1. INTRODUCTION
In light of the environmental challenges of climate change and mass loss of biodiversity, awareness of the planet's dire state is increasing, not just among scientists and academics but also among politicians and other policy makers.Footnote 1 Against a backdrop of global ecological change caused by human activity and its far-reaching consequences, the question arises whether existing environmental law frameworks are equipped with the right tools to overcome these challenges, or whether major adjustments to existing political, economic, and legal regimes are needed in order to create a system that works within the ecological limits. Granting legal rights to nature is being debated as a potential approach to pave the way for such adjustments.
Indigenous traditions, for centuries, have acknowledged the intrinsic value of nature as they recognize human beings as part of their interconnected surroundings.Footnote 2 Developments towards translating this approach into modern environmental law have emerged recently, particularly in the context of the ‘rights of nature’. Considerations like those by Stone in his famous essay exploring legal rights for natural objects and, most notably, their ability to establish standing before a court, have laid the theoretical groundwork for this discussion.Footnote 3 This article argues that the concept is a suitable legal adaptation to the era of the Anthropocene and examines how to advance it further. After providing a brief overview of the philosophical background to the rights of nature concept, the focus will be on the practical realization of the concept by comparing recent developments towards this approach and analyzing future possibilities for reform in Europe.
Countries experiencing social conflicts between indigenous and modern worldviews have used rights of nature as a tool to reconcile the two perspectives in law. Is it therefore unlikely that countries uninhabited by indigenous peoples would implement such rights? This article will examine the potential of rights of nature by looking more closely into developments in New Zealand and Ecuador, two countries in which such reforms were supported by vocal indigenous communities and recently put into practice. It will further attempt to answer the question whether the same approach can be applied in a country like Germany. There are certainly reasons beyond the protection of indigenous rights that support the introduction of rights of nature, including the potential to improve environmental protection. As a general rule, natural objects and animals legally are considered property and environmental protection efforts tend to focus on creating duties to protect them, rather than on bestowing rights on the natural entities themselves. Despite those duties, resource extraction and property interests usually prevail. This reflects the anthropocentric ideal of putting human interests at the centre of legal consideration. The notion of rights of nature, in contrast, acknowledges that humans and their environment are interconnected. On this basis, granting legal personality allows for a stronger consideration of nature's well-being and thus aims to strengthen both environmental human rights and environmental protection.Footnote 4
Based on this reasoning, rights of nature could be adopted in any legal system that is serious about ensuring environmental norms, including a European civil law country like Germany. However, any such adoption in Germany would involve surmounting many challenges. Institutions would need to adjust, traditional legal doctrines would need to be reconsidered, and the necessary political will would have to be fostered. Nevertheless, understanding the potential for such legal reform, rather than dismissing the possibility outright, is crucial. Rights of nature may enhance the effectiveness of environmental law frameworks, especially if we are willing to learn from past successes and mistakes in their implementation.
2. NON-TRADITIONAL LEGAL RIGHTS HOLDERS
The notion of granting legal personality to natural objects has been widely discussed. One of the first scholars to explore this concept was Stone.Footnote 5 Originally, his intention was to influence a court decision involving the protection of the Mineral King Valley in California, United States (US). In Sierra Club v. Morton Footnote 6 an environmental protection organization attempted to prevent Walt Disney Enterprises from constructing a ski resort in an ecologically significant area. Stone tried to influence the decision of the US Supreme Court judges on appeal so that it would grant natural objects their own legal rights, particularly their own right to sue for environmental harm. This argument ultimately was rejected by the Supreme Court.Footnote 7 The case illustrates that successful environmental litigation may turn on whether a claimant can show to have locus standi or standing (the ability to make a legal claim on one's own behalf).Footnote 8 Standing typically falls under the umbrella of ‘legal personhood’, a status associated with the capacity to possess legal rights, which in turn allows for consideration of one's interests.Footnote 9 Especially in countries with strict standing doctrines, a person seeking access to justice relating to environmental degradation will have difficulty in fulfilling requirements such as proving personal injury.Footnote 10
To meet this challenge, Stone suggested granting legal rights to ‘forests, oceans, rivers and other so-called “natural objects” in the environment’.Footnote 11 He observed that an extension of rights to entities such as nation-states and corporations has occurred throughout legal history and that ‘each successive extension … to some new entity has been … a bit unthinkable’.Footnote 12 The same was once true for granting rights to women, children and minority groups, thus demonstrating that an idea being ‘unthinkable’ should not allow for its immediate dismissal.Footnote 13
Decades later, Stone's proposals have travelled beyond the debate around Mineral King Valley in the US. At the international level, Emmenegger and Tschentscher identify a shift of moral perception in international environmental law, with a move away from environmental protection focused on anthropocentric self-interest towards recognizing the rights of future generations and acknowledging nature's intrinsic value, as reflected in a number of international documents.Footnote 14 These developments can be used as a supportive basis for national jurisdictions to move in a similar direction. In fact, a number of legal systems have already taken the step towards creating rights of nature.Footnote 15 This approach has become particularly relevant in light of the ongoing global environmental crisis during what is commonly referred to as the ‘Anthropocene era’,Footnote 16 a term originally intended to describe a geological epoch in which human activity greatly influences the Earth's biophysical system.Footnote 17 The term also has socio-political implications in that ecological changes induced by human activity have put our civilization in jeopardy. From this arguably arises the need to adjust existing institutional frameworks to mitigate the effects of these changes.Footnote 18
