those areas is in climate justice, for example, and so that's an example of where we're trying to get more breakthrough cases because they have an outsized effect in a field. And then the third category we call idea entrepreneurship, and in this particular instance, the agent of change is the idea, right? What we try to do in our clinic is teach two things. One is creative lawyering, the second is systems thinking and applying that to the legal field, so looking at the system as a whole. Entrepreneurs do this all the time, see the gaps and try to fill them, and they do it in creative ways. 

Brendan Karch 

Great thanks. Maybe we can explore this link between human rights and the rights of nature a little bit more. You've made your career thinking about human rights. Obviously, establishing the category of human rights in itself is an ongoing challenge, I would say, within international courts and within global structures. What about this category of rights of nature, of establishing the idea that non-human entities, whether it's ecosystems or other species, should have some sort of rights or legal standing? Because of course, it's one thing to say in the abstract it has a right, but you've been very much just, you know, thinking about the nitty-gritty of how you claim rights, how you enforce rights. Do you think that there's a case to be made that we can establish a legal standing for nature and actually get these rights enforced in the way that you've been doing with human rights?

Tyler Giannini 

I think the short answer to that is yes, I do think that there's a way to bring rights of nature into the international legal system, but also national legal systems. I come from a human rights background, even though I've connected it with the environment, so I see this kind of through that lens. And there’s a couple different ways I think that the rights of nature come and they're getting a lot of attention especially in the last five years, I would say. But I'm gonna actually back up to the 1990s because when we started to connect human rights and the environment, we thought of it in three different ways. First is the participatory rights, and participatory rights are really important to being able to actually protect the environment. So that's one set of rights. The second category is what's sometimes called the greening of rights, and here I'm talking about the greening of human rights that already exist. So the right to life, for example, or the right to health, for example. If the environment is actually poisoned to such an extent that it's affecting human health, then you could bring a right to health claim or an infringement of the right to adequate health. And so that would be the greening of an existing right. And then the third category would be the right to a clean and healthy environment and here that kind of breaks into two different categories. We used to say, is that an anthropocentric right or is it an ecocentric right? The anthropocentric means that the environment is being protected for the humans, and as a human rights system, that makes some sense, right? The real interesting question is what about ecocentric rights, the rights of nature? The ecocentric language of the early '90s I think has evolved to rights of nature language today. But that debate's been there for decades and the exciting thing about the recognition of right to clean and healthy environment is it's focusing more attention on this question. So I think you can have those rights either for anthropocentric or ecocentric reasons. Anthropocentric would be things like, we want the forest so that people can enjoy it. We want the forest so that the people can live off of it. We want the forest so it protects the water for the people. That would be anthropocentric. It's still protecting nature, but it's connected to the right of the human. The ecocentric one would be, okay, even if the people aren't enjoying it, the trees would have standing. The trees, the forest itself, would be an ecosystem that deserves protection, whether people live there or not. And both are viable claims. So I think that's the first part of the question. Let me take up your second part of your question is how do you actually do this? Well, I think the key mechanism really is guardianship. And guardianship we are used to in legal settings. So we have guardians for kids, for example. So you have people representing the kids because the kids need someone to step in. And so there's no reason why we couldn't do the same thing for non-human beings, whether those are forest systems, whether those are animals, whether those are biomes like oceans. You can imagine doing it. Now, that's gonna raise a host of questions about how that gets resolved with regards to human interests et cetera, but you can imagine having a legal mechanism to actually represent those interests before some sort of legal body or a legislature or a communal system. There's lots of different forms where you can imagine a guardian stepping in and speaking on behalf of the rights of nature.

Brendan Karch

It sounds like part of the crux of the debate that you could have around this is whether human rights in itself is sufficient, whether by protecting the human rights of, say, indigenous groups in the Amazon, that you are also thereby doing enough to protect the ecosystem that surrounds them, if you have this robust conception of their rights to the natural environment. From your own perspective and history as a human rights lawyer, do you think that this is true or do you think that we need to do more? That protecting the rights of humans ultimately embraces this anthropocentric view and therefore limits our ability to protect the environment?

