Reimagining the Future of Environmental Law: Rights of Nature and Ecocide

Lily Moser (J.D. Candidate, Class of 2028) is a first-year law student and contributing editor. Her interests include environmental law, international human rights, and community-based justice. She earned a B.A. in Political Science and a B.S. in Society and Environment from the University of California, Berkeley. Before law school, Lily worked for Congresswoman Barbara Lee and for the City and County of San Francisco, serving as a field representative engaging with community leaders, a strategic communications analyst drafting speeches, and a legislative assistant advancing policy initiatives. At Berkeley Law, she is exploring the intersection of international migration and environmental policy as a member of the Climate Migration and Displacement Project.

Introduction

The Rights of Nature and Ecocide

One of the most prominent modern legal theories within environmental law is the evolving Rights of Nature (RoN). RoN laws vary depending on the domestic policies within given states, but generally, it is the legal recognition that ecosystems—including but not limited to rivers, forests, and land masses—should be protected with “personhood” legal status. Historically, the implementation of RoN frameworks has had varied success, ranging from substantive protection of critical ecosystems to symbolic gestures that lack legal enforceability.

Notably, in May 2025, the Inter-American Court of Human Rights (IACHR) issued an advisory opinion clarifying Organization of American States (OAS) member states’ obligations under human rights law in the context of the global climate and ecological crisis. The Court recognized “Nature” as  a subject of rights, affirming that member states have a positive obligation to ensure the protection of ecosystems, thereby bolstering national Rights of Nature frameworks. The court also recommended that states adopt provisions to criminalize conduct causing massive and irreversible ecological harm.

Concurrently with the development of the RoN framework, there has been a concerted international effort to codify “ecocide” as a crime within international criminal tribunals. This term gained prominence in legal academia and international spaces after the 1972 United Nations (UN) Stockholm Conference on the Human Environment, when then-Swedish Prime Minister, Olaf Palme, described the Vietnam War as an “ecocide”.  Throughout the late 20th century, many international leaders seriously considered adding environmental crimes to the Rome Statute of the International Criminal Court, but ultimately decided to not codify them.

Despite this, many groups continued to advocate for ecocide to be added as an amendment to the Rome Statute. For example, in 2010, Polly Higgins submitted a proposal to amend the Rome Statute to include ecocide as a strict liability crime within the International Criminal Court’s jurisdiction.  In 2021, a panel of environmental law experts met to formally define ecocide as, “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts” and recommended amendments to the ICC Rome Statute to recognize ecocide as a fifth “core international crime.”

These two complementary yet distinct international legal movements share a common goal: curbing environmental degradation through civil and criminal frameworks, respectively.

This article will examine how a two-pronged legal approach, combining civil environmental protections through Rights of Nature with criminal provisions addressing ecocide, can enhance enforcement and compliance by member states. It will analyze the proposed two-pronged framework through comparative case studies of Ecuador and Peru.

Case Studies

Ecuador

Ecuador has been at the forefront of Rights of Nature jurisprudence. In 2008, it became the first country in the world to amend its constitution to recognize the rights of nature at the national level. Since this legal designation, the Ecuadorian Constitutional Court has delivered landmark decisions protecting key ecosystems.

For example, in 2021, the court held that the issuance of mining permits in the Los Cedros Protected Forests violated the rights of nature and the precautionary principle.  This holding revoked the mining permits and mandated that the Empresa Nacional Minera EP refrain from undertaking activities that “threaten the rights of nature…within the ecosystem.” The court ordered full restitution as the mining activities violated the constitutional mandate to recognize the rights of nature.

Following this decision, a report by Open Global Rights and New York University Law School found that mining operations had largely stopped in Los Cedros a month after the ruling. In Ecuador, the constitutional protections and subsequent court decisions substantively protected a biodiverse and critical natural territory as an entity with rights.

Beyond Rights of Nature protections, Ecuador has established criminal liability for ecosystem destruction within the Código Orgánico Integral Penal (COIP). COIP acts as Ecuador’s main criminal law, and included provisions that criminalize water and air pollution, extractive mining, crimes against wildlife, and other actions that impede the right to a healthy environment. While not explicitly referencing ecocide, the legislature drafted these statutes in the same spirit, aiming to prevent long-term environmental damage. In the Los Cedros Protected Forests case, the Constitutional Court's decision did not include criminal sanctions. However, these statutes create pathways for prosecutors to pursue portions of the COIP. For example, under Articles 256–258, courts may hold companies responsible for harming rights-bearing ecosystems, subjecting them to both constitutional injunctive measures and criminal sanctions.