In a legal context the anthropocentric worldview that characterizes current judicial systems puts human beings at the centre of legal considerations as entitled property owners rather than as part of the planet's ecosystems.Footnote 19 However, Grear notes that the focus on human actors in the anthropocentric paradigm is not inclusive of all human beings. Instead, it is a construct that is highly reliant on political hierarchies. In the face of economic interests in natural resource exploitation it is likely to disregard not only the interests of the natural world, but also of vulnerable groups of people.Footnote 20
The concept of rights of nature, by comparison, is based on a philosophical approach of Earth jurisprudence which recognizes human beings not as separate, but as part of the ecosystem and therefore dependent on its well-being.Footnote 21 It rejects anthropocentrism and instead adopts a holistic approach, attempting to strengthen consideration of ecosystems and their inhabitants as a whole. There are different approaches to implement this philosophy, but the focus of this article will be on the adoption of rights of nature as an attempt to translate it into modern legal systems. It is important to note, however, that the rights-based approach has also been criticized as running counter to indigenous holistic worldviews, in that it creates distinct legal entities which may conflict with each other and create disharmony between humans and nature.Footnote 22 Contrary to this view, this article argues that the approach can ensure a holistic consideration in practice as it extends the number of rights-bearing subjects to be considered. In doing so, it creates a more harmonious balance between various legal entities against each other. In theory, it allows for a serious consideration of interests that are overlooked by neoliberal economic practices as well as for the creation of a separate body of law more suited to effectively protect our ecosystems and its inhabitants.Footnote 23
In light of the growing relevance of environmental matters during the last century, many laws have been established to create human duties regarding the protection of nature. The proposition of going beyond duties and creating legal personality for non-human entities is at odds with the historical legal position that personhood is a construct enjoyed by those entities with qualities associated with the human species.Footnote 24 This is reflected in the granting of legal personhood to entities such as states or corporations in that ‘nonhumans are only persons if they are properly analogous to humans’,Footnote 25 as is the case where such entities function through the actions of human beings. Galvin criticizes this narrow conception of personhood based on attributes of humanity, as there is no scientific, moral, or legal justification for it.Footnote 26 He refers to the extensively studied mental capabilities of animal species such as great apes, dolphins, and honey bees, and proposes granting these non-human animals the status of personhood.Footnote 27 The scientific understanding of the ability of animals to experience emotional interaction and communication raises the question whether the legal concept of personhood needs to expand to accommodate these insights.Footnote 28 The same is true for the scientific understanding of the interdependence of actors and resources in ecosystems, which calls for a fairer consideration of the various interests involved so as to ensure a healthy ecological balance.Footnote 29
Granting legal rights has traditionally functioned as a way for individuals to counter dominant political power in Western jurisdictions and has been described as ‘the highest moral-judicial recognition of an entity’.Footnote 30 Granting legal rights to nature can overcome the anthropocentric conditioning of law and create a holistic perspective, reflecting our knowledge of ecology as well as human rights values regarding the protection of people most vulnerable to environmental degradation.
3. A COMPARISON OF RECENT IMPLEMENTATION OF RIGHTS OF NATURE
Ecuador created the first constitutional norms ever to establish rights of nature in 2008. Similar developments in the form of legislation or judicial decisions followed in other South American countries, including BoliviaFootnote 31 and Colombia.Footnote 32 In the US, several municipal ordinances implementing this approach were passed at the local level.Footnote 33 In the Pacific region, New Zealand enacted rights of nature through legislation; in Asia, this concept has been applied by courts in India.Footnote 34 The following comparison will focus on two of these countries: New Zealand and Ecuador.
Three issues will be considered in comparing the different approaches towards the concept of rights of nature: firstly, the rationale behind the creation of these rights; secondly, their content and how they fit within their respective jurisdiction; and, lastly, their effective enforcement, which will include factors such as political will and government support, as well as the normative power of the rights within the legal hierarchy. Structuring the analysis in relation to these issues will help to identify ways to successfully create rights of nature and the obstacles that might stand in the way of a stable and long-lasting implementation.
3.1. New Zealand: Te Urewera and the Whanganui River
New Zealand has established legal personhood of two distinct ecosystems: the Te Urewera ranges, with the Te Urewera Act 2014,Footnote 35 and the Whanganui River, with the Te Awa Tupua Act 2017.Footnote 36 These laws were introduced as a way to resolve continuous land management disputes between the Māori iwi (tribes) and the Crown.
Rationale behind the legislation in New Zealand
Te Urewera is the ancestral land of a Māori iwi called the Tūhoe. The Te Urewera Act was the outcome of the iwi's struggle to have their responsibilities towards their land recognized.Footnote 37 Compared with the New Zealand National Parks Act – which governed the area earlier and addressed the preservation of ecologically, aesthetically, and scientifically significant areasFootnote 38 – the Te Urewera Act goes further and also recognizes the land as a spiritual entity. Ruru describes the National Parks Act as ‘a mono-cultural statute premising Western values for preserving land’,Footnote 39 while the 2014 Te Urewera Act is a ‘bi-cultural way of articulating the importance of national park lands’.Footnote 40 Granting legal personality to the area therefore allowed for the reconciliation of indigenous and Western values with regard to land management.
