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From: Citizens' AssemblySent: Thursday 5 May 2022 16:51To: Citizen's Assembly SubmissionsSubject: FW: Information on Rights of NatureAttachments: BeÌ taille_2019 JEEPL.pdf; Rights_of_nature_Kramer_2020.pdf; Jan DARPO -

IPOL_STU(2021)689328_EN.pdf

Categories: Biodiversity Loss

From: Julien Bétaille Sent: Friday 29 April 2022 12:28 To: Citizens' Assembly <[email protected]> Cc: Subject: Information on Rights of Nature

This message originated from an external source. Be very cautious with any links or attachments that it contains.

Dear members of the citizen assembly of the Republic of Ireland,

As an environmental legal scholar, I would like to submit to you the attached information regarding the opportunity of rights of nature. From a legal perspective, their added value remains to be seen, especially in the European context. You can also watch the videos of an international conference held in english in 2019 : https://www.dailymotion.com/playlist/x6lm7g I wish you good success in your work on biodiversity. Best regards,

Julien Bétaille Tenured Associate Professor of Law, Toulouse 1 Capitole University, France.

Julien BETAILLE.

Bétaille

journal for european environmental & planning law 16 (2019) 35-64

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1 Introduction

Thirty-six years after Christopher Stone’s proposal to grant Nature a legal per-sonality was published,1 the Ecuadorian Constitution was the first to make Rights of Nature (RoN) a reality in positive law,2 followed by further develop-ments around the globe.3 Against the backdrop of the first concrete manifes-tations of RoN on the ground, the discussion about the added value of RoN has moved to the forefront of the legal literature. At the center of RoN is the assumption that nature is not merely to be treated as an object but also – to some extent – as a subject of rights which can be represented in court by so-called “guardians”. In doing so, RoN abandons the long-standing instrumen-talist approach to nature by the law, which principally reduces nature to an object, which is to be purchased and appropriated at one’s own discretion. In addition to the historical theoretical and philosophical debate surrounding the representation of non-human entities, such as rivers or chimpanzees, be-fore court a legal debate has ensued on the practical repercussions of a shift towards granting specific rights to nature. The thought-provoking title of the book “The Rights of Nature: A Legal Revolution That Could Save the World”, writ-ten by David Boyd, seems to suggest that RoN has the unique potential of cur-ing many of the deficiencies of “modern” environmental law.4

Even if the content of the book is more balanced, one might wonder wheth-er the title on itself does not create a mirage:5 for, is it not too simple to assume

1 Christopher D. Stone, “Should trees have standing? Towards legal rights for natural objects”, 45 South California Law Review 450 (1972).

2 See Louis J. Kotzé and Paola Villavicencio Calzadilla, “Somewhere between Rhetoric and Reality: Environmental Constitutionalism and the Rights of Nature in Ecuador”, Transna-tional Environmental Law, 6:3 (2017), pp. 401–433; Craig M. Kauffman and Pamela L. Martin, “Can Rights of Nature Make Development More Sustainable? Why Some Ecuadorian lawsuits Succeed and Others Fail”, World Development, Vol. 92, 2016, pp. 130–142.

3 Inter alia in Bolivia (see Paola Villavicencio Calzadilla and Louis J. Kotzé, “Living in Harmony with Nature? A Critical Appraisal of the Rights of Mother Earth in Bolivia”, Transnational En-vironmental Law, 2018, online, pp. 1–28), New Zealand, India (see Victor David, “La nouvelle vague des droits de la nature. La personnalité juridique reconnue aux fleuves Whanganui, Gange et Yamuna”, Revue juridique de l’environnement, 2017, pp. 409–424), Colombia, in some parts of the United-States and France (Nouvelle Calédonie), etc.

4 David R. Boyd, The Rights of Nature: A Legal Revolution That Could Save the World, ecw Press, Canada, 2017.

5 Other authors are much more cautious, such as Louis J. Kotzé and Paola Villavicencio Cal-zadilla. For example, according to them, “the constitutionalization of the rights of nature in Ecuador does not necessarily mean that more ecocentric laws, policies and governance practices will immediately come about” (Louis J. Kotzé and Paola Villavicencio Calzadilla,

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37Rights Of Nature: Why It Might Not Save The Entire World


that granting rights to nature constitutes the much-needed revolution that will end the ecological destruction on this planet? Would it really be that straight-forward: by granting explicit rights to nature, a more ecological governance could emerge, which would no longer be exclusively predicated on an instru-mentalist, anthropocentric understanding of nature? Even where Christopher Stone’s article remains arguably one of the most groundbreaking pieces of legal literature, I submit that Stone’s underlying thesis is no longer as powerful as before, especially taking into account the recent progressive developments in the field of what can be dubbed modern environmental law. Therefore, this paper proposes to approach the subtitle of David Boyd’s book as a question rather than a clear-cut assertion.

The RoN’s theory, as spelled out in the existing literature, rests upon on three main assumptions: first, current (or modern) environmental law is sup-posed to be excessively anthropocentrically framed in order to be able to re-assert Nature’s intrinsic value;6 second, implementing RoN constitutes a legal revolution, i.e. it is to be treated as a legal paradigm shift;7 third, implementing RoN would be more effective than environmental law to ‘save the world”.8 The purpose of this article is to demonstrate that the three assumptions underpin-ning RoN might be at least partially wrong.

The methodological posture adopted in this article is distanced, critical and reflexive, keeping in mind the mantra that ‘scientific observation is always a polemical observation”.9 In other words, the goal is not to present definitive conclusions when it comes to the topic RoN, rather I aim to spur the scien-tific debate on the validity of the substantive underpinnings of RoN. With the argumentation expressed below I do not want to choose sides in the heated debate between proponents and opponents of RoN. Rather I want to improve the quality debate on the added value of RoN. As a result, this article is to be approached as an invitation for a further debate, both directed at supporters and opponents of RoN. This article seeks to further finetune the arguments at play when discussing the benefits and disadvantages of RoN. In doing so, this article opts for an inclusive approach, i.e. an approach which allows both views to coexist. Accordingly, this critique is not to be read as a definite rejection of

“Somewhere between Rhetoric and Reality: Environmental Constitutionalism and the Rights of Nature in Ecuador”, Transnational Environmental Law, 6:3 (2017), p. 432).

6 For example, see David R. Boyd, The Rights of Nature: A Legal Revolution That Could Save the World, op. cit., p. xix; xxiii; xxv.

7 For example, see David R. Boyd, ibidem, p. xxxv; 182.8 For example, see David R. Boyd, ibidem, p. xxxv; 143; 232.9 Gaston Bachelard, Le nouvel esprit scientifique, 1934, Quadrige, puf, réed. 1984, p. 16.


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RoN altogether. Quite the contrary. One of the cornerstones of this article is the firm belief that science needs to be subjected to scrutiny in order to thrive.10 And thus also the principles upon which RoN are based merit a critical review.

To be sure, RoN can be studied from different perspectives: inter alia ethical, philosophical, religious, political and/or legal. The goal of this article is not to study the philosophical premises of RoN, even if a philosophy of law analysis might lead to interesting findings, especially in view of the possible linkages between RoN and the concept of “natural law”. However, for the time being, it is not necessary to repeat the positivist criticisms of the natural law tradition.11 It is important to keep a proper legal perspective and put the focus on RoN’s ontology. Again, it is imperative to make a clear-cut distinction between the two conflicting “stances” or “points of view” that might be in order here. On the one hand, as a “citizen”, it is possible to be attracted by the philosophy which underpins RoN, such as the very powerful idea that the intrinsic value of nature ought to be fully protected. However, on the other hand, it is obvious that the role of legal scholars is to subject RoN to scrutiny and to remain critical when it comes to the high-reaching promises that accompany RoN. For, legal scholars adopt a similar critical role when analyzing the suitability of modern environ-mental law. Both modern environmental law as well as RoN is to be assessed and criticized by scholars, including by legal scholars. Given the philosophical, ethical and religious foundations of RoN, I understand that the positivist approach which is put forward in this paper could be framed as “reductionist”. However, the pragmatic approach which is used below, might merit a deeper understanding of the fundamental premises upon which RoN is based. During the past decade, nature’s rights have been implemented into positive law in several jurisdictions around the globe. In the other papers that are included in this special issue, several cases of concrete manifestation of RoN are briefly discussed. Seeing that RoN are currently being applied on the ground, a com-prehensive debate on the juridical-technical questions linked to RoN would be outdated. Another possible angle to approach RoN is to focus on the precise

10 In that respect, it remains important to use objective arguments when discussing the pros and cons of RoN. For instance, comparing RoN proponents with Copernicus and his fol-lowers, which “were ostracized, excommunicated, even burned at the stake” does not help to guarantee a reasonable debate whatsoever (David R. Boyd, The Rights of Nature: A Legal Revolution That Could Save the World, ecw Press, Canada, 2017, p. xxxiv).

11 A good summary is provided in Alexandre Viala, Philosophie du droit, Ellipses, 2010, p. 140 s. et p. 157 s. ; Eric Millard, Théorie générale du droit, Connaissance du droit, Dalloz, 2006, pp. 37–42 ; Michel Troper, La philosophie du droit, 3e éd., Que sais-je ?, puf, 2011, p. 16 s. ; Henri Lévy-Bruhl, « La Science du Droit ou “Juristique” », Cahiers Internationaux de Soci-ologie, Vol. 8, 1950, p. 125.




articulation of RoN in jurisdictions such as Ecuador and New Zealand, which are at the forefront of the RoN movement. However, such assessment has already been carried out by other legal scholars, which renders it superfluous from an eu perspective.12 Rather, it is more relevant to focus on RoN as a legal instrument in itself and the many promises it puts forward. The main thesis of this article is thus that RoN are not to be presented as a miracle solution to the many flaws of existing environmental norms. Whereas this article is not to be read as a pamphlet against RoN or an outright rejection of the concept in itself, it still aims to critically investigate the main underpinnings of RoN, when compared to the recent evolutions of modern environmental law.

Before delving into the substantive arguments at play here, two additional disclaimers are in order. First, the scope of this paper is inherently limited to the framework of the European legal culture. Accordingly, the views presented below are those of a western scholar, accustomed to eu environmental law, in particular as applied in France. Therefore, it is obvious that those views might be biased, especially when used in a non-eu context. It is important to un-derline the relatively “progressive” character of eu environmental law, which could render it difficult to replicate the conclusions of this paper in the context of other jurisdictions, which might be characterized by a less progressive body of environmental legislation. Second, the views presented below are not nec-essarily “original”. Indeed, RoN has been subject to severe criticism since it has been pitched by Stone as novel template or blueprint to nature conservation back in the 1970s.13 However, its recent comeback in many jurisdictions might present yet another welcome opportunity to update the well-established criti-cism from before. Seeing that also in the European Union, which has passed many progressive pieces of environmental legislation during the past decades, a plea is launched to implement RoN (see the papers of Hovden and Schouke-ns in this special issue), a critical analysis of RoN surely comes in timely. Since RoN is increasingly being implemented into concrete regulatory frameworks, it becomes all the more interesting to shift the debate towards the legal under-pinnings of RoN rather than exclusively focusing on the philosophical ground-work of RoN.