Tyler Giannini

I am understanding of the desire to have a human rights system is focused on the anthropocentric dimension of  rights. So in its name, right, it makes some sense to have limits there. That in my view, doesn't in any way mean that you can't have rights of nature placed somewhere else. I'm somewhat sympathetic to the people that take the position that rights of nature should not be part of the human rights system. But I think that's not the end of the conversation, in other words, the rights of nature can be in a different place. Now, also, and I think this is where I land, because indigenous rights are part of the human rights system, Indigenous rights, I think, is a logical place where you see some indigenous communities, not all do this, but some indigenous communities have a very specific value system, legal system, that treats rights of nature as part of their human rights because that's how they view the world. And so for those communities you can't disaggregate the two. Now, I think there's one other piece to this, which is if you don't have humans in a specific region, then who's representing that? And there, I wouldn't wanna have indigenous rights be limiting rights of nature in certain situations. So I think for some people they would want to have a guardian who's being able to speak about specific ecosystems that are not reliant on the identification of indigenous community.

Brendan Karch

I think also when you're dealing with environmental rights and laws, it seems like you're dealing sometimes with very specific cases, right? This case, Doe versus Unocal you talked about with Burma, was a case where the human rights abuses seemed quite cut and dry. A very specific population was being affected in very devastating ways by both environmental and other human rights abuses. But what happens when we draw out the picture and it gets more diffuse? What happens if we try to say that a population suffered a hurricane because of increasing global warming, but who's held accountable for that? What happens when we have to zoom out and we don't have these cases which, even if they're cut and dried in a moral sense, are still very hard to prove legally? 

Tyler Giannini

Yeah, that's a great question, an absolutely great question about the, the who has responsibility when you have diffuse responsibility and attribution. And I don't think it's a definitive question about saying we shouldn't have rights of nature. It may mean that the kind of legal theories that you have to deal with in climate change need to be developed, and here we're at an early stage. And one of the examples of that is a European case called KlimaSeniorinnen and it is the first climate human rights case, not the first human rights and environment case in the European system, but the first climate change and human rights case in the European human rights system. And it is developing new ways of approaching the problem of climate change, in part because it's diffuse. And this is, I think, where the law is gonna head. 

Brendan Karch

Yeah, maybe we can address all of those by diving a little bit deeper into this, KlimaSeniorinnen case, which was basically a case of association of older Swiss women who sued in the European Court of Human Rights, arguing that their human rights to a healthy living environment were being violated by climate change. So what is the innovation in this case, or the innovations?

Tyler Giannini

Yeah, there's multiple, but the two I think that get the most attention is that first this is a case that says the jurisprudence of the European Court, which does not specifically in the convention, the European Convention, name environment, but has already recognized the right to have human rights apply to environmental problems should be extended to climate context. So that's the first really important development that takes the European initiative to recognize that climate can infringe on human rights under the European Convention. The second is that it allowed standing, so standing is when you have the ability to bring a case 'cause you have to have experienced a harm, and it extended and allowed standing on behalf of an association. So essentially a group of people could bring a case if the members of the group were experiencing harm. My personal read on this is that what most likely is going on is an innovation, is that the court doesn't wanna be flooded by a hundred thousand individual claims, so it's allowing an association to represent people. And that essentially gives us the ability to hear these kind of collective claims. Normally human rights is individual claims, right? But here we have collective claims on behalf of an association, and that's gonna allow some of that diffusion of harm to really get at the policy problems that need to be dealt with.

Brendan Karch

Yeah, so looking to the future, what kinds of cases might we expect? I'm thinking, for example, of a low-lying island nation or a group within that nation that might argue its case in court against a corporation or against rich Western nations that their emissions have contributed to an existential danger to their lives and livelihoods on their island nations. Could something like that happen? What are the kinds of cases you might foresee out of this new nexus emerging?