Similarly, the 2017 Te Awa Tupua Act is the result of a century-long struggle of the Whanganui iwi, starting in the 1870s, to protect their land from over-exploitation as well as to enforce their right to use the river for fishing and other purposes.Footnote 41 In 1962 the Court of Appeal denied the Māori customary ownership of the riverbed.Footnote 42 The Te Awa Tupua Act is an attempt to resolve this issue by making the river a legal person under the guardianship of the Whanganui iwi.
Both Te Urewera and the Whanganui River are represented by an independently established body functioning as the river's guardian.Footnote 43 This aims to translate the Māori concept of kaitiakitanga, which describes the spiritual exercise of guardianship over ancestral land along the ethics of stewardship.Footnote 44 Evidently, the main purpose of both Acts is to integrate customary values of the Māori iwi that recognize ecosystems as living and spiritual entities into the legal system of New Zealand.Footnote 45
Adaptation to the New Zealand legal system
With the 2014 Act, the Te Urewera region ceased to be a national park of Crown propertyFootnote 46 and became its own legal entity with ‘all the rights, powers, duties, and liabilities of a legal person’.Footnote 47 Section 11(2) clarifies that the named rights are exercised on behalf of Te Urewera by the Te Urewera Board, which has been created specifically for the purpose of the Act based on a guardianship model.Footnote 48 This body is made up of members of the Tūhoe iwi as well as Crown-appointed persons.Footnote 49 The Board exercises duties in the name of the land, can be held liable for damages, receive reparations for damage done to the ecosystem, and can petition the courts.Footnote 50
Three years after the passage of the Te Urewera Act, New Zealand enacted the Te Awa Tupua Act 2017, which acknowledged the Whanganui River as a legal person.Footnote 51 The Act states that it gives effect to ‘the historical claims of Whanganui Iwi as those claims relate to the Whanganui River’.Footnote 52 With the introduction of this Act, the Crown accepts its responsibility under the significant 1840 Treaty of Waitangi to recognize Māori ancestral land as a spiritual entity managed by the iwi. The 2017 Act establishes the office of Te Pou Tupua as guardian, which consists of one representative from the iwi and one representative from the Crown.Footnote 53 The guardian's tasks are, among others, to speak on behalf of the river, to protect its health and well-being, to act as landowner regarding the relevant area, and to regulate activity on the river according to guidelines set out in the Act.Footnote 54
Neither piece of legislation reveals much of the content of the rights and duties granted to nature.Footnote 55 Instead, they emphasize the responsibilities of the Māori more than the rights of the ecosystems. The laws allow for collaborative decision-making processes within the indigenous community regarding the balance of environmental health with the community's economic sustainability.Footnote 56 The recognition of Māori responsibilities towards their ancestral land is therefore transformed through cooperatively managed guardian bodies representing a legal person, rather than through the reallocation of ownership.Footnote 57 In contrast to Western ownership doctrines, the rights-based approach that recognizes the ecosystems as living entities comes the closest to translating indigenous views into the legal system of New Zealand.Footnote 58
Effective enforcement in New Zealand
Both the Te Awa Tupua Act and the Te Urewera Act provide for detailed regulations regarding the budgeting and management of the designated guardians. The establishment of a separate body responsible for the representation of the legal entities and the regulations by which they are bound ensures independence in carrying out their tasks. Financial support from the Crown established alongside the Te Awa Tupua Act further demonstrates the government's willingness to enforce and support the legislation.Footnote 59
When it comes to the positioning of the laws in the legal hierarchy, however, issues with balancing economic and property interests are likely to arise. For example, the Te Awa Tupua Act does not limit private property rights over the river bed.Footnote 60 Any disputes are to be settled on the basis of the Resource Management Act 1991, which governs the use of the Whanganui River's resources.Footnote 61 It will be interesting to see if disputes arise in the future, and whether they will be heard in the New Zealand courts.
In the case of Te Urewera, the area had formerly been declared a national park governed by conservation provisions and is therefore not subject to the 1991 Act.Footnote 62 With the legislative change, the Te Urewera Board now has full authority over management of the area. As a result of this autonomy, the rights of nature provisions regulating Te Urewera are stronger than those in the Te Awa Tupua Act.Footnote 63 Additionally, because the area was formerly a national park, there are no conflicting private property interests that potentially complicate management of the ecosystem.Footnote 64 It also means that no stricter environmental regulations have been introduced. As outlined above, the focus of the Acts lies in the recognition of Māori rights and responsibilities. The extent to which the legislation will ensure better environmental outcomes is therefore unclear.Footnote 65
3.2. Ecuador: Rights of Pachamama in the Constitution
In 2008 Ecuador approved a new constitution recognizing rights of nature. This contains four relevant articles which establish and regulate nature's right to exist, maintain, and regenerate its ‘life cycles, structures, functions and evolutionary processes’ and, furthermore, its right to be restored in the event of injury.Footnote 66 Its objective is to integrate into the legal system indigenous understandings of the relationship between humans and nature.Footnote 67
Rationale behind the constitutional amendment
Ecuador is home to various groups of indigenous people and, because of its 13 million hectares of rainforest,Footnote 68 is an area of ecological significance. The country has also seen major environmental destruction caused by natural resource exploitation, in particular, by the oil industry.Footnote 69 As a result of losses in biodiversity and conflicts with indigenous groups who inhabit lands that were exploited for natural resource extraction, the Ecuadorian government aimed to improve the situation by creating a new constitution.Footnote 70
The new document attempts to strengthen indigenous as well as environmental protection interests.Footnote 71 It does so by establishing rights of nature in accordance with indigenous values. The Constitution uses the word Pachamama, which is derived from the indigenous Quechua language and translates roughly as ‘Mother Earth’.Footnote 72 Pachamama is to be understood in a holistic sense in that it does not distinguish between humans and nature.Footnote 73