12 See inter alia Louis J. Kotzé and Paola Villavicencio Calzadilla, “Somewhere between Rhetoric and Reality: Environmental Constitutionalism and the Rights of Nature in Ec-uador”, op. cit., pp. 401–433; Paola Villavicencio Calzadilla and Louis J. Kotzé, “Living in Harmony with Nature? A Critical Appraisal of the Rights of Mother Earth in Bolivia”, op. cit., pp. 1–28.

13 See inter alia P.S. Elder, “Legal Rights for Nature: the Wrong Answer to the Right(s) Ques-tion”, Osgoode Hall Law Journal, vol. 22, n° 2, 1984, pp. 285–295.


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The main thesis of this paper is that RoN will not do away with the main shortcoming of modern environmental law, being the lack of proper enforce-ment. It is opined that merely acknowledging nature’s rights into legislation will in itself not lead to a better protection of the eu’s endangered nature if not complemented with a clear commitment for more strict enforcement. The added value of RoN needs to be measured against the three main assumptions upon which it is based. In this respect, it is important to underline that a revi-sion of modern environmental law could, in itself, come forward to many of the prevailing criticism upon which RoN are based. In this article, it is substan-tiated that modern environmental law is able to recognize the intrinsic value of Nature (1), second, that acknowledging RoN is not necessarily to be equated to a “legal revolution” (2) and, third, that RoN might not live to its promise re-garding saving the world (3).

2 Environmental Law Revisited: Reinforcing the Intrinsic Value of Nature?

The first assumption underlying the RoN’s theory is that environmental law is too anthropocentric to take into account the intrinsic value of nature, whereas RoN would be more suitable to carry out the task of reasserting this intrinsic value. In other words, RoN is founded upon the assumption that even mod-ern environmental law is not equipped to fully protect the intrinsic value of nature. This is a poignant point of departure. Often, RoN advocates submit that modern environmental law is the result of Cartesian philosophy, reproducing the renowned Nature/Culture dualism. Accordingly, environmental law would explicitly acknowledge that mankind is to be framed as the “master” of nature. For instance, pursuant to current property law nature is to be treated an ob-ject. In contrast, however, RoN is often linked to ecocentric philosophy and therefore is more inclined to approach nature as a subject of rights. However, this dichotomy, while attractive from a philosophical point of view, renders an objective legal critique of RoN challenging at best.

In my view, RoN supporters attach too much weight the above-depicted dis-tinction. Indeed, it is possible to argue that modern environmental law is less anthropocentric than it used to be (2.1), that property rights can be limited in light of environmental interests (2.2) and that modern environmental law pro-tects the intrinsic value of Nature (2.3), which recently has led to the recogni-tion of “pure” ecological harm in several legal instruments (2.4). Moreover, on the procedural ground, access to justice has been broadened in environmental




cases (2.5) and the burden of proof is no longer an insurmountable hurdle in legal cases (2.6).

2.1 Environmental Law is Less Anthropocentric than it Used to BeFor starters, it is undisputed that “prehistoric” environmental law was anthro-pocentric. This is poignantly illustrated by the Convention for the Protection of Birds Useful to Agriculture of 1902 and the Convention between the Unit-ed States and Other Powers Providing for the Preservation and Protection of Fur Seals of 1911. Pursuant to the wording of both treaties, the species covered by the protection schemes, were protected only because there were useful to humans.

However, environmental law has changed substantially since then. To be more precise, it developed from a set of norms merely applicable to the en-vironment to a set of norms to be promulgated in favor of the environment. The latter approach is now explicitly present in eu environmental legisla-tion.14 Whereas many propagators of RoN still posit that environmental law is predominantly anthropocentric, this view no longer holds completely true. In other words, when RoN supporters claim modern environmental law to be anthropocentric, they deliberately choose to promote an outdated version of environmental law. Of course, a significant part of the current environmental statutes still reflects anthropocentrism to some extent. Yet, in truth, modern environmental law is to be approached as a mixture of anthropocentric and ecocentric viewpoints.

In recent times, the interdependence between humans and nature has moved to the forefront of the legal debate. Several soft law instruments, such Rio Declaration of 1992, which recognize “the integral and interdependent na-ture of the Earth, our home”. However, increasingly, this interdependence is also explicitly reasserted in constitutional norms. For example, the Preamble of the French Constitutional Charter of the environment of 2005 emphasizes the following:

14 See for example article 2, paragraph 1, of the regulation n° 1367/2006 of the European Parliament and the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies. Environmental Law is defined as legislation which “contributes to the pursuit of the objectives of Community policy on the environment as set out in the Treaty: preserv-ing, protecting and improving the quality of the environment, protecting human health, the prudent and rational utilisation of natural resources”.


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Natural resources and equilibriums have conditioned the emergence of mankind;The future and very existence of mankind are inextricably linked with its natural environment;The environment is the common heritage of all mankind;Mankind exerts ever-increasing influence over the conditions for life and its own evolution.

This excerpt is remarkably akin to Chief Seattle’s famous quote “The earth does not belong to us, Man belongs to the earth”. The very fact that there exist ex-plicit constitutional norms in Descartes’ homeland which dare to question the dualism between man and nature and, subsequently, underline their mutual interdependence, is to be cited as a remarkable illustration of the gradual shift towards ecocentrism in modern environmental law, even without there being an explicit recognition of RoN.15

2.2 Property Rights Can Be Limited in Light of Environmental ProtectionProperty law is at the forefront of many of the critiques of modern environ-mental law. For, indeed, the RoN supporters often see property rights as a typical product of “Western Civilization”, which underlines the hierarchical re-lationship between mankind and nature. While the “classic” approach towards property – which defines it as an “absolute” right has many defects, it would be one-sided to pitch it as a definitive recognition of the dominion of mankind over Nature.

In truth, however, it is a well-established practice that property rights can be limited in the interest of environmental protection. And thus – at least in theory – it is perfectly possible to revise vested rights – for instance related to the economic exploitation of natural resources – when this would compromise the survival of the ecosystems present on such lands. Of course, many authori-ties would still feel reluctant to do so, especially given the financial compen-sation which might be in order in such instances. Yet, in itself, property law does not constitute a definitive barrier to a more progressive environmental

15 Article 1 of the charter of the environment recognizes the human right to a healthy en-vironment and the following articles provides duties towards the environment (duty to protect it, to prevent damages, to repair damages and to adopt precautionary measures if necessary). Rights to information and participation are also in that Charter. The full text of the Charter can be found here in English: https://www.conseil-constitutionnel.fr/sites/default/files/as/root/bank_mm/anglais/charter_environnement.pdf.




protection of ecosystems, even not when these ecosystems are primarily located on private lands.

This is but common sense. The increasing importance of planning law is to be approached as a recent manifestation of this trend. By enacting specific restrictions for building on certain plots of land, the environment is further preserved. Many jurisdictions have seen as steady rise in land-use schemes, which at least partly also reserve certain areas as “no take-zones” given their importance from an ecological point of view. Such environmental objectives can be used in order to further limit property rights. In many jurisdictions, public easements are commonly used in the interest of environmental protec-tion. In other words, property rights are no longer to be treated as an absolute barrier to enhanced environmental protection. Yet, limiting property rights might require the governments to provide for additional financial compensa-tion schemes in order to further balance the encroachment of property with the objective of enhanced environmental protection. This might render it a less attractive policy option on the ground. However, in practice, such com-pensation is not systematically required.16

That said, a lot of discretion remains. In the European Union, for instance, the right to property recognized under article 17 of the charter of fundamental rights of the European Union is “not an absolute right” according to the Court of Justice of the European Union (cjeu). In its recent case-law, the cjeu held that the right to property “must be viewed in relation to its social function. Consequently, its exercise may be restricted, provided that those restrictions in fact correspond to objectives of general interest and do not constitute, in rela-tion to the aim pursued, disproportionate and intolerable interference, impair-ing the very substance of the right guaranteed”. The cjeu held that: “protection of the environment is one of those objectives (of general interest) and is there-fore capable of justifying a restriction on the use of the right to property”.17

This case-law is not to be treated as an exception. Also the European Court of Human Rights adopted a similar, nuanced approach. For instance, in 2007 it explicitly underlined that “(f)inancial imperatives and even certain funda-mental rights, such as ownership, should not be afforded priority over environ-mental protection considerations”.18

16 For instance, French planning law does not require the financial compensation of public easements (article L. 105–1 of the Planning Code).

17 cjeu, 15th January 2013, Jozef Krizan, C-416/10, §§ 113–114; Revue juridique de l’environnement, 2013, pp. 374–376, comment Julien Bétaille.

18 echr, 27th November. 2007, Hamer v. Belgium, n° 21861/03, § 79; see Jean-Pierre Margué-naud, “La petite maison dans la forêt”, Recueil Dalloz, 2008, pp. 884–887.


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Recently, the French Constitutional Court has expressed its view on the in-terplay between the prohibition of plastic use and the freedom to conduct a business, which is also reasserted as a fundamental right at the constitutional level. In this regard, the French Constitutional Court stated that limitation on the latter freedom can be justified whenever they are grounded upon consid-erations related to the public interest and those limitations are proportionate. Concerning the plastic prohibition, the Court ruled that it was not a propor-tionate measure in order to comply with the public interest relating to envi-ronmental protection.19 This represents but one example of a wider trend. In addition, it is to be recalled that the “abuse of right” theory can be used to limit the undue use of property rights at the expense of environmental protection.20

Lastly, against the backdrop of the global climate change, at least some legislators are now pondering quite far. Take for instance the new legislation that has been promulgated regarding the exploitation of natural resources in France, such as the act prohibiting the exploration and exploitation of liquid or gaseous hydrocarbon mines by hydraulic fracturing of 201121 and the act ter-minating research and exploitation of hydrocarbons of 2017.22 Several decades ago, the enactment of such prohibitive pieces of legislation were unthinkable, especially in the context of environmental protection. Of course, that is not to say that such acts do not contain certain flaws or shortcomings. For example, in October 2018, the company “Total” was granted an extension of its explora-tion permits in French Guyana. Since the new law lacked retroactive effect, the granting of the permits could not be blocked with reference to the new legisla-tion. Be that as it may, the latter example clearly illustrates that it is perfect to limit property rights for the benefit of nature conservation without endowing specific rights upon nature. Even more so, the fact that Ecuador has granted

19 cc, 25th October 2018, n° 2018–771 dc, Loi pour l’équilibre des relations commerciales dans le secteur agricole et alimentaire et une alimentation saine, durable et accessible à tous, §§ 13–19.

20 Gonzalo Sozzo, “El giro ecológico del abuso de derecho”, RDAmb 51, 15/09/2017, 1, ap/doc/628/2017; Michael Byers, “Abuse of Rights: An Old Principle, A New Age”, 47 Mc-Gill L.J. (2001–2002), pp. 389–431.

21 Loi n° 2011–835 du 13 juillet 2011 visant à interdire l’exploration et l’exploitation des mines d’hydrocarbures liquides ou gazeux par fracturation hydraulique et à abroger les permis exclusifs de recherches comportant des projets ayant recours à cette technique. See Chris-tel Cournil. “Adoption of legislation on shale gas in France: Hesitation and/or progress”, European Energy and Environmental Law Review, Kluwer Law International, 2013, 22 (4), pp. 141–151.

