“Nature […] is Always Right”

In recent years, the notion of “human interconnectedness” with the “non-human world” led to several legislative initiatives and court decisions granting legal subjectivity to nature and/or recognizing inherent “Rights of Nature” (RoN). Among others, the granting of rights to “nature” or “Pacha Mama” by the Ecuadorian constitution in 2008, to the Whanganui River in New Zealand in 2017 and the Spanish “Mar Menor” in 2022 as separate natural ecosystems are illustrative in this respect. However, Western legal traditions are predominantly anthropocentric, i.e. human-centred. This circumstance allows for comprehensive environmental and nature protection, but does not seem to be compatible with the equation of humans and nature as “legal persons”, a concept usually linked to human beings or economic actors like corporations.

Interdependence of Human Rights and “Rights of Nature”

Both the ideas of protection of humans and nature were born out of necessity, a situation of vulnerability and apparent defencelessness. In the case of human rights (HR), it was the horrors of the Second World War that prompted the international community to commit itself to the protection of human beings for the sake of their humanity. This commitment found its way into the UDHR, which was to become the model for many other HR instruments with various enforceable subjective rights. Also with regard to nature, a need for subjective protection arose, albeit much later. For various peoples and faith communities, nature in its diversity and variety is the embodiment of all being and, in this capacity, the basis of all life, not just human life. Nevertheless, nature is predominantly perceived as a mere object, environmental protection and nature conservation are undertaken in favour of humans. Based on the assessment that such anthropocentric protection of nature (e.g. via the HR to a clean, healthy, and sustainable environment recognized by the UN General Assembly in 2022) might not suffice to ensure comprehensive protection for nature itself, the idea of RoN emerged, based primarily on indigenous cosmologies internalising an ecocentric, i.e. nature-centred perspective.

Anthropocentrism vs Ecocentrism

Already in 2009, the UN General Assembly adopted two resolutions (UN Doc. A/RES/63/278 and UN Doc. A/RES/64/196) promoting the necessity of humans to live in “harmony with nature” and acknowledging that humankind’s destructive interaction with nature damages both the integrity of nature and human dignity. The idea of strengthening nature protection through a less anthropocentric approach is also supported by the Parliamentary Assembly of the Council of Europe, which in September 2021 called for the protection of nature’s intrinsic value – in light of the interrelationship between human societies and nature – and pointed out that environmental protection based on an anthropocentric and utilitarian approach prevents natural elements from being afforded any protection. Similarly, in the run-up to COP15 in 2022 UN HR experts warned the international community that “[h]ealthy biodiversity and ecosystems are the foundation of life and fundamental to the enjoyment of human rights” and emphasized that “measures intended to protect biodiversity cannot come at a cost to human rights”.

However, the very different objectives of anthropocentrism and ecocentrism could make it difficult to integrate the concept of RoN into traditional legal structures. The anthropocentric perspective is characteristic of Western legal systems, which understand “nature” as an object whose existence and integrity is dependent on the benevolence of humans and subject to their arbitrariness. Current environmental and nature protection laws do not fundamentally prevent disproportionate and unsustainable use, pollution and destruction of nature by humans, whose intervention is not excluded by such protective standards. An ecocentric understanding of nature, to the contrary, focuses on more comprehensive, thus subjective protection, also considering the human being as a potential violator.

Options to Develop “Rights of Nature”

Two options for the elaboration of RoN seem to be conceivable: either (1) an analogous application of HR to nature or (2) the development of an original set of RoN. As far as can be seen, national manifestations of RoN observed to date appear to be original RoN. For example, the “Mar Menor Act” contains the following rights specially adapted to the needs of the ecosystem “Mar Menor” as a specific legal person: the rights to exist, to protection, to conservation, to restoration (Art. 2 para. 2). Similarly, the Ecuadorian constitution recognises certain fundamental rights of “Pacha Mama” (a right to restoration (Art. 72 para. 1), a right to full respect for its existence and the maintenance and regeneration of their life cycles, structure, functions and evolutionary processes (Art. 71 para. 1)), which, however, in their formulation are very similar to human dignity and the right to life in particular. In contrast, in two highly debated judgements (here and here) which unfortunately lacked profound dogmatic justification the Erfurt Regional Court (Landgericht) in Germany attempted to analogously apply HR guarantees from the EU-ChFR to nature on the occasion of two “Diesel” cases. The responsible single judge justified his approach with nature’s vulnerability and need for protection in the face of man-made destruction and the applicability of HR to non-human persons such as companies.

RoN Against Humans?

The main problem in bringing anthropocentrism and ecocentrism together in the concept of RoN does not concern the protection of nature per se, but the subjective dimension of RoN. This is shown in particular by the attempt to read RoN into existing HR by analogy: Depending on the respective language version, HR instruments inconsistently define the “human being” (e.g. Art. 1 UDHR; Art. 2 ECHR; Art. 6 ICCPR) or – more openly – every “person” (e.g. Art. 3 EU-ChFR) as HR bearers, whereby the latter term could theoretically also include nature. However, to be regarded a person and thus a bearer of its own subjective rights, nature must first be recognised by the respective legislator as having any legal capacity at all. Not least because of the fundamental inertia of law, a rapid “remodelling” of anthropocentric legal subjectivity as a core idea of Western legal traditions to incorporate the concept of RoN is currently not to be expected.

This is also due to the fact that a functional derivation of RoN from HR would take on the latters’ character as rights of defence of individuals against the state. Could RoN themselves be regarded and used as rights of defence against humans? A corresponding assumption would require two things:

(1) Firstly, the granting of rights must necessarily be preceded by the transformation of nature from legal object to legal subject, the recognition of legal subjectivity being a prerequisite for the granting of subjective rights.

(2) Secondly, RoN as an ecological reflection of HR would have to be shaped in rank and scope according to the model of the latter.

“In Dubio pro Natura”?

Would it even be possible to treat humans and nature as equals in view of their possibly very different needs for protection? Approaching the problem in purely literary terms, Johann Wolfgang von Goethe already in 1829 said: “[…] Nature is no fun at all, it is always true, always serious, always strict, it is always right, and the mistakes and errors are always man’s.” But is nature “always right”? In this way, Art. 395 para. 4 of the Ecuadorian Constitution could be understood: The provision contains the principle “in dubio pro natura”, according to which, in case of doubt, the interpretation of the law that is most favourable to nature should be chosen. If this principle were observed when weighing up RoN against HR in individual cases, a downright degradation of HR guarantees in favour of nature could be the consequence.

However, such approach would not be compatible with the universal nature of HR and would only be conceivable if one of the parties involved were de facto inferior and thus more vulnerable. Assuming that nature and humans were of equal rank, however, this would be arbitrary. Rather, in the event of a conflict, an equal balancing of RoN and HR would be necessary, in the context of which neither of the two subjects of protection would be favoured across the board.

Dogmatic Anchoring of RoN

Regardless of the actual design of RoN, their solid dogmatic anchoring is key, not least for the social recognition of nature as a new legal subject and the enforceability of these new rights. This involves yet a definitional level that concerns the problem of the legal treatment of cross-border, possibly global phenomena such as “nature” per se. A (generally valid) definition of a geographically delimitable nature does not exist, a circumstance that makes the territorially limited conferral of RoN by a national legislator a problem, potentially creating conflicts of jurisdiction. Only a global approach can provide a remedy here, just as it can for HR protection. The actual legal added value of “subjectivising” nature and recognising RoN is thus still unclear and will probably mainly have symbolic value in the form currently practised.