Moreover, the preamble to the Constitution states: ‘We hereby decide to build a new form of public coexistence, in diversity and in harmony with nature, to achieve the good way of living, the sumak kawsay’.Footnote 74 Sumak kawsay is a term of great importance among indigenous populations living in and around the Andes in South America.Footnote 75 It translates as ‘living well’ and stands for a harmonious way of living together with nature.Footnote 76 This is also incorporated in a chapter of the Constitution on economic sovereignty in which it states that the ‘economic system … tends towards a dynamic, balanced relationship among society, State and the market, in harmony with nature’.Footnote 77
On this basis, the new Constitution has been described as a decolonial project intended to break away from Ecuador's imperial-based legal system as well as to move towards an ‘alternative model of sustainable development’Footnote 78 based on indigenous beliefs.Footnote 79
Adaptation to Ecuador's legal system
The rights of nature are set out in Articles 71 to 73 of the Constitution. Among other aspects, it states that any person may demand public authorities to apply these rights, which include, inter alia, the right to be restored from any harm, even if caused by the exploitation of natural resources.Footnote 80 It also requires the state to take precautions as well as to introduce restrictions on any action that might cause severe environmental damage, such as the extinction of species or the destruction of an ecosystem.Footnote 81
According to Article 71, a claimant may be any collective, natural or legal person, and may invoke the rights directly through a constitutional lawsuit provided for in Article 88, the Acción de Protección. This action ensures that no further statutory laws are required as the basis for a claim regarding the protection of constitutional norms, and thus allows for ‘joint responsibility of the citizenry’ in applying rights of nature.Footnote 82 In addition, the Defensoría del Pueblo, a government ombudsman tasked with the protection of human rights, may also take up the role of representing nature's interests.Footnote 83 There is no single body established as guardian. Instead, the constitutional norms are intended to be enforced through a broad standing doctrine.
Secondary legislation was enacted recently which further clarifies and advances the rights of nature norms. The Organic Penal Code establishes criminal sanctions for ‘crimes against the environment, Nature or Pachamama’,Footnote 84 and the General Organic Code of Processes further clarifies nature's standing and regulations regarding representation by the public or the Defensoría del Pueblo in court.Footnote 85
Effective enforcement in Ecuador
The advantage of having rights of nature included in a supreme constitutional documentFootnote 86 is that it ‘put[s] the idea of harmony with nature on centre stage’Footnote 87 and challenges the dominant anthropocentric view of treating nature merely as a resource. However, the actual enforcement of these rights is more problematic as they inevitably conflict with economic interests. Kotzé and Villavicencio Calzadilla are critical of the Ecuadorian Constitution in that it establishes no hierarchy of rights; this they see is an obstacle to the effective enforcement of the newly found norms and argue that an ‘ecological Grundnorm’, as suggested by Kim and Bosselmann,Footnote 88 is needed to ensure its implementation.Footnote 89 However, in 2015 the Constitutional Court of Ecuador set a precedent in which it interpreted rights of nature as having transversal effect, which means that they impact on all other legal norms.Footnote 90 Judicial precedents are crucial in activating the rights of nature approach and in demonstrating that they can indeed be effectively enforced against other interests, such as property rights, as occurred in the ruling at hand.Footnote 91
The scope and definition of legal personality in the Ecuadorian Constitution has been criticized as being too vague.Footnote 92 Using the term ‘Pachamama’ manifests respect for indigenous values, but the broad definition offered in the text's preamble arguably creates difficulties for its enforcement.Footnote 93 On the other hand, the broad scope of the term is consistent with the intention of portraying nature as an interconnected ecosystem.Footnote 94 Generally speaking, it is common for constitutional texts to use broad language and this is particularly apparent in constitutions in Latin America.Footnote 95 Nevertheless, some scholars have expressed concern that the rights of nature in the Ecuadorian Constitution are empty postulations, merely aiming to gain the political support of indigenous groups or improving Ecuador's image within the international community.Footnote 96
The constitutional text itself allows for resource exploitation and other anthropocentric uses of the environment, justified by the notions of development and sumak kawsay.Footnote 97 It does not clarify in what way rights of nature can be limited or how to justify such limitations.Footnote 98 This illustrates the issue of resolving tensions between economic development models and incorporating indigenous beliefs with regard to the human-nature relationship.Footnote 99 Natural resource exploitation is still promoted by the Ecuadorian government as part of the country's development strategies. For example, the Mining Law adopted in 2009 allows non-renewable resource extraction in protected areas.Footnote 100 The government argues that profits from mining are needed for a successful economy independent of fossil fuels and, therefore, to ensure the ‘good way of living’ enshrined both in the preamble and in Article 74 of the Constitution.Footnote 101 It becomes evident how the enforcement of constitutional rights of nature can ultimately be influenced by the state's policy priorities which, in the case of Ecuador, delayed the process of creating the institutional framework and secondary laws necessary to effectively implement these rights.Footnote 102 This changed in 2014 when Ecuador adopted a new Penal Code specifying crimes against nature.Footnote 103
Legislative changes are also accompanied by the increasing use of rights of nature in court, which strengthens the framework surrounding them. Kauffman and Martin argue that even norms created just ‘for show’ can have impact because of the way in which they are gradually incorporated into the country's governance processes and legal system.Footnote 104 With regard to litigation, they found that civil society action and government action, as well as the application of rights of nature by the judges themselves, lead to a better understanding of the content of those rights and how they are balanced with other interests, such as interests of an economic nature.Footnote 105