22 Loi n° 2017–1839 du 30 décembre 2017 mettant fin à la recherche ainsi qu’à l’exploitation des hydrocarbures et portant diverses dispositions relatives à l’énergie et à l’environnement.




a license to exploit oil in the Yasuni national park, can be treated as a clear indication of the limited potential of RoN. Even when RoN are explicitly rec-ognized at the level of the constitution, public authorities still enjoy a certain discretion, enabling them to balance economic rights with the conservation of nature. In other words, the principle of “permanent sovereignty over natural resources”, especially within the context of national economic policies, is to be treated as a major cornerstone of the legislative framework in many jurisdic-tions. Granting legal personhood to nature can of course help in recalibrating the equilibrium between economic exploitation and environmental protec-tion. Yet, as demonstrated above, it is perhaps not to be framed as a prerequi-site for that seeing that environmental progress is also possible in jurisdictions which lack such explicit recognition of RoN. And, as aptly demonstrated, even the more recent interpretations to be given to the right of property, leave am-ple room for more progress in this regard. It is much more a matter of political will and progressive evolution of case-law than rethinking the role of nature as subject or object of law.

2.3 Environmental Law Protects the Intrinsic Value of NatureAs posited above, the advocates of RoN put forward that the latter is more capable of protecting the intrinsic quality of nature. But before tackling this question, it is important to underline the fault line between RoN and envi-ronmental protection. For, one can perfectly preserve the inherent quality of nature without having to resort to the implementation of RoN in the existing statutory framework. In this respect, reference is to be made to the following assertion of Mary Warnock: “the question of whether it would make sense to allow claims for standing on behalf of animals or trees should not be confused with another question, namely, whether such individual animals or species of animal (or trees or insects, or species of these kinds) have intrinsic value. It is possible to acknowledge such value by protective legislation, without the pro-vision to them of standing as plaintiffs in their own right”.23

Even if we accept that modern environmental law can be perceived as be-ing excessively anthropocentric, this does not imply that it is negating the in-trinsic quality of nature.24 The recent emergence of concepts like “ecological

23 Mary Warnock, “Should trees have standing?”, Journal of Human Rights and the Environ-ment, Vol. 3 Spécial Issue, 2012, p. 59.

24 See Gilles Martin, “L’arbre peut-il être une victime ?”, in Clément, M., Martin, G., Timmer-mans, Ch., (2018), Le livre blanc “Le droit prend-il vraiment en compte l’environnement ?”, Recueil de conférences du Collège Supérieur Lyon dans le cadre du cycle Droit et envi-ronnement, Le Collège Supérieur Lyon (www.collegesuperieur.com), novembre 2018.


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services”, which are progressively transposed into positive law25 and which can be seen as tool of the anthropocentric approach, must not obfuscate the fact that the goal of classic nature conservation laws is not utilitarian.

For instance, the protection schemes enacted for many protected species are not grounded upon economic premises. The majority of the species that are protected under eu nature conservation law have no immediate and direct interest for mankind. Many of the protection schemes have been the result of yearlong campaigning by ngos aimed at preventing the imminent extinc-tion of certain species. The lack of human self-interest is present when we take into account the definition given to certain protection schemes in French nature conservation law. Accordingly, a national park is to be created when ecosystems are of “special interest” and if it is important to protect them from degradation.26 A natural reserve is to be created to ensure the conservation of elements of the natural environment “of national interest”.27 A species, a natural habitat or a geological site is protected when such protection is justi-fied by “a particular scientific interest” or by its “essential role in the ecosystem” or when the “conservation of the natural heritage” requires such protection.28 When we take into account French nature conservation law, it is thus obvious that nature or ecosystems are not merely protected because of anthropocen-tric reasons. Several parts of nature are protected because scientific research deems it to be important in light of the further protection of the ecosystems present within France. Even more so, the protection duties included in mod-ern nature conservation law are also not confined to symbolic species such as lions, elephants, primates, bears and wolfs. Also “ugly” and “useless” species, without any cultural or economic value for humans, are protected. Moreover, in the European Union, it is the “ecological integrity” of Natura 2000 sites which is protected by the Habitats directive,29 without considering its imme-diate usefulness for humans.

25 However, even if the transposition of this concept into positive law gives questionable results, it is undeniable that the progresses made by scientific ecology have been crucial to convince of the interest to protect Nature.

26 Article L. 331–1 of the environmental code.27 Article L. 332–2 of the environmental code.28 Article L. 411–1 of the environmental code.29 For example, about the Bialowieza forest, see cjeu, 18 April 2018, European Commission v.

Poland, C-441/17 ; Julien Bétaille, “L’efficacité du référé européen et le principe de précau-tion au secours de la forêt de Bialowieza – Commentaire sur cjue, ord. référé, 27 juillet 2017 et ord. référé, grande chambre, 20 novembre 2017, Commission européenne c. Répub-lique de Pologne, C-441/17 R”, Droit de l’environnement, n° 263, 2018, pp. 14–22.




It is also essential to understand that, as stated by Marianne Moliner-Dubost, “the intrinsic value cannot be extrinsic to human consciousness; it is necessarily the product of human assessment even if it leads to non- instrumental valuation”.30 In other words, the intrinsic value is necessarily assessed by humans. This is inevitable. And such human assessment is exactly what is happening in France when a scientific official body decides to put a new species on the list of protected species.

Environmental law also uses other means or tools which indirectly protect the intrinsic value of nature. For instance, criminal environmental law pun-ishes environmental offenses irrespective of the direct consequences of such offenses on humans.31 Again, here the environment itself is protected. How-ever, the most interesting example to demonstrate that modern environmental law is adequate to protect the intrinsic value of Nature without recognizing RoN is the recognition of the “pure ecological harm” in French tort law, which is addressed further below.

2.4 Pure Ecological Harm is Compensated Under Modern Environmental Law

Providing redress for pure ecological harm – i.e. harm to nature which can-not be equated with harm to property or moral damages– has been one of the main drivers for granting rights to nature. However, contrary to what some authors assume, granting legal personhood to nature is not the only pathway to seek for better redress of pure ecological harm. To be more precise, it was eu Directive 2004/35 on environmental liability which represented the first, cautious step towards a more comprehensive scheme of redress in the context of ecological harm.32 In France, some important additional steps were taken in this regard. With its landmarking ruling in the Erika case of 2010, the French Cour de cassation formally accepted that redress was possible for pure ecologi-cal damage.33 Most importantly, though, the 2016 Act on biodiversity modified

30 Marianne Moliner-Dubost, Droit de l’environnement, Cours, Dalloz, 2015, p. 52. The quote in French is the following: “la valeur intrinsèque ne peut pas être extrinsèque à la con-science humaine ; elle est nécessairement le produit d”une évaluation humaine même si elle aboutit à une valorisation non instrumentale”.

31 See for instance article L. 415–3 of the environmental code.32 The International Court of Justice recently recognized the ecological damage (icj, 2nd

February 2018, Costa Rica v. Nicaragua, n° 150; see Yann Kerbrat et Sandrine Maljean- Dubois, “La reconnaissance du préjudice écologique par la Cour internationale de justice”, Droit de l’environnement, n° 266, 2018, pp. 90–91.

33 See Cass., crim., 25 septembre 2012, n° 10–82.938; Environnement, 2012, n° 12, pp. 13–21, note Marie-Pierre Camproux-Duffrène.


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the French civil code and provided an explicit legal regime on the compensa-tion of ecological damages.34 In this context, “ecological harm” is defined as a damage to “ecosystems elements or functions”35 and is distinguished from economic and moral damages. It is a damage to nature itself, to its intrinsic value, which closely resembles the idea Christopher Stone pitched in 1972 in his landmark article. Again, it needs to be recalled that these new redress options have been implemented into French legislation without there being an explicit need to explicitly grant legal personhood to nature. And whereas their application on the ground still leaves a lot to be desired, the explicit re-assertion of “pure” ecological harm in tort law is to be singled out as a major achievement of modern environmental law, at least within the French context.

2.5 Broad Access to Justice Becomes the Norm, Not the ExceptionThe increasingly broader access to justice in environmental cases is equally to be cited as an additional example of how RoN is not a necessary precondition to take further important steps in the protection of the environment. In this regard, it is to be recalled that the lack of access to justice in environmental cases was the main argument for Christopher Stone in his plea to grant legal personhood to nature.

At the time, Christopher Stones stance appeared reasonable. Judicial ac-tions to defend the environment were quite rare and legal systems were not yet adapted to this. As a consequence, advocating to grant rights to nature was to be approached as the next logical step in this sequence.

The point is that, in retrospect, Stone’s proposal was not followed. The shift to RoN in the legislative framework is only of recent date. Yet, this does not entail that the issue of standing has remained unaddressed since the 1970s. Instead of contemplating the bold move to grant legal personhood to nature, many jurisdictions opted for a more hands-down approach, which consisted in liberalizing the standing requirements in environmental cases. For example, in France, the act on Nature conservation of 1976 created an accreditation sys-tem for environmental ngos, which granted them the right to challenge ad-ministrative decisions, such as environmental permits for industrial activities, and to initiate civil and criminal actions against polluters.36 In turn, the 1990s

34 Simon Taylor, Extending the Frontiers of Tort Law: Liability for Ecological Harm in the French Civil Code, jetl 2018; 9(1): 81–103.

35 Article 1246 of the civil code.36 About the accreditation system, see Michel Prieur, Julien Bétaille, Marie-Anne Cohendet,

Hubert Delzangles, Jessica Makowiak & Pascale Steichen, Droit de l’environnement, 7e éd., Précis, Dalloz, 2016, n° 146 et seq.




saw the emergence of Principle 10 of the Rio Declaration, which provided that “effective access to judicial and administrative proceedings, including redress and remedy, shall be provided”. The famous Belgian legal philosopher François Ost welcomed the focus on granting broader standing in environmental cases in 1995, holding that:

“(r)ather, (…), than endowing explicit rights to nature, which allow it to play a more prominent role before courts (…), is it not appropriate to finally grant a more robust and encompassing right of access to justice to ngos that defend Nature?”.37

Principle 10 was further implemented through the Aarhus convention, which was signed in 1998 and provided a very broad access to justice, particularly under article 9, paragraph 3:

“Each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to admin-istrative or judicial procedures to challenge acts and omissions by pri-vate persons and public authorities which contravene provisions of its national law relating to the environment”.

Whereas also the other provisions of Article 9 are imperative in the quest for more accountability in environmental cases, Article 9, paragraph 3 has garnered much attention lately. To be more precise, this article is broadly interpreted by international bodies and courts, such as the Aarhus convention compliance committee38 as well as the cjeu. For example, even if Member States are free to apply additional criteria to delineate standing in environmental cases, it must lead, in practice, to a broader access to justice in environmental cases.

37 François Ost, La nature hors la loi – L’écologie à l’épreuve du droit, 1995, rééd., La Décou-verte, 2003, p. 204. In French: “Plutôt, (…), que d’affubler la nature des oripeaux du sujet de droit et de lui confier un rôle d’emprunt sur la scène judiciaire (…), ne convient-il pas plutôt d’accorder enfin un réel droit d’action en justice aux associations qui la défen-dent ?”. See as well François Ost, “Personnaliser la nature, pour elle-même, vraiment ?”, in Philippe Descola (dir.), Les Natures en question, Collège de France, Odile Jacob, 2018, pp. 205–226.