Combining civil and criminal liability creates a legal environment in which landmark court decisions surrounding RoN have more legal teeth than simply regulatory consequences.  In implementing both criminal and civil protections, Ecuador is enforcing and creating policy that aligns with the Inter-American Court of Human Rights Advisory Opinion OC-32/25 OF 29 by mandating both personhood rights for ecosystems, and potential criminal sanctions for actions that harm the ecosystem.

Peru

Unlike Ecuador, Peru has not implemented the RoN framework into its constitution but it does have codified rights to a healthy environment and protective rights for Indigenous cultural practices. Recently, Peru has enacted major RoN legislation and issued judicial rulings that recognize individual natural entities as right-holders. For example, in 2024, the Superior Court of Justice of Loreto held that the Marañón River should be provided with personhood rights as a “vital tributary flowing through Peruvian lands, as an entity with inherent rights, including the right to exist, flow, and remain free of contamination” using the legal recommendations outlined by the Inter-American Court of Human Rights. The state-owned corporation, PetroPerú, polluted and harmed the wildlife in the Marañón River area after a crude oil spill on February 2, 2016.  The Kukama indigenous women's organization, Huaynakana Kamatahuara Kana, fought for this ruling.  Ultimately, the Superior Court’s reasoning centered around environmental degradation and the violation of the rights of the Kukama people, as they depend on the river and consider it a sacred entity.

This judicial holding represents a major win for indigenous activists and the RoN framework at large. However, the future of the judicial order remains uncertain. The Superior Court’s holding required PetroPerú to submit a draft update of its Environmental Management Instrument (IGA) to the Ministry of Energy and Mines and to work directly with indigenous groups impacted by mining actions. Despite this order, there is little evidence to suggest that major compliance efforts have been successful. Given that this lawsuit is only civil and regulatory in nature, PetroPerú faces no criminal liability for their impact on the Marañón River.

Peru’s criminal penal code  outlines prohibitions on environmental harm in three forms:, pollution crimes, crimes against natural resources, and rights granted illegitimately by public officials. However, enforcement of this penal code has remained inconsistent because Peruvian courts are too under-resourced to prosecute environmental crime. Beyond this, environmental crime enforcement has not been utilized as an enforcement mechanism within the RoN civil cases, limiting success in holding corporate entities accountable for environmental destruction. Going forward, it will be critical to continue monitoring to assess the effectiveness of the court-mandated obligations for regulatory and civil orders for the Marañón River.

Despite this, Peruvian activists and law-makers have recently proposed adding an ecocide provision into the Penal Code. Despite the approval of the amendment by the Justice and Human Rights Commission of the Congress of the Republic of Peru, it has yet to be discussed or voted on by the wider legislative body. However, this represents a strong step  towards integrating the tenets outlined by the Inter-American Court of Human Rights Advisory Opinion into Peru’s national criminal code. In the same vein, in 2024, the Andean, Amazonian, Afro-Peruvian, Environmental, and Ecological Affairs Committee approved legislative reports advocating for Nature’s legal recognition as a rights-bearing entity. These actions show that Peru is moving towards having formalized criminal sanctions against ecocide, as well as an effort to codify the RoN on a national scale rather than applying it on a entity-by-entity basis.

Conclusion and Looking to the Future

As we look to the future, stronger enforcement against environmental harm and compliance by OAS member-states will likely require a two-pronged approach, combining civil protections through the Rights of Nature with criminal provisions addressing ecocide. Individual states can and should draw on the Inter-American Court of Human Rights’ recommendation to implement civil rights for nature and prohibit “massive and lasting damage” to ecosystems, using draft ecocide amendments as examples for codifying criminal accountability.

Despite efforts in Ecuador and Peru, the enforcement of RoN civil holdings remains uncertain. A critical piece on RoN published in  the Tulane Environmental Law Journal notes that even with constitutional requirements to consult local communities, Ecuador continues to encourage mining and oil projects at the expense of indigenous populations and the country’s own Rights of Nature framework. The international community must push for state commitments that ensure rights for nature are not merely symbolic, but enforceable and centered in indigenous empowerment.

As the IACHR has established, recognizing the Rights of Nature and preventing large-scale ecological harm should be an international imperative. To combat environmental degradation and human rights abuses, we must move beyond symbolic recognition and adopt legal frameworks that hold corporations and individuals accountable. Individual states and international bodies should actively support litigation and legislation to change systems domestically and internationally to codify these rights. By integrating the principles of Advisory Opinion OC-32/25 and incorporating criminal prohibitions on ecocide, governments can protect ecosystems as rights-bearing entities and prevent irreversible environmental destruction.