Nevertheless, there have been setbacks in judicial proceedings. While a lack of judicial independence has often been the explanation provided for unsuccessful cases involving rights of nature, a lack of judicial education regarding the interpretation of these rights is another factor.Footnote 106 This is illustrated especially by cases that failed simply as a result of judges not recognizing the claimant's standing. For example, in a lawsuit filed by a non-governmental organization (NGO) using the Acción de Protección before a municipal court in Colta, the judge dismissed the case on the ground of lack of standing. The decision was based on the NGO being unable to demonstrate that personal injury had been caused by damaged monoculture plantations spreading onto indigenous land. The judge in this case failed to correctly apply the constitutional rights of nature in Article 71, which do not require direct human interest to create standing.Footnote 107 Notwithstanding these setbacks, Kauffman and Martin observe that, with an increasing number of rulings on the rights of nature, the judiciary is becoming better educated in the application of these rights. They found that rights of nature were successfully upheld in 10 out of 13 cases in the period 2008 to 2016.Footnote 108 Although six of these cases were initiated by the government as instrumental uses of rights of nature to enforce policies or administrative action, the development plays an important role in further clarifying the use of the newly found norms in court and in sustaining the continuous process of the procedural balancing of rights in the human-nature relationship.Footnote 109 Furthermore, the creation of secondary laws and the continuous national debate on this subject strengthen the rights of nature framework in Ecuador.Footnote 110
3.3. Comparison
When looking at the reasoning behind the implementation of rights of nature in the two countries, the first clear commonality is the attempt to codify indigenous perspectives into modern legal frameworks.Footnote 111 At first sight, therefore, it might not resemble a reform that is directly related to environmental law. The legislation in New Zealand is strongly connected with recognizing Māori values as well as their economic interests exercised according to their indigenous concept of stewardship over their land.Footnote 112 Looking through the lens of the human-nature dichotomy, there is seemingly a lesser focus on environmental protection. Nevertheless, the Te Awa Tupua Act and Te Urewera Act are welcomed as a necessary impetus for future reforms of environmental laws in New Zealand as they emphasize a more balanced approach in considering the interests of humans and nature equally.Footnote 113 In the case of Ecuador, rights of nature are also being applied beyond indigenous interests and as a response to environmental issues in general.
A second aspect to consider is that the lawmaking processes used to realize rights of nature differ. While Ecuador opted for constitutional amendment, New Zealand created a statute to pave the way for reform. In the case of Ecuador, the Constitution ranks highest in the country's legal hierarchy. Environmental constitutionalism is seen as a way of improving environmental protection and numerous countries have started to incorporate environmental responsibilities into their constitutional documents.Footnote 114 Typically, these norms are used in an anthropocentric context.Footnote 115 The Ecuadorian Constitution is therefore potentially a very powerful document for strengthening the concept of rights of nature. Having such norms enshrined in a constitutional text can have a strong effect because they give the impression of being ‘values that cannot easily be compromised’.Footnote 116 At the same time, granting certain rights in constitutions should be viewed critically as it can also be used in an unauthentic manner to improve a country's image within the international community.Footnote 117 However, the further these norms become integrated into the legal system – for example, through secondary laws, as has been the case in Ecuador since 2014 – the harder it will be to circumvent them and use them only as a poster child for the international community.
The third factor to consider is the actual content of the established rights in the two examples presented. A closer look at the way in which legal personhood has been granted shows that the content of the accompanied rights differs in each country. In Ecuador, rights have been granted to ‘Mother Earth’; in New Zealand, the natural objects are narrowed down to specific, more easily manageable areas. New Zealand's legislation stipulates further that the natural objects have all the ‘rights, powers, duties and liabilities of a legal person’Footnote 118 while Ecuador chose a formulation exclusively applicable to nature. The Constitution refers, for example, to nature's right to ‘maintain and regenerate its vital cycles … and its processes in evolution’.Footnote 119 This formulation is particularly helpful in highlighting that the relevant rights differ from those granted to humans. The New Zealand legislation, on the other hand, is more limited in the content of what the ecosystems’ legal personhood entails and does not include, for example, the right to flourish.Footnote 120
Lastly, the enforcement mechanisms of the established rights are different in their scope. New Zealand's legislation narrowly defines the ecosystems that are now legal entities and leaves indigenous people responsible for managing these areas with clearly defined guidelines, rather than focusing on the need for environmental litigation to interpret broad rights of nature stipulations. The situation is different in Ecuador where the Constitution broadly defines Pachamama and allows anyone under the umbrella of an open standing doctrine to enforce their rights in court. Some are concerned that Ecuador's approach risks creating a situation where people who are better resourced will claim nature's rights in order to stop construction and developments in their living areas. This, in turn, might not lead to such developments being stopped altogether, but being moved elsewhere, possibly to poorer neighbourhoods the inhabitants of which do not have the resources to invoke a rights of nature claim.Footnote 121 However, this issue is resolved to some extent through the possibility of filing a complaint to the Defensoría del Pueblo, which has the power to lodge a rights of nature claim in court.Footnote 122
The narrow approach in New Zealand, aimed at recognizing Māori responsibilities for their land, arguably has less of a focus on nature's rights in themselves. This renders its effect on environmental well-being unclear. Nevertheless, the legislative change allows for a redirection of environmental protection towards stewardship and can be seen as a basis for more detailed explorations of legal personality of natural entities in the future.Footnote 123 By comparison, the effect of Ecuador's laws on the environment is more visible as the country's judiciary has developed a number of rights of nature precedents in which environmental interests were upheld.Footnote 124 The lack of political support and contradictory government action will continue to pose a problem, but if the development of Ecuador's rights of nature framework continues along this path its potential to challenge dominant economic interests will increase as well.Footnote 125
3.4. Spreading the Idea Further
The question remains whether other countries will follow suit in applying the rights of nature concept. Following the development in Ecuador, similar laws have been introduced in other countries, especially in South America. This illustrates that the constitutional approach might have an effect beyond Ecuadorian borders. Moreover, New Zealand can serve as an example for Western countries to apply a similar approach.