38 See for example the decisions of the Committee concerning access to the action for an-nulment before the European Union Court of Justice (14th April 2011 and 17th March 2017, case n° accc/C/2008/32 ; Julien Bétaille, “Accès à la justice de l’Union européenne, le Comité d’examen du respect des dispositions de la Convention d’Aarhus s’immisce dans le dialogue des juges européens”, Revue juridique de l’environnement, 2011, pp. 547–562).


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In other words, in spite of the discretion granted to the State Parties, it is now clear that new standing rules that go against the Aarhus Convention’s objec-tive of broad access in environmental cases will probably not survive judi-cial scrutiny. This rationale helps to explain why Germany’s rather restrictive standing rules in environmental cases were finally not upheld by the cjeu.39 In several cases concerning the United Kingdom, the cjeu also underlined that the costs linked to legal procedures in environmental cases cannot be too prohibitive.40

One might portend that the underlying rationale of the Aarhus Convention assumes that the increased environmental awareness will prompt more ngos and citizens to defend the environment before court. In doing so, both ngos and individual citizens increasingly act as guardians of nature. Thus, there would not exist urgency to grant explicit standing to nature itself. The growing body of case-law, especially within the eu, showcases that national judges are found increasingly prepared to halt unsustainable projects capable of jeopar-dizing nature at the request of environmental ngos.41

The latter findings might explain why the Aarhus rationale has been ex-ported to Latin America and the Caribbean. Indeed, just last year the so-called “Escazu agreement” was signed, which is mirroring the Aarhus Convention at many points. This regional treaty on Access to Information, Public Participa-tion and Justice in Environmental Matters was adopted on the 4th of March 2018 in Escazu, Costa Rica. It applies the principle 10 of the Rio Declaration at the regional level. Article 8 of the agreement notably provides that “each Party shall guarantee the right of access to justice in environmental matters in ac-cordance with the guarantees of due process”.

In spite of the remaining – and often very important – implementation is-sues in the eu regarding access to justice in environmental cases, the French

39 cjeu, 12th May 2012, Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen, C-115/09, Revue juridique de l’environnement, 2011, p. 653, chron. Julien Bétaille.

40 cjeu, 11th April 2013, David Edwards & Lilian Pallikaropoulos, C-260/11, Journal européen des droits de l’homme, n° 4, 2013, p. 696, chron. Julien Bétaille ; cjeu, 13th February 2014, European Commission v. United Kingdom, C-530/11, Journal européen des droits de l’homme, n° 4, 2014, p. 558, chron. Julien Bétaille.

41 An author would prefer to replace such rationale by RoN (see Tamlyn Jayatilaka, Rights of Nature: The Right Approach to Environmental Standing in the eu?, llm Paper, Ghent Uni-versity, 2017). Such proposal is focused on the issue of access to justice before the cjeu, which indeed remains a problem. However, the progresses that have been made for 10 years in this area surely has to be taken into account, mainly thanks to the actions driven by the ngo ClientEarth.




experiences are instructive once again. They indirectly attest that liberalizing standing in environmental cases is a suitable alternative for granting explicit standing to nature itself. Since environmental ngos were given legal stand-ing, nature can now be – at least indirectly – represented before courts. When environmental ngos go to court in order to defend their statutory objectives – which is to protect the environment – they implicitly also represent nature. In other words, they are to be approached as the equivalent of the Stone’s guard-ians.42 Nature now has a voice before judges through the myriad of environ-mental ngos that have been created in many countries.43

Whereas also individuals might take up the role of “guardian” against the backdrop of the Aarhus rationale, arguably environmental ngos can be more effective in this regard. In order to do so, French ngos can get an “accredi-tation” when several criteria are fulfilled.44 The main one is to have been in business for at least three years. Indeed, article L. 142–1 al. 2 of the French En-vironmental code even includes a presumption of standing in favour of the ngos that have fulfilled the requirements mentioned above. Such ngo is pre-sumed to have standing to challenge administrative decisions entailing a di-rect violation of its statutory objectives and producing harmful effects on the environment.45

The repercussions of such liberalized standing for the environment can be far-reaching. For example, it is possible to imagine an unsustainable project de-velopment capable of producing adverse effects on the natural environment, on a location where no individual can claim locus standi (because nobody lives close enough to this area to be affected by the adverse effects linked to the project). In such a scenario, an accredited ngo whose territorial scope covers the contested site can still claim standing. For, since the effects of this deci-sion might be prone to affect the statutory object of the ngo at issue, which is aimed at the protection of the natural environment in the said geographical area, the ngo is permitted to claim standing in such cases. This limited French

42 RoN supporters sometimes pretend that the way Nature is currently represented before the courts is not good because its representation is made through humans’ interests (on this issue, see Lucille Boisseau Sowinski, “La représentation des individus d”une espèce animale devant le juge français”, VertigO, Hors série 22, septembre 2015). However, it is exactly the same problem with the Christopher Stone’s “guardians”: it remains humans (natural or legal person) representing Nature.

43 See Gérard Monédiaire, “Sur la nature du droit de la nature”, Caesura, Canoas, n° 4, 1994, p. 65.

44 See L. 141–1 et seq. of the environmental code.45 ce, 8 février 1999, Fédération des associations de protection de l’environnement et de la

nature des côtes d”Armor, rec., p. 20.


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case-study underscores that the underrepresentation of nature in court can be cured without necessarily having to take recourse to a fundamental paradigm shift, such as RoN.46

Whereas the above-presented examples all relate to administrative deci-sions, the relevance of Article 9, paragraph 3, of the Aarhus Convention is not confined to such instances. Access to civil and criminal courts can also be lib-eralized with reference to Article 9, paragraph 3, of the Aarhus Convention. Again the French example might be instructive. Concerning access to the civil judge in France, the plaintiff is required to demonstrate a “legitimate inter-est” and a “direct damage”.47 However, when the plaintiff is an environmental ngo this does not represent an insurmountable hurdle since an ngo merely needs to substantiate that the alleged acts compromise its statutory objectives. This is rather obvious in the case of unlawful pollution or habitat destruction. Concerning access to criminal proceedings in France, there are not any spe-cific standing conditions to be observed when submitting complaints. Finally, if during a criminal trial, an ngo wants to claim financial compensations, it will benefit from the standing presumption provided by article L. 142–2 of the environmental code.

Therefore, in France, at least for accredited environmental ngos, access to justice in environmental matters is quite broad.48 Against this backdrop, one might again submit that there is no reason to grant explicit rights to nature in France since nature can already be represented in court. Of course, this does not imply that access to justice in environmental cases has now become a “walk in the park” in countries, such as France. However, the prevailing issues

46 It is also important to notice that RoN does not represent an absolute guarantee to claim standing in environmental cases (see Mary Elizabeth Whittemore, « The Problem of Enforcing Nature’s Rights under Ecuador’s Constitution: Why the 2008 Environmental Amendments Have No Bite », Pacific Rim Law & Policy Journal, Vol. 20, n° 3, 2011, p. 667). Moreover, access to justice is apparently broader in Costa Rica than in Ecuador, whereas the latter has not explicitly recognized RoN in its internal legislation (Edgar Fernandez Fernandez, “Les controverses autour de l’intérêt à agir pour l’accès au juge constitutionnel: de la défense du droit à l’environnement (Costa Rica) à la défense des droits de la nature (Équateur)”, VertigO, Hors série 22, septembre 2015).

47 Article L. 1240 of the civil code and article 31 of the Civil procedure code.48 See Julien Bétaille (Ed.), Le droit d”accès à la justice en matière d”environnement, Presses de

l’ifr de l’Université Toulouse 1 Capitole, lgdj, 2016 ; Jessica Makowiak, “Study on factual aspects of access to justice in relation to eu environmental law”, in Jan Darpö, Effective Justice? Study on the Implementation of Articles 9.3 and 9.4 of the Aarhus Convention in the Member States of the European Union, 2013-10-11/Final (available at: http://ec.europa.eu/environment/aarhus/access_studies.htm).




no longer primarily relate to restrictive standing requirements. In contrast, precisely the lack of adequate funding hinders a more comprehensive enforce-ment of the existing environmental rules. In addition, often legal certainty still prevails in environmental procedures at the expense of compliance.49 While there is still much improvement to be made in this domain, standing in envi-ronmental cases has significantly improved, which renders the explicit recog-nition of RoN not necessary.50 Even more so, the French lawyers which use the above-presented tools have already voiced scepticism as to the added value of RoN for nature protection on the ground. The myth that RoN will lead to an ecological utopia does not appear to have many supporters amongst lawyers that are dealing with the practical side of environmental law. For instance, Ray-mond Leost, the head of the France Nature Environnement law group, i.e. the main environmental ngo in France,51 expressed reserves as to the relevance of RoN during a conference in December 2018.52

2.6 The Burden of Proof is No Longer an Insurmountable HurdleAnother of Christopher Stone’s key-arguments is that the implementation of RoN could lead to a more flexible approach toward the burden of proof in en-vironmental cases. According to Christopher Stone, judges would be inclined to interpret rules such as those of burden of proof far more liberally from the point of the environment in a system where RoN are explicitly recognised.53

It would be interesting to investigate whether this assumption has been reaffirmed in countries where RoN have already been explicitly recognised.

49 See Julien Bétaille, “Les limites européennes à la subjectivisation du contentieux de l’urbanisme”, Bulletin juridique des collectivités locales, 2018, pp. 728–733.

50 See for example Julien Bétaille & Antoine Gatet, Legal Analysis of the Main Sources of Interpretation of the Access to Justice Rights in France, Research project “Access to Justice for a Greener Europe” (atoj earl) driven by ClientEarth, July 2018. It must be noticed that some academics are in favour of RoN, such as Marie-Angèle Hermitte. For her, the key argument in favour of RoN arises from the equality of arms principle (Marie-Angèle Hermitte, “La nature, sujet de droit ?”, Annales hss, 2011, n° 1, p. 212). Thus, it would be necessary to grant Nature legal personality, for Nature to be able to defend itself in courts against polluters. However, as mentioned above, I have a different view, since nature is already indirectly represented in court.

51 Every year, France Nature Environnement brings hundreds of cases before the courts.52 This conference was held at the University of Limoges (France). The papers of the con-

ference will be published in the Revue juridique de l’environnement, the main academic journal dedicated to Environmental Law in France.

53 Christopher D. Stone, “Should trees have standing? Towards legal rights for natural objects”, 45 South California Law Review 450 (1972), p. 488.


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For now, such proof is lacking. However, at the same time it is important to take into account the recent shift in the application of the burden of proof in environmental cases. While, admittedly, the burden of proof remains a sub-stantial hurdle in many environmental cases, which are often characterized by evidence-related challenges linked to establishing a causal nexus, recent case-law developments again reveal a more favorable approach to the burden of proof in recent years. For example, based on the polluter pays principle, the cjeu held that Member-States have the possibility to ease up the burden of proof in case of pollution.54 Granting rights to nature will, in my view, not sub-stantially alter this debate. In essence, applying the burden of proof remains a prerogative of national judges and, additionally, can also be reversed through reliance on the precautionary principle.