Tyler Giannini

So I think we've got a couple of different things here within the climate space. The first wave of climate litigation was focused on the environmental laws. The second wave has now connected it to human rights and the environment, and so climate and human rights. And the third wave, I think, is gonna be defined by the International Court of Justice advisory opinion that came down last year. Most of the cases initially have been focused on emissions. But once you start to look at things like heat, for example, and we're doing a lot of work on heat, and the protection from excessive heat, increased deaths, increased health impacts from heat, That’s about adaptation. We can't wait 30 years for emissions. There needs to be a focus on the protection from right to extreme heat, actually there should be a right to critical cooling or right to cooling when the heat is getting so severe as to have threats of heatstroke or even deaths, and there's increasing evidence that climate-related deaths are attributed to heat. So that's gonna put you into the health arena. And the other piece of the puzzle I think that is quite important here, that we also are seeing a theory of what people call reckless endangerment. So what happens with that as opposed to a tort case, right? Most of the time people think about, well, did this particular emission cause that harm, right? So that's a causation problem. But reckless endangerment theory is based on the idea that you have increased the risk, and that increase of the risk is itself inappropriate. And so with climate change, I think that's a very fruitful area for development of the law. I think we're gonna see an increasing focus on that kind of theory.

Brendan Karch

Fascinating. I wanna back up and maybe ask a little more theoretical question about how all these things relate to each other. I think the traditional notion of courts and how they work is that their notions are binding, but their notions are binding because they're backed up by a jurisdiction and an administration, and ultimately the right of force, whether it's incarceration or tax, seizing of wealth, et cetera. So what is the theory of change that you see this kind of litigation where it's not traditional national courts necessarily that are being invoked, but courts with more diffuse enforcement mechanisms? How do you get to the change that you want to see in the world through this litigation?

Tyler Giannini

So the advisory opinion of the International Court of Justice, for example, on climate change, its importance is the standard-setting. That's why it's so important. In setting the standard, for example, it says there is now a requirement of stringent due diligence, that is giving guidance to how the national laws should be enforced, and so that's the first stop. This standard has now been articulated in 2025. So what we're gonna see first is a wave of cases at the national level that are gonna draw on the standards of the ICJ advisory opinion. National level courts should have that right of force and enforcement that you talked about. So that's a really important part of this puzzle, is that national courts are really important to international law enforcement, that we don't have very many mechanisms at the international level for the right of force and a court to deploy its force in the same way that we have at the national level. But that's okay. There's an interplay, there's a dialogue between the national level and the international level for sure. And I talk about this all the time within my clinic is that you shouldn't just rely on the courts. The problem with climate change is too big. It has to be courts and political processes and the legislature and private actors and community actors all have to be part of the equation.

Brendan Karch

Based on this complete or rounded approach that you're talking about, maybe we can finish off by you painting a optimistic picture of how all these trends might come together in the next 20, 30, 40 years in the sort of longer term horizon. How could environmental law, human rights, social movements for climate, what is an optimistic vision of how they all come together to create a better world and outcomes you wanna see in 20 or 30 years? Paint us a picture of this optimistic future.

Tyler Giannini

Another great question. You leave me with a hard way to close out. Let's think about something optimistic. I actually am an optimist here. I know it's a daunting problem, but this is one way to think about it. We're gonna have a transition in our economy because of climate change. It has to happen. The question is how it's gonna happen. And so I can say with conviction, at least in my lifetime, that I've never seen a moment where the economic system could be transformed into something that is more just for both human rights and for environmental protection. And so I think the opportunity that's gonna be required of the transition regarding climate change, that offers us an opportunity to build in environmental protections into renewables, into our mitigation approaches, into our adaptation approaches that are both sensitive to rights of nature, but also to human rights, and are ones that are more just. That possibility exists because of the scale of this problem. That's one positive dimension. The second piece is that climate change, in my view, is the defining social movement and political movement of this century, and it emerged from underneath environmentalism. But now I think it is an umbrella that includes environmentalism and also human rights. And so that unification that comes with the climate change movement and this transition, both economically and socially, offers incredible opportunities that we can meet. Whether we do that is the question. But it's possible, and you can envision something that is climate friendly as its core and that supports human endeavors and protects our environment.

Brendan Karch

Great, thanks for joining us, Tyler

Tyler Giannini

Thank you. It's been wonderful

Brendan Karch

Tectonic is created by Swissnex in Boston and New York, a Swiss science consulate promoting exchange in education, research, and innovation. Production and editing of the podcast is done by Frederic Atwood and Hayley Bartley. I'm your host, Brendan Karch.