Despite these revolutionary examples of reform, there is much scepticism towards the idea of integrating the concept of granting legal personality to nature into Western democracies.Footnote 126 Many of the countries that have implemented such laws are inhabited by populations who hold indigenous or nature-centric beliefs. These countries have the advantage of a worldview that favours development towards rights of nature already present in society. The example of New Zealand demonstrates that the concept works well in a Western democratic state that is home to indigenous populations as part of the exercise of promoting their cultural values within the limits of the existing legal system. These laws can thus be used as inspiration for countries like the US and Canada. Indeed, it could be especially relevant in Canada where conflicts between Crown property and indigenous land ownership resemble those in New Zealand.Footnote 127 The European continent, however, has almost no indigenous populations, with the exception of the Sámi people in the North who also have a history of struggling for recognition of their indigenous rights.Footnote 128 The majority of European societies developed in the Judeo-Christian tradition of endorsing humans as a superior creation and later the Cartesian tradition of seeing the human mind as unique and superior – both of which are worldviews that arguably justify an entitlement to use nature on humankind's own terms.Footnote 129
In the context of these differing worldviews, scholars have criticized the idealization and replication of native relationships with nature as they are part of a worldview that matured specifically in tandem with the need of indigenous peoples to protect the surrounding environment on which they depend for survival.Footnote 130 Yet, this ignores the fact that non-indigenous societies, too, are now increasingly cognizant of their dependence on their surrounding environment. The necessity to face threats of climate change and other ecological changes, as well as the scientific understanding of interconnected ecosystems, have led to a shift in the perception of nature in the West. Accordingly, Knauß sees the ‘hybrid connection of modern rights and indigenous beliefs … as a[n] … answer to the Anthropocene question of how to approach human stewardship after having acknowledged the enormous and sometimes hazardous impact of humanity’.Footnote 131 It is also important to consider to what extent this hybridity of rights of nature laws actually challenges the traditional Western doctrine of protecting individual rights and forces it to reconcile with opposing doctrines dominant in some non-Western cultures, which focus on relationality and collective rights.Footnote 132 However, this is beyond the scope of this article.
In the context of the Anthropocene it has become commonplace to question the line traditionally drawn between humanity and nature, as well as seriously to consider the interests of nature so as to ensure a healthy living environment.Footnote 133 References to recognizing nature's intrinsic value increasingly can be found in international treaties, such as in the preamble to the Convention on Biological Diversity.Footnote 134 Looking within Europe, the European Union (EU) Biodiversity Strategy to 2020 also refers to nature's intrinsic value, but it is still far from being the norm.Footnote 135 At the EU level, the most relevant environmental laws, such as the EU Habitat Directive,Footnote 136 do not contain such a reference.Footnote 137 Nevertheless, a high number of EU enactments and policies guarantee the declarations enshrined in the Treaty on European UnionFootnote 138 regarding protection of the environment and the promotion of sustainable development.Footnote 139 At the level of Member States, members of the Green Party in Sweden have proposed a constitutional amendment to establish nature's rights to ‘exist’ and ‘thrive’.Footnote 140 Similarly, the Green Party in the United Kingdom (UK) is encouraging communities to adopt local rights of nature laws.Footnote 141 This increasing political support combined with examples of successful implementation of this approach in non-European countries could be the basis for further developments in Europe.
4. CONSIDERING THE DEVELOPMENT OF RIGHTS OF NATURE IN GERMANY
Both environmental protection and the protection of animals have been included in the German Constitution as a state goal in Article 20(a) regarding the protection of a healthy living environment, animals, and future generations.Footnote 142 Furthermore, there are developments that show signs of a departure from anthropocentric approaches to law in Germany, as illustrated by the recognition of an intrinsic value of nature in Article 1 of the German Federal Nature Protection Act.Footnote 143 The question is whether this can be used as a basis for Germany to move towards the recognition of legal rights for ecosystems.
4.1. From the Question of Standing for North Sea Seals to Public Interest Litigation
The judiciary was first confronted with questions relating to rights of nature during the 1980s. In 1988, some years after the Sierra Club v. Morton decision in the US, the Administrative Court in Hamburg considered a similar case. Legal and natural persons in Germany possess Rechtssubjektivität (an equivalent to legal personality), which means that they are holders of subjective rights, namely rights a person can invoke to enforce their interests.Footnote 144 The decision centred on the question of granting subjective rights to seals who were dying in large numbers in the North Sea as a result of waste being dumped in their habitat.Footnote 145 The Court had to decide whether seals as animals inhabiting the North Sea, and as such allegedly protected by provisions regulating pollution on the High Seas, were legal persons under German law.Footnote 146 Perhaps unsurprisingly, the Court rejected this argument and held that seals do not fulfil the requirements for standing.