As a preliminary conclusion, it can be upheld that, when taking into account the recent progressive evolution of environmental law, many of the failings that were at the root of the RoN have already been addressed. Many environ-mental law already protect the intrinsic value of nature, while it is even pos-sible to claim damages for “pure” environmental damage. In a similar vein, a steady evolution towards broader access to justice in environmental cases is noticeable. In other words, the dichotomy between RoN and modern environ-mental law is partly artificial. Or, differently put, one cannot simply stifle the debate by stating that modern environmental is inherently incapable of attain-ing environmental enhancement.55

3 Rights of Nature is Not a Legal Revolution

Another main assumption of the RoN’s theory that it is to be approached as a paradigm shift, placing nature of the first time in the center of the legisla-tive framework. In my view, qualifying RoNs as a “legal revolution” is to be approached as the figment of the growing enthusiasm that is aroused by the novelty of the RoN’s recognition in several countries. However, at this stage, it is important to realize that, even if RoN may constitute a philosophical para-digm shift, it cannot necessarily be equated to a revolution on the legal ground.

54 cjeu, 9th March 2010, Raffinerie Mediterranee (erg) SpA, C-378/08; Revue juridique de l’environnement, 2010, p. 503, comment Pascale Steichen.

55 Following a ius-naturalist approach, which is not mine in this article, it would be possible to conclude that RoN already exists in the context of modern environmental law, even if RoN are not explicitly recognized, because positive law already implements it by protect-ing the intrinsic value of Nature.




Indeed, even if RoN actively promotes a more ecocentric approach to na-ture, it remains a legal instrument which cannot operate without humans. This constitutes RoN’s main limit, since it renders it vulnerable for the same risk factors as modern environmental law (3.1). Moreover, RoN entails an active obligation from humans to the environment and therefore cannot be distin-guished from more anthropocentrically phrased rights, such as the human right to a healthy environment (3.2). There is nothing revolutionary in this.

3.1 The Ultimate Paradox: RoN Cannot Operate without HumansThe RoN’s theory implies that in order to protect nature’s intrinsic value, it is necessary to grant legal personality to Nature in order to avoid that its interests would permanently be overridden by human interests. According to the RoN’s maxim, nature should be able to defend its own interests, which are different from humans’ interests. And thus it would be more sensible to directly grant le-gal personhood to nature instead of opening new avenues to allow an indirect representation of nature before court, before through environmental ngos.56

Yet this gives rise to the well-know aporia linked to RoN. For, as long as Law is an instrument produced by Humans (which is not challenged, even not by RoN advocates), any attempt to protect nature by using legal instrument nec-essarily goes through human interaction. That’s why RoNs needs humans – in the role of “guardians” – just as modern environmental law cannot properly function without human interventions. To be sure, this aporia has been identi-fied a long time ago by other authors, who held that:

“since all of law is a human construct, it follows that we can identify any matter of concern and legislate about it, if we want to. Whether or not non-humans have rights, only humans can be actors in the legal system”.57

Moreover, seeing that RoN cannot properly function without human interven-tion, it ultimately runs the same risk as modern environmental law, namely to give precedence to anthropocentric viewpoints. For example, regardless of the fact whether legal personhood has been granted to elusive species, such as Brown Bears, these animals will always be dependent on humans to go to courts. Either an independent guardian, appointed by the law, might assume

56 About the representation of Nature before judges, see Marie-Pierre Camproux & Jochen Sohnle (ed.), La représentation de la nature devant le juge : approches comparatives et pro-spectives, VertigO, 2015.

57 P.S. Elder, “Legal Rights for Nature: the Wrong Answer to the Right(s) Question”, Osgoode Hall Law Journal, vol. 22, n° 2, 1984, p. 291.


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this task, or, as is often the case today, environmental ngos might represent the rights of Brown bears indirectly before court. Bears have no choice: also within the context of RoN the anthropocentric approach ultimately prevails. And thus the fault line between RoN and modern environmental law is not that sharp as is often depicted in the legal discourse. Serge Gutwirth describes such issue as follows:

“granting rights to non-human entities may degenerate to an even big-ger anthropocentrism. Indeed, only humans are able to translate nature’s “interests” into the legal language”.58

This finding cannot be denounced. For example, article 71 of the Ecuadorian Constitution provides that: “all persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature”. For sure, this provi-sion might be qualified as an actio popularis, which might be beneficial for the enforcement of the existing provisions of nature conservation law. Yet it is far from being legally revolutionary. Some countries, such as New Zealand, have adopted similar legislation when granting rights to nature.59 Under the provi-sions of the recently adopted legislation regarding legal personhood for na-ture, humans are still appointed as guardians. In fact, this is not some different from the provisions under eu environmental law. Within the European Union, there are comparable provisions, for instance in the context of eu water law, which stipulate that legal persons are in charge of managing watersheds and river systems in a sustainable manner.60

Against this backdrop, one should be more cautious before speaking about a legal “revolution” when discussing RoN. As Dinah Shelton held:

“Environmentalists may be concerned that inevitably the legal person-hood of nature will have to be defended by humans. If these humans are appointed by the government, environmental concerns may not always

58 Serge Gutwirth, “Culture contre Nature”, in Des droits pour la nature, Editions Utopia, 2016, p. 41.

59 About the development of the rights of rivers, see Victor David, “La nouvelle vague des droits de la nature. La personnalité juridique reconnue aux fleuves Whanganui, Gange et Yamuna”, Revue juridique de l’environnement, 2017, pp. 409–424.

60 In France, two specific kinds of legal persons are in charge of managing the watersheds: the “Agences de l’eau” and the “Etablissements publics territoriaux de bassin” (see Michel Prieur, Julien Bétaille, Marie-Anne Cohendet, Hubert Delzangles, Jessica Makowiak & Pascale Steichen, Droit de l’environnement, 7e éd., Précis, Dalloz, 2016, n° 433–437; Bernard Drobenko, Introduction au droit de l’eau, Editions Johanet, 2014, p. 80 et seq.).




be paramount. Any guardians will have responsibility for developing a management plan and deciding on what particular activities should be permitted. In theory, environmental agencies already undertake these re-sponsibilities in respect to public lands and protected areas”.61

However, the critique goes deeper. One might even submit that the substan-tive norms put forward by RoN do not differ substantially from the protection schemes set out by modern environmental law.

3.2 Not so Different in Terms of Substance: RoN Remains a Human Obligation Towards Nature

In my view, RoN are not fundamentally different from the protection duties present in the existing environmental laws. This is based on the basic idea which assumes that rights and obligations are two sides of the same coin. Of course, the latter might be seen as an oversimplification of the legal debate concerning RoN. Even so, I still believe that it is relevant to frame the debate in these terms. To put it simply, one might qualify a legal right as a permission to do something or not. Accordingly, an obligation is an injunction for someone to do something.62 In other words, a permission necessarily implies an obliga-tion and, conversely, an obligation implies a permission. If X has the right to do A, Y must abstain from impeding the enjoyment of X’s right. Therefore, Y has the obligation to do something or to abstain for X to enjoy its right. Also, if Y has an obligation regarding A, for example to protect it, it means that X has the permission to enjoy A.

What if one would apply this rationale to nature? If there exists a right to healthy environment, it entails - at least in theory - that the environment must be protected by everyone. Thus, everybody has the obligation to protect the environment. Yet what about RoN? If nature enjoys the right to be respected and/or restored, as is often put forward in recent legislation concerning RoN,

61 Dinah Shelton, “Nature as a legal person”, VertigO, Hors série 22, septembre 2015, n° 47.62 This equivalence is clearly exposed by Hans Kelsen in his General Theory of Norms: “If

someone has a duty to another person to behave in a certain way, we say that the other person has a right to this behaviour. (…). The right of one person is the duty of the other seen from the perspective of the person to whom the duty is owed. (…). The right of one person is the duty of the other seen from the perspective of the person to whom the duty is owed. That is why we call it [in German] a right in the subjective sense of the word. (…) “Entitlement” in all senses of the word presupposes the imposition of duties, i.e. com-manding” (Hans Kelsen, General Theory of Norms, 1979, translated by Michael Hartney, Clarendon Press, Oxford, 1991, p. 136–137).


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it implies that all persons have the obligation to protect nature.63 As a conse-quence, one might submit that both modern environmental law as well as RoN are giving way to the same substantive norm, namely the obligation to protect the environment.

This remarkable similarity is conformed in recent case-law. Indeed, in Ecuador, courts tend to “use(…) the environmental right and the right of nature interchangeably without any clear distinction as to their respective application”.64

It is obvious that objective norms are not just about humans. Non-humans can be beneficiaries of the obligation too, as is the cases with nature conserva-tion law. Yet, ultimately, only natural and legal persons are bound to comply with such obligation. This is what Hans Kelsen recalled in its Pure Theory of Law when stating that:

“Although modern legal orders regulate only the behavior of men, not of animals, plants, and things, it is not excluded that these orders prescribe the behavior of man toward animals, plants, and things. For example, the killing of certain animals (in general or at specific times), the damaging of rare plants or historically valuable buildings may be prohibited. But these legal norms do not regulate the behavior of the protected animals, plants, and things, but of the men against whom the threat of punish-ment is directed”.65

Ultimately, this is what modern environmental law does. It uses objective norms to oblige all persons to respect the environment, including nature.

In the end, RoN approaches cannot do more than that. The rights granted to nature are grounded upon the same substantive underpinnings as the pro-tection schemes present within modern environmental law. Hence, granting rights to nature is not to be dubbed a “legal revolution”. Even in the absence of RoN, it is possible to contend that nature enjoys already certain rights, i.e.

63 It is also admitted by David Boyd when he states that “Rights of Nature impose responsi-bilities on humans to modify our behavior” (David R. Boyd, The Rights of Nature: A Legal Revolution That Could Save the World, op. cit., p. 230).

64 Louis J. Kotzé and Paola Villavicencio Calzadilla, “Somewhere between Rhetoric and Real-ity: Environmental Constitutionalism and the Rights of Nature in Ecuador”, Transnational Environmental Law, 6:3 (2017), p. 428.

65 Hans Kelsen, Pure Theory of Law, 2nd ed., 1960, transl. By Max Knight, The Lawbook Ex-change, Ltd. Clark, New Jersey, 2005, p. 32.




the corollary of the protection duties set forth by the existing environmental statutes.

Along those lines, one might submit that focusing much energy on RoN would yield only limited results on the ground. The ensuing discussion about the best theoretical approach to be used when enacting environmental norms, is obfuscating the main challenge, i.e. a better enforcement of the existing en-vironmental statutes. The seminal question to be addressed in this regard is akin to the one pondered by Christopher Stone in 1972: are humans willing to restraint their appetite for environmental destruction and to what extent can the law be used to enforce the protection duties towards nature?

4 Rights of Nature Might Not Keep Its Promises Regarding Saving the World

The third and ultimate assumption upon which RoN is based, is that it might be a more effective tool to enhance environmental protection in the ground. It is a relatively easy premise to kickstart a plea in favour of RoN. For example, without any more arguments, an author claims that “if animals and plants were legal persons, it would be much more difficult to kill or destroy them: they would have subjective rights then, which could be enforced in court”.66 An-other author claims that: “by granting rights to Nature, it is easier to improve nature conservation”.67 According to David Boyd, “rights of nature movement has the potential to create a world where people live in genuine harmony with nature”.68 Their argumentation is principally based on the idea that modern environmental law is not effective and thus a new paradigm is necessary in order to bolster environmental protection.69 Some authors even go a step further by contending that “in the Anthropocene, the anthropocentrism of

66 Jens Kersten, “Who Needs Rights of Nature”, in Anna Leah Tabios Hillebrecht María Vale-ria Berros (ed.), Can Nature Have Rights? Legal and Political Insights, rcc Perspectives, Transformations in Environment and Society, 2017 / 6, p. 10.

67 Victor David, “La lente consécration de la nature, sujet de droit. Le monde est-il enfin Stone ?”, Revue juridique de l’environnement, 2012, p. 483. In French : “avec la reconnais-sance de droits à la nature, il devient plus facile de renforcer la protection de la nature”.

68 David R. Boyd, The Rights of Nature: A Legal Revolution That Could Save the World, op. cit., p. 232.

69 David R. Boyd, ibidem, p. xix; Victor David, “La lente consécration de la nature, sujet de droit. Le monde est-il enfin Stone ?”, Revue juridique de l’environnement, 2012, p. 470 ; 485 (the author starts to argue about a particular case, where facility pollution was not sen-tenced before the first instance judge. Then he says that RoN would do better in such a


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environmental law more generally, and rights specifically, is considered to jus-tify and promote ecological ravaging”.70 In my view, this characterization of modern environmental law as a justification for the further destruction of the ecosystems on our planet is misguiding. Whereas the latter statement might be true for “law” in itself, one should at least acknowledge that modern envi-ronmental law precisely aims to limit the “freedom” to destruct nature. One might even go a step further and defend that modern environmental law was one of the first branches of the Law to protect the interest of non-human enti-ties, whereas the bulk of the Law merely deals with humans and the economy. Along these lines, modern environmental Law is to be seen as a part of the so-lution, not the problem. By deliberately targeting modern environmental law, RoN advocates are choosing the wrong target.

First, the idea that modern environmental law is not effective is to be approached as a “truism”. In the face of the ongoing ecological destruction, stating that “environmental law” is not working well enough, amounts to stat-ing the obvious. However, it is not correct to subsequently submit that every single piece of environmental legislation is ineffective. It is therefore wrong to submit that environmental law “as a whole” is not working. On the contrary, if properly enforced, some pieces of environmental law appear very effective in achieving their objectives (4.1). RoN propagators often submit that turn nature into a “subject of law” is the right approach to step up environmental protec-tion on the ground. However, merely focusing on the “objective” of ‘subjective” nature of legal rules might be misguiding. For, in itself, RoN appears to be fac-ing the same challenges as modern environmental law, namely issues relating to compliance, implementation, enforcement and effectiveness (4.2).

4.1 Modern Environmental Law Can Be Relatively EffectiveModern environmental law appears to be powerless in front of the ongoing ecological crisis. Ultimately environmental law is facing a certain paradox. While, on the one hand environmental law, has never been so sophisticated, on the other hand, environmental degradation has never been so all encom-passing. It might be tempting to link the ongoing crisis to the many deficien-cies environmental law has fallen victim to.

case. And finally, at the end of the article, he has to say that the facility was sentenced by the court of appeal, applying classic environmental law).

70 Louis J. Kotzé and Paola Villavicencio Calzadilla, “Somewhere between Rhetoric and Real-ity: Environmental Constitutionalism and the Rights of Nature in Ecuador”, Transnational Environmental Law, 6:3 (2017), p. 403.




However, generally stating that “environmental law” as a whole is ineffective is not persuasive in itself. Below I list two major reasons why this proposition is not as convincing as it might appear on the first sight.

First, reference can be made to the many successes of modern environmen-tal law over the past decades. Next to the well-know example of the Montreal Protocol on substances that deplete the ozone layer of 1987,71 which was effective restoring the ozone layer, reference is to be made to the Natura 2000 Network of protected areas72 and the positive results that have been made in the fight against oil spill, etc. In spite of the ongoing ecological crisis, scientific studies underpin the effectiveness of the Bern convention and of the Birds di-rective in Europe:73 species with the highest level of protection are more likely to increase their population, and this is even more pronounced in States which have been members of the European Union for a long time. Other scientific studies reveal that strict protection schemes were instrumental for carnivore populations’ recent recovery in the eu.74 At a very minimum, the referenced examples demonstrate that environmental law can be effective when properly enforced on the ground.

Second, it is important to remember the so-called “zero-alternative”. In or-der to do so, suffice it to carry out the following thought experiment. What would happen if there was no environmental law at all? In the absence of envi-ronmental legislation, the ecological crisis would be even more serious. When no strict emission standards would be integrated in environmental permits, industrial pollution would have been much more serious throughout the past

71 See Andrew Klekociuk et Paul Krummel, “After 30 years of the Montreal Protocol, the ozone layer is gradually healing”, The Conversation, 17th September 2017.

72 For example, whereas the Natura 2000 network could arguably include even more vulner-able sites, it already 18% of the European Union territory. If the protection regimes are effectively applied, this entails that the ecological integrity in a substantial part of the eu territory is well protected.

73 See Fiona J. Sanderson et al., “Assessing the Performance of eu Nature Legislation in Protecting Target Bird Species in an Era of Climate Change”, Conservation Letters, July 2015, 0(0), 1–9. See as well Elie Gaget, Thomas Galewski, Fréderic Jiguet & Isabelle Le Viol, “Waterbird communities adjust to climate warming according to conservation policy and species protection status”, Biological Conservation, Volume 227, November 2018, pp. 205–212.

74 Adrian Treves, Guillaume Chapron, Jose V. López‐Bao, Chase Shoemaker, Apollonia R. Goeckner & Jeremy T. Bruskotter, “Predators and the public trust”, Biol. Rev. (2017), 92, pp. 248–270; Guillaume Chapron & Adrian Treves, “Blood does not buy goodwill: allowing culling increases poaching of a large carnivore”, 2016, Proc. R. Soc. B 283: 20152939.


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decades. Of course, setting environmental standards through the issuance of permit legalizes pollution, at least up to a certain extent, legalizes a degree of pollution. However, in the absence of such permitting schemes, the environ-ment would be worse off. A similar conclusion arises when it comes to eu na-ture conservation law, which has also been confirmed by the outcome of the refit-analysis of the Habitats and Birds directives.75

And thus, whereas a lot of the existing criticism toward modern environ-mental law is much deserved, one should be cautious not to oversimplify the debate. For one, simply ridding oneself of the whole body of environmental law might not be realistic either. And, here comes the rub, RoN would ulti-mately face the same challenges as modern environmental law.

4.2 Effectiveness, or a Lack Thereof, after All?Whereas it remains relatively easy to posit that modern environmental law is failing to reach its objective, the track-record of RoN is not much better. The first empirical studies regarding the effectiveness of RoN in countries, such as Ecuador and Bolivia, clearly reveal the myriad of limitations to be faced in this respect. For example, some authors have concluded that “Ecuador’s (RoN) amendments are more likely to have an impact if Ecuador implements structural and procedural changes”.76 This should come as no surprise. Simply granting legal personhood to nature will not make a big difference when it is not supplemented with structural changes. For one, even when everybody can act as a guardian when nature’s rights are encroached upon, nature will still disappear if no-one is effectively willing to take manifest violations be-fore court. Even when nature’s rights are explicitly protected in a constitution, other provisions in the same constitution might still prioritize economic de-velopment and lead to ongoing environmental destruction. In fact, most of it is linked to what Herbert Hart named “secondary norms”.77

Whereas primary norms prescribe human beings to perform or abstain from certain behaviors, secondary norms ensure that new primary rules are enforced whenever cases of non-compliance arise. In other words, simply

75 “It is clear that the status and trends of bird species as well as other species and habi-tats protected by the Directives would be significantly worse in their absence” (European Commission, Executive summary of the fitness check of the eu Nature legislation, 16th December 2016; swd(2016) 473 final).

76 Mary Elizabeth Whittemore, “The Problem of Enforcing Nature’s Rights under Ecuador’s Constitution: Why the 2008 Environmental Amendments Have No Bite”, Pacific Rim Law & Policy Journal, Vol. 20, n° 3, 2011, p. 691.

77 See Herbert Lionel Adolphus Hart, Le concept de droit, 1961, (trad. Michel van de Ker-chove), Publications des Facultés Universitaires Saint Louis, 1976, p. 105.




endowing substantive rights upon nature might matter little if not accompa-nied by strict enforcement commitments. Of course, one might admit that whenever RoN are included in the primary norms, this might ultimately also influence the legislator when enacting secondary norms. In other words, im-plementing RoN in primary norms might ultimately also trickle down in the body of secondary norms, which might be more centered on ensuring a better enforcement of the existing rights.

Be that as it may, we always end up with the “effectiveness challenge” when contemplating new environmental norms. Even if all countries would immedi-ately decide to implement RoN into their legislation, there exists no guarantee that the environmental decline would be cured. One might submit that ensur-ing effectiveness has little to do with the legal nature of the obligation towards nature. To put it bluntly: opting for a RoN approach might inflict additional harm the environment if not properly enforced, especially when measured up against modern environmental statutes which are properly applied in the field. It is well-known that both legal and extra-legal factors are to be addressed in order to ensure proper compliance with environmental norms. And thus, if RoN advocates are really serious about “saving the world”, they ought to invest all their time and efforts in finding solutions for the multitude of challenges when it comes to compliance. In this regard, the focus should be on the follow-ing items: coherent legislation, strict sanctions, tackling corruption, impartial-ity of public authorities and judges, administrative inertia, regulators’ capture, access to justice, judges’ interpretation, execution of judicial decisions, etc.78

As a result, it is thus much more sensible to prioritize the environmental Rule of Law as a tool to address the many factors that are impeding a proper implementation and enforcement of the existing environmental norms.

5 Conclusion

The principal aim of this article was to objectively analyze the assumption underlying the shift towards RoN in some jurisdiction. This analysis yielded mixed result. If the ultimate goal is to “save the world”, than I contend that merely focusing on the philosophical underpinnings of modern environmen-tal law might be misguiding. Whereas RoN can surely help to improve envi-ronmental performance, “saving the world” would probably require a broader

78 The identification of those factors was the topic of my doctoral thesis. See Julien Bétaille, Les conditions juridiques de l’effectivité de la norme en droit public interne, illustrations en droit de l’urbanisme et en droit de l’environnement, thèse, droit, Limoges, 2012, 765 pages.


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template. Rather than focusing on the question whether it makes sense to grant legal personhood to nature, one should step up the scrutiny with which the existing environmental norms and regulations are enforced. This might be a less daunting pathway when compared with RoN, yet it would maybe matter more for the survival of many species. Rather than a paradigm shift, more radi-cal and effective legislation is required to face the ecological crisis.

Instead of positing that RoN might lead to a legal revolution, one should pay more lip service to the many benefits linked to the coming of age of modern environmental law. Indeed, “the emergence and development of environmen-tal law represents a shifting conception of the relationship between property and environmental values ultimately removed from the utilitarian framework inherited from the eighteenth-century positivists”.79 Therefore, I conclude that while RoN might bring about some positive changes to the current environ-mental paradigms, modern environmental law is not in need of yet another revolution. In fact, environmental law, as it stands today, is to be hailed as an ecological revolution itself. Even when modern environmental law has a rela-tively young age, it still represents a meaningful route to better environmental protection in the short run. After all, legal revolutions are not always easy to identify. Only in retrospect, one might be able to fully appreciate the revolu-tionary impact of environmental law on the state of the environment on our planet.