Because of a strict standing doctrine in German procedural administrative law, as set out in Article 42(2) of the Administrative Procedures Code,Footnote 147 establishing standing in environmental litigation in Germany can be challenging. In order for an individual claimant to establish standing before the Administrative Court for the purpose of enforcing environmental provisions, injuries to his or her own subjective public rights must be proven.Footnote 148 It is not enough if a contested norm protects the general interest of the public.Footnote 149 Looking at nature protection in the Federal Nature Protection Act,Footnote 150 the dominant opinion is that its intent is to protect nature for its own value or for the common good, making it so-called objective law, and not creating any subjective rights.Footnote 151 When it comes to the aim of protecting certain habitats that are not of interest to a group of people, such as property owners or adjacent neighbours, establishing standing is possible only for recognized environmental organizations in accordance with Germany's public interest litigation model.
Most other European countries have a standing doctrine that requires proof only of sufficient interest. Compared with this approach, the requirements for obtaining access to administrative courts in Germany are particularly strict.Footnote 152 In order to improve the public's access to court in environmental matters, as is required by international and EU norms,Footnote 153 the option of public interest litigation was established by the Environmental Remedies Act in 2006, which affords standing to environmental organizations recognized in Article 3 in pursuing claims for failure to comply with environmental norms.Footnote 154 The Federal Administrative Court clarified that public interest litigation is an extension of the subjective rights doctrine.Footnote 155 This deviation has received criticism for not fully adhering to the traditional standing doctrine in Germany – where the focus lies on protecting individuals – or granting the wide access to courts required by EU law.Footnote 156
One argument in favour of establishing rights of nature is that litigation will not be reliant on private individuals initiating claims. Especially in the case of large-scale projects, private individuals often do not have the financial resources or are simply not willing to take legal action.Footnote 157 The public interest litigation model resolves this issue as it grants standing to recognized organizations that are concerned specifically with environmental matters. Ramsauer thus argues that, in terms of practical enforcement, granting legal personality to the natural entities themselves would in practice create no significant difference compared with the existing model. He asserts that a German adaptation of rights of nature requires the creation of a representative for the environment; this would be an institution consisting of human actors working within competences concerned with environmental protection and, therefore, reliant on the same principle as the public interest litigation doctrine.Footnote 158 Nevertheless, the doctrine has been discussed as having significant implementation gaps in the area of environmental and animal protection.Footnote 159 Compared with the existing model, enabling natural objects to establish injury to their subjective rights would not only bridge that gap, but could also be tailored to fit within the traditional German standing doctrine. Moreover, granting legal personality to natural objects goes beyond the question of standing; it reshapes the legal and moral conceptions of the environment.
4.2. Further Integration into the Existing German Legal Framework
The successful implementation of rights of nature in Germany requires a thorough assessment of how to integrate such rights into the existing legal framework. This is especially pertinent for a civil law country that relies heavily on codified laws. The integration process in Ecuador started with a constitutional norm. Legal scholars argue that such a constitutional amendment would also be necessary in Germany if the enforcement were to be effective and extend the existing public interest litigation model.Footnote 160 Recognition at the constitutional level would make it possible to claim these rights before the Federal Constitutional Court and give them the necessary weight to be enforceable against human interests.Footnote 161 It would also broaden the possibilities for litigation beyond their use in administrative and civil actions and would be likely to be followed by the creation of secondary laws to clarify the application of norms.
The German Constitution already contains an environmental provision in Article 20(a). Because of its terminology and its position outside the Basic Laws in Articles 1 to 20, however, it is interpreted as objective law, which merely creates governmental duties to protect the environment rather than subjective rights for natural objects and animals or a right for humans to a healthy living environment.Footnote 162 Two options have been posited for the implementation of constitutional rights of nature. Either Article 20(a) of the German Constitution could be amended to recognize the subject of rights of nature and the animals mentioned in the Article, or a new provision could be created within the basic rights framework of the Constitution.Footnote 163 As a constitutional amendment requires a two-thirds majority in the German Bundestag, significant political support is needed.Footnote 164 Unlike Sweden and the UK, the German Green Party does not yet have any policies on such a legal reform. However, momentum could be built on the fact that environmental issues, such as climate change and the protests surrounding it, are hotly debated across Germany.Footnote 165
When it comes to the enforcement of rights of nature in court, be it litigation before the Constitutional Court or an administrative court, the natural entity will need to be represented in its own right. German law already applies a number of doctrines for the representation of natural as well as legal persons and, therefore, can accommodate the realization of a similar representation model for ecosystems.Footnote 166 Compared with indirect representation through the public interest litigation model, the rights of nature approach could be supported by the creation of a separate body which has the financial support of the state and is regulated by guidelines specifying a guardian role, similar to the New Zealand model. If such an approach were adopted, existing environmental agencies would need to be included, and regulations concerning the guardian's responsibilities would need to be thoroughly developed or incorporated within the framework of existing models.Footnote 167 This might be more difficult in Germany, in the absence of the cultural and indigenous values of land stewardship present in Ecuador and New Zealand.