Acknowledgement

I would like to thank my colleagues and friends who could consider them-selves as RoN advocates, such as Valéria Berros, Olivier Clerc and Jean-Pierre Marguénaud. Their argumentation helped to improve mine. I would also like to thank Hendrik Schoukens, Sacha Sydoryk and Lilia Meunier-Mili for the proofreading.

79 Sean Coyle et Karren Morrow, The philosophical foundations of environmental law – Prop-erty, Rights and Nature, Hart publishing, Oxford and Portland, Oregon, 2004, p. 107–108.


1

Rights of nature and their implementation

Ludwig Krämer

(Journal for European Environmental Policy & Law 2020, p.47 - 75)

Abstract

This paper passes in review the different pieces of legislation and court judgments which were issued

until now as regards rights of nature, and critically comments on their impact. In a first section, the

legislation, including the constitutional texts of some countries, will be presented. In a second

section, the implementation of the different measures will be discussed, also with a view, whether

the EU could learn from the trend to give natural assets rights of their own. Short concluding remarks

will end the contribution.

Introduction

It seems that more and more, lawyers in Europe come to the conclusion that the present state of the

environment and its slow, but progressive deterioration - from climate change to the loss of

biodiversity, from ocean pollution to excessive waste generation - is less due to the absence of

environmental legislation, but most of all to the poor application and enforcement of the existing

rules of international, EU, national, regional and local law on the protection of the environment.

Rights of Nature have become, these last decades, a new hope for the protection of the

environment1. Legislation or court decisions are not yet so far to give trees systematically standing in

court. However, rivers, lakes, and natural habitats were given the rights of a legal person or even

declared to be such a legal person. In Bolivia and Ecuador, constitutional amendments of the early

21st century declared the earth ("Mother Earth") to enjoy rights. Everybody was entitled to enforce

these rights in court. Also the Colombian constitution provided for far-reaching rights on access to

the courts regarding environmental matters. Environmental protection legislation in Europe - at EU

level, within the Member States and within other countries such as Switzerland, Norway, Iceland -

has not yet followed this path.

The following contribution will examine what legal lessons can be learned from the global legal trend

of giving rights to nature, i.e. the natural environment. In a first section, there will be a short

presentation of the different measures taken in Latin-America, the United States, New Zealand, India.

Bangladesh and Uganda. It is clear, though, that this description cannot cover all countries and all

courts worldwide2. In a second section, it will be examined, if and to what extent these decisions on

rights of nature are actually enforced and applied. Some comparison with legislation, court or

administrative practice in Europe will be made, and whether changes in the present way of

legislating as well as applying and enforcing existing legislation to preserve, protect and improve the

1 For a general overview see David R. Boyd: The rights of nature: a legal revolution that could save the world. Toronto: ECW Press 2017; Susana Borràs: New transitions from human rights to the environment to the rights of nature. Transnational Environmental Law 2016, p.113-143. Julien Bétaille: Rights of nature: why it might not save the entire world? Journal for European Environmental & Planning Law2019, p.35-64. 2 See for a general overview of national legislation and jurisprudence (with references) United Nations, Harmony with nature; harmonywithnatureun.org/rightsOfNature/ (assessed 30-8-2019).

2

protection of the environment should be considered. Some short conclusions will be drawn from this

examination.

Section 1: Establishing rights of nature

New Zealand

Following decades-long discussions with the Maori, the indigenous population of New Zealand about

property rights of the natural environment, New Zealand adopted, in2014, legislation on the Natural

Park Te Urewera3. The legislation withdrew the status of a natural park from the area and declared

Te Urewera to be "a legal entity" which had "all the rights, powers, duties and liabilities of a legal

person"4. The rights, powers and duties of Te Urewera had to be exercised and performed on behalf

of and in the name of the area by a board, in the manner provided for in the Te Urewera Act5. The

Board consisted, after a transition period, of nine members, six appointed by the indigenous

population and three by the New Zealand Government. It had to draw up and implement a

management plan and an annual operation plan, adopt bylaws, report annually to the Government,

issue permits such as for the construction of roads6, and fulfil other management functions7.

Important decisions had to be taken by the Board at unanimity; for majority decisions, two members

appointed by the Government had to agree8.

In 2017, New Zealand ended more than 150 years of controversies with the indigenous population of

the Maori, by adopting another piece of legislation which concerned the Whanganui river9. The Act

(Whanganui River Act) law enshrined the river status in a more general, Maori-derived context and

declared: "Te Awa Tupua is an indivisible and living whole, comprising the Whanganui River from the

mountains to the sea, incorporating all physical and metaphysical elements"10. "Te Awa Tapua is a

legal person and has all the rights, powers, duties, and liabilities of a legal person"11. Article 20

established the Office To Pou Tupua, consisting of two guardians for the River which were appointed,

one by the indigenous population and one by the Government. These guardians were entitled to act

and speak on behalf of the River and had the general task to promote and protect its health and well

being12. They were supported and advised by an advisory group consisting of three persons, and by a

strategic group, consisting of maximal 17 persons, where different local indigenous groups and the

Government were represented and which also had to support the wellbeing of the River13.

Until mid-2019, no action was brought in the name of the Whanganui river14, though the river was

and continues to be the subject to all sorts of impairments such as hydro-electric power plants

3 Te Urewera Act 2014, no.51. 4 Ibidem, Article 11. 5 Ibidem, Article 12. 6 Ibidem, Article 58. No permit was needed for mining activities in the area which complied with New Zealand mining legislation, Article 56. 7 Ibidem, Articles 16 to 21. 8 Ibidem, Articles 33 and 34. 9 Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, Public Act 2017, no.7, of 20 March 2017. At the end of 2017, an agreement was reached to give also to New Zealand's Mount Taranaki the status of a living entity, and to share its monitoring between the Government and the indigenous population. 10 Ibidem, Article12. 11 Ibidem, Article 14. 12 Ibidem, Articles 19 and 20. 13 Ibidem, Article 29. 14 See Maori Law Review - a Monthly Review of Law Affecting Maori, 2015 - July 2019.

3

implantation, polluting discharges, agricultural runoff, waste disposal, wetland conversion, gravel

extraction, local drainage schemes or measures to make it navigable. The Whanganui River Act does

not prescribe or provide for actions to be taken by individual persons, but requests generally the

promotion of the health and wellbeing of the River.

Ecuador

In Ecuador, an amendment of the constitution in 2008 introduced rights of nature15. Article 71 of the

new constitution stated: "Nature, or Pachamama, where life is reproduced and occurs, has the right

to integral respect for its existence and for the maintenance and regeneration of its life cycles,

structures, functions and evolutionary processes. All persons, communities, peoples and nations can

call upon public authorities to enforce the rights of nature"16. Article 12 stipulated a human right to

water; however, Article 318 added that the State "shall be directly responsible for planning and

managing water resources for human consumption, irrigation to guarantee food sovereignty,

ecological wealth and productive activities, in this order of priority". Article 14, together with Article

88, introduce a sort of actio popularis in favour of the environment17. The rights laid down in the

Constitution are "directly and immediately enforced", either ex officio or at the request of parties.

Absence of a legal regulatory framework is not a justification for their infringement, dismissal or lack

of recognition18.

As the constitution requests the State to plan the national development, eliminate poverty and

promote sustainable development, the rights of nature may come into conflict with economic

activities of the State. No constitutional provision deals with the solving of such conflicts and Ecuador

did not adopt secondary legislation to address this issue. Article 407 of the Constitution prohibits the

extraction of nonrenewable natural resources in sensitive areas; however, this prohibition maybe

waived at the request of the President of the Republic and a parliamentary declaration19. Ecuador

made use of the exception in particular in its Mining Act of 2009 and its Hydrocarbons Reform Act of

201020. Driving force of this legislation, which was bitterly opposed by large parts of civil society and

the indigenous communities, was President Correa of Ecuador who had also been behind the

constitutional reform. He argued that it was the State's right and obligation to ensure a socially and

environmentally responsible mining practice.

15 For a description of the social and historic context which led to this amendment and an analysis of the environmental provisions of the new Constitution, see Louis Kotzé - Paola Villavivencio Calzadilla: Somewhere between rhetoric and reality: environmental constitutionalism and the rights of nature in Ecuador. Transnational Environmental Law 2017, 401-433. 16 See also Constitution of Ecuador, Article 10(2): "Nature shall be the subject of those rights that the Constitution recognizes for it". 17 Constitution of Ecuador, Article 14: "The rights of the population to live in a healthy and ecologically balanced environment that guarantees sustainability and the good way of living (sumak kawsay) is recognized. Environmental conservation, the protection of ecosystems, biodiversity and the integration of the country's genetic assets, the prevention of environmental damage, and the recovery of degraded natural spaces are declared matters of public interest". Article 88 states that "Protection proceedings can be filed whenever there is a breach of constitutional rights". 18 Ibidem, Article 11(3). 19 Ibidem, Article 407: "Activities for the extraction of nonrenewable natural resources are forbidden in protected areas and in areas declared intangible assets, including forestry production. Exceptionally, these resources can be tapped at the substantiated request of the President of the Republic and after a declaration of national interest made by the National Assembly.." 20 See Kotzé - Villavivencio (fn.15), p.430ss.

4

Ecuador did not - until mid-2019 - adopt secondary legislation to make the rights of nature

operational. Thus, it was up to the public authorities and to the judiciary to enforce these rights.

Kauffman and Martin identified, until 2017, 13 court and administrative cases where the rights of

nature were invoked21. They argued that, when the public authorities - in particular the Ministry for

the Environment - were actively pressing for the right of nature, the courts, in all relevant cases,

followed. The cases concerned criminal law, such as the illegal killing of a condor22, of a jaguar23 or

the illegal fishing of sharks24. In a case of 2010, the Ministry for the Environment invoked the rights of

nature to stop a palm plantation in Secoya, which did not have a valid permit and which had cut

some 180 hectares of native forests. The Ministry ordered the reforestation of the logged area and

fined the municipality which had allowed the cutting or the area. When the Ministry ordered the

stop of the unauthorized activity of a shrimp company in the Cayapa ecological reserve, the company

invoked its constitutional rights of property and the right to work. Finally, the Constitutional Court

clarified in 2011 that the rights of nature prevailed over those fundamental rights.

A similar situation concerned the artisanal mining in the cantons of Eloy Alfaro and San Lorenzo

(province of Esmeraldas) which were ecological reserves. The Ministry of the Environment obtained,

in 2011, a court judgment that the mining was not authorized. Then the president of Ecuador issued

a decree which ordered the destruction of the mining equipment which the army executed. Similar

operations were repeated in subsequent years.

In 2009, several neighbours brought a case against a pig farm in Santo Domingo de los Colorados,

arguing that their fundamental rights to health and to a clean environment were infringed. When the

Constitutional Court heard the case in 2009, it added ex officio that also the right of nature was

affected. The Court did not stop the activity of the farm, but ordered the establishment of a

commission to monitor the farm's water and waste management and to ensure that the rights of

nature, citizens and communities were properly protected.

In 2012, several residents wanted to stop the prolongation of a road in Santa Cruz (Galapagos),

arguing that tourism would be affected. The court found that the road would affect a natural habitat

and argued that the rights of nature had also to be taken into consideration by the authorities. The

court ordered an environmental impact assessment and measures which ensured that nature's rights

during the migration period of species would be preserved.

In 2001, the Government authorized the construction of a road between Macuma and Taiha to

enable the extraction of oil; the construction of the road started, but was delayed. Following the

adoption of the new constitution and in view of the citizen objections against oil extraction, the

official policy changed and the construction permit for the road was withdrawn. On request of the

Government, a court agreed in 2011 that the construction of the road would infringe the rights of

nature. The construction equipment was seized and criminal action introduced against local

authorities.

21 Craik M.Kauffmann - Pamela L.Martin: Can rights of nature make development more sustainable? Why some Ecuador law suits succeed and others fail. World Development 2017, 130-142. The subsequent discussion of the cases is largely based on that publication. 22 A case of 2014. The hunter was sentenced to prison. 23 A case of 2014. The hunter was sentenced to prison. 24 A case of 2015. The captain of the ship and the crew members were sentenced to prison, the ship was seized.

5

Civil society representatives were less successful with their attempts to make the right of nature

operational. A case was brought before the Constitutional Court which asked it to declare the Mining

Act of 2009 incompatible with the rights of nature. The application was dismissed, because the Court

found that the Mining Act contained provisions to ensure the protection of the environment - the

requirement of an environment impact assessment, water treatment provisions, reforestation

requirements - and because Article 407 of the Constitution allowed exceptions to the protection of

nature. When the building of an open pit copper mine ("Mirador") in an ecologically important area

was planned with the support of the Government, relocations of people were organized and

significant parts of the area destroyed. The court considered that the applicants were not owner of

the land which was affected - a requirement which the law did not contain - and that they had not

complied with procedural requirements for the submission of evidence. An appeal failed and the

mine started to operate in 2019.

In contrast, a case which two American citizens in Ecuador brought before a court in the name of a

river, was successful25. The applicants argued that the construction of a road close to the Vilcabamba

river had led to the unauthorised discharge of excavation waste into the river, causing changes of its

course and inundations which impaired the rights of the river26. The Court found that no

environment impact assessment for the construction of the road had been made and that the

excavation waste had not properly been disposed of; this impaired the rights of nature. It requested

the provincial authorities to establish a restoration plan, to present public excuses and to continue

with the construction of the road only, when it was certain that no environmental damage was

caused. Subsequently, the road construction came to a halt, but restoration work was delayed for

years27.

From all the cases where public authorities were involved, Kauffman and Martin concluded that the

"Ecuador Government acted instrumentally, invoking the right of nature when it served its purpose

and ignoring rights of nature when it challenged government policies. Consequently, Government

positions look quite hypocritical, particularly on mining"28. Though less explicit, Kotzé and

Villavivencio29 appear to be close to this assessment.

Bolivia

Bolivia also adopted a new constitution in 2009. That constitution, however, did not establish a right

of nature, but remained, in particular in its preamble, general with regard to the respect of Mother

Earth (Tierra Madre - Pachamama). It established an individual right to a healthy environment30 and

25 Provincial Court of Loja, case 11121-2011-0010, Wheeler and Huddle v. Director de la Procuraduría del Estado de Loja, judgment of 30 March 2011. 26 The applicants were themselves owner of land close to the river, where they intended to construct an ecotourism centre, though they did not claim that their rights of property had been impaired. See Laurel Fish: Homogenizing Community, homogenizing nature: an analysis of conflicting rights in the rights of nature debate. Social Science 2013, 6. 27 See also Sofia Suárez, Defending nature: challenges and obstacles in defending the rights of nature. Case study of the Vilcabamba River, Friedrich-Ebert-Stiftung, library.fes.de/pdf-files/bueros/quito/10386.pdf (assessed 2-9-2019). 28 Kauffmann- Martin(fn.21). 29 See Kotzé-Villavivencio (fn.15). 30 Constitution of Bolivia, Article 33:Everyone has the right to a healthy, protected and balanced environment". Article 16 gives every person the "right to water and to food". Article 20 gives everyone the right to access to basic services of potable water and sewer systems.

6

allowed action by everybody to protect the environment31. These provisions, though, did not

introduce a priority function of the natural environment over other interests, as becomes clear from,

among other, Article 9(6) which declared as a duty of the State to "promote and guarantee the

responsible and planned use of natural resources, and to stimulate their industrialization through the

development and strengthening of the productive base in its different dimensions and levels", which

is completed by the provision that "the industrialization and sale of natural resources shall be a

priority of the State"32.

In 2010, Bolivia adopted Law No.071 on the Rights of Mother Earth33 which gave the following rights

to Mother Earth: right to life, to the diversity of life, to water, to clean air, to equilibrium, to

restoration and to a living free of pollution34. The content of these rights was not further developed.

This Law was completed by a Framework Law of 201235 which stipulated that the infringement of the

rights of Mother Earth constituted an infringement of public law and of the collective and individual

rights36. The public authorities were requested to defend before the administrative and judicial

authorities the rights of Mother Earth. Also individual persons and collective groups were recognized

to defend the rights of Mother Earth. However, once a judicial or administrative action had been

introduced by a public authority, no further action was allowed to be introduced37.

The Law of 2010 provided for the setting up of the Office of Mother Earth whose mission should be

the implementation, promotion, diffusion and application of the rights of Mother Earth. The Office

should be entitled to initiate administrative or judicial actions when the rights were infringed. Its

structure, functions and competences were to be regulated by specific legislation38, which, by mid-

2019, was not yet adopted; the Office was not yet established.

After the adoption of the Constitution, the Bolivian authorities largely ignored the rights of Mother

Earth and pursued a policy of economic growth and expansion, promotion mining and other

extractive activities which had the potential of impairing the environment39. The best-known

example of this policy is the TIPNIS-case: TIPNIS stands for the Indigenous Territory and National Park

of Isibora Sécure which is a national park since 1965. The Government wanted to construct a

highway road which linked the cities of Cochabamba and Trinidad (Villa Tanui and San Ignacio de

Moxos) and which went right through the protected area. The project met the open objection of the

indigenous population which lived in TIPNIS, as it also promoted oil exploration, colonization by non-

indigenous settlers, and otherwise affected the rich biodiversity of the area. In 2011, following strong

31 Ibidem, Article 34:"Any person, in his own right or on behalf of a collective, is authorised to take legal action in defenseof any rights, without prejudice to the obligation of public institutions to act on their own in the face of attacks on the environment". 32 Ibidem, Article 355. 33 Ley 071 de Derechos de la Madre Tierra, of 21 December 2010. See generally on the Bolivian situation with regard to rights of nature: Paola Villavivencio Calzadilla - Louis Kotzé: Living in harmony with nature? A critical appraisal of the rights of Mother Earth in Bolivia. Transnational Environmental Law 2018, 397-424, who raise, among others, the question, whether the whole Bolivian approach to rights of Pachamama is just a window-dressing exercise. 34 Ibidem, Article 7. 35 Law 300 de Marco de la Madre Tierra y Desarrollo Integral para Vivir Bien of 15 October 2012. 36 Ibidem, Article 38. 37 Ibidem, Article 40. 38 Law 071 (fn.33), Article 10. 39 See, for example, the adoption of Ley 535 de Mineria y Metalurgia of 28 May 2014.

7

public opposition to the project, a national law was adopted to give special protection to TIPNIS40;

the Law ensured that the road would not be built to cross TIPNIS and that the area was "intangible".

However, the Government continued with its project, without even making a correct environmental

impact assessment41, without examining alternative road lines, without ensuring full participation of

the indigenous population in the decision-making process and without minimizing negative effects of

the road. As the objections of the concerned population continued, the government adopted, in

2017, a law which repealed the Law 180 and abolished TIPNIS as national park42.

In daily practice, neither civil society representatives nor public authorities appear motivated to

defend or promote the rights of nature. There are no known court judgments which weigh the

different interests at stake in water pollution issues, infrastructure projects, extractive activities or

other activities which might affect biodiversity or persons. To this contributes also the absence of

enforcement infrastructures in the environmental administration. Generally, the rights proclaimed

for nature in Bolivia are largely on paper only; the practice shows that the country pursues a

classical, growth-oriented economic policy which is in clear - in the meantime also more or less

generally accepted - contradiction with its rhetoric concern for Pachamama.

Columbia

The constitution of Colombia of 1991 recognizes the right of citizens to enjoy a healthy environment

(Article79). It provides for the possibility of popular actions for the protection of collective interests

of the environment (Article 88).

In 2015, several public interest groups brought an action against the State of Columbia for not

stopping the intensive and large-scale illegal use of mercury and its dumping into the River Atrato

and for not stopping illegal logging. The case was finally decided by the Columbian Constitutional

Court43. The Court held that the indiscriminate dumping of mercury into the river and the illegal

forest logging impaired the environment and, at the same time, violated several fundamental rights

of persons living next to the river (right to life, to health, right to water44, right to food, right to

participate in cultural life)45. The requirement of justice for nature meant, according to the Court,

that it was necessary to allow nature to be the subject to rights46. Therefore, the River Atrato, its

basin and tributaries was recognized "as an entity subject to rights of protection, conservation,

maintenance and restoration by the State and ethnic communities"47. The Court, strongly influenced

by the TE Urewera legislation of New Zealand48, decided that within one month, two guardians for

the River Atrato had to be appointed, one by the State and one by the indigenous local communities.

40 Ley 180 de Protección del Territorio Indigeno y Parque Nacional Isibor y Sécure - TIPNIS, of 24 October 2011. 41 The road project was cut into three pieces, two outside of TIPNIS: for these, an impact assessment was made and the parts were constructed. This increased the social and political pressure on the third part of the road which crossed TIPNIS and for which no environmental impact assessment was made. 42 Ley 969 de Protección, Desarrollo Integral y Sustentable del Territorio Indígena y Parque Nacional Isiboro Sécure - TIPNIS, of 13 August 2017. The reading of this law reminds of George Orwell's famous "doublespeak": the provisions of the Law declare to promote and defend the rights of Mother Earth etc. 43 Constitutional Court of Columbia, case T-633/16, Center for Social Justice Studies et al. v. President of Columbia et al., Judgment of 10 November 2016. 44 The Court held that though the right to water was not declared to be a fundamental right in the Columbian constitution, it would treat it as such a fundamental right (section 5.50) 45 Ibidem, section 9.26. 46 Ibidem, section 9.31. 47 Ibidem, section 10.2. 48 See fn 315 of the judgment.

8

Within three months, a commission was to be appointed to advise the guardians. Furthermore,

within fixed delays, a joint action plan was to be developed to stop and definitely eradicate illegal

gold mining, furthermore a plan to decontaminate the river waters, to reforest, to allow the recovery

of traditional forms of subsistence and food, studies were to be undertaken and measures adopted

which allowed the effective monitoring and implementation of the different measures.

The implementation of this judgment was largely unsuccessful, as the illegal miners formed militias

to defend their activities which largely controlled the Atrato basin, as the civil war activities - where

the FARC was involved49 -, had not completely come to a standstill, and as the Columbian

Government lacked the political strength to execute the Court's judgment50. Also, it appeared