Another difficulty is defining the interests and boundaries of natural entities.Footnote 168 Ramsauer points to the difficulty of nature being an abstract concept that does not refer to one entity, but rather to a collection of living and non-living entities as well as biophysical processes.Footnote 169 The broadly framed rights for Pachamama in Ecuador, for example, may meet with disapproval in Germany. Similarly, New Zealand's legislation refers to ecosystems as ‘spiritual entities’, a term that may not resonate with dominant cultural values in Germany. Municipal ordinances implemented in the US provide an alternative example of what implementation in Germany could look like. These municipal ordinances do not base their definition of ecosystems solely on indigenous concepts, but instead define them as ‘natural communities’ which form the basis for the healthy functioning of human communities.Footnote 170 Differences in terminology aside, the narrow scope of New Zealand's legislation in granting rights to individualized natural objects and ecosystems may be a suitable model for legislative change in Germany.Footnote 171
Another aspect to be considered is what the hybridity between modern and indigenous legal principles would mean for a country like Germany, which is shaped by a Western focus on individual legal rights. Gutmann suggests that the Ecuadorian interpretation of rights of nature, based on relationality and a continuous, non-static process of balancing interests, is an alternative to the doctrine of subjective rights.Footnote 172 Whether this move to a more relational conception is necessary, or whether the traditional doctrine being complemented by recognizing a new set of rights holders is enough to transform the approach in Germany, could be the subject of further investigation.
4.3. The Future of Rights of Nature in Germany
The German legal system certainly has the potential to incorporate rights of nature. The challenges with implementing this lie in the absence of political will, the costs of consequential institutional changes, and uncertainty as to whether it would achieve the intended outcome.Footnote 173 Some commentators argue that the transformations required for an effective realization are not worth the effort, as the end result may not be significantly different from the existing public interest litigation framework.Footnote 174 Strengthening the existing model instead could provide an alternative and more easily implementable approach.Footnote 175
However, the rights-based approach can offer ‘a shortcut to express our conviction that an entity needs to be protected’.Footnote 176 This contention could be interpreted as hinting at a quick and effective reform, something that is very much needed against the backdrop of the scientific prognosis concerning climate change.Footnote 177 With the novelty of the approach, there is a risk that the postulated rights initially will lack the proper institutional framework to back them up. Nevertheless, it should not be assumed that this framework will not ultimately follow. It is important to understand that the effective implementation of rights of nature will inevitably be a gradual development, as is always the case with substantial legal reform.Footnote 178 In that context the German public interest litigation model can be seen as a small step in this direction as it steers environmental law in Germany towards protecting nature's intrinsic value in the courts, as well as representing general environmental interests where claims brought by individuals do not succeed.Footnote 179 Maintaining momentum and taking another step towards rights of nature could help to address the asymmetry of having legal personhood for corporations – which may exploit nature for economic gain – while having no such status for the ecosystems the integrity of which is threatened by this exploitation.Footnote 180
5. CONCLUSION
Nearly five decades ago Stone reflected on the possibility of granting legal personhood to natural objects and on the practical impact of standing for potential new rights holders in environmental litigation.Footnote 181 The examples analyzed in the comparison above demonstrate that the notion of creating legal personhood for nature has gone far beyond theoretical considerations and is now being applied in a number of countries. Nevertheless, practical challenges in transposing such laws undoubtedly exist. In order to enforce these rights in practice, adjustments to political institutions and economic behaviour are required. Granting legal personhood to nature involves a difficult balancing exercise between human interests and those of nature. As economic growth is a key factor in the dominant neoliberal development model, existing laws relating to rights of nature have not managed to change significantly the policy-making path in countries like Ecuador.Footnote 182 In order to make use of the potential of this expansion of legal personality, existing bodies of law, such as those governing property rights, must be adjusted. The approach clearly challenges many existing norms and forces legal systems to adapt if it is to be seriously implemented. While such an adaptation poses many challenges, it is exactly this potential for comprehensive reform that rights of nature offers. Its very purpose is to rebalance dominant economic and governance structures.
The comparison above has asserted the importance of an approach that is supported by and resonant with a country's cultural values. This may make countries with indigenous and nature-centric beliefs particularly hospitable to rights of nature doctrines. Conversely, implementation within Western jurisdictions may be challenging. However, a legal debate regarding rights of nature has emerged independently of indigenous perspectives. The concept has gained momentum in the face of increasing urgency to protect the environment from global ecological changes aggravated by human activity. Rights of nature have therefore emerged as an alternative approach in modern environmental law to better address the issues of environmental degradation that society is facing today.Footnote 183
Whether this approach can be implemented in countries without indigenous populations remains to be seen. Certainly, the prospect of rights of nature reforms, as well as doctrines to allow for such a development in Germany and other European countries, should be further considered by scholars to identify options for successful implementation. If the ultimate aim is to seriously adapt our governance structures to address the consequences of the Anthropocene, failure to depart from the anthropocentric frameworks within our legal systems is not the solution, as it is not consistent with the scientific understanding of our ecosystems and will thus inhibit us in finding effective ways to address environmental issues. The criticism that rights of nature laws are empty postulations which do not effect meaningful change may be warranted. However, if executed thoroughly and with the proper institutional frameworks, they can give weight to existing declarations about nature's intrinsic value, as enshrined in domestic laws and in the preambles to international documents. According to the logic of the Western legal tradition of rights, the risk of empty postulations is far more likely if declarations about nature's intrinsic value are not accompanied by a recognition of legal personality, which enables entities to legally protect this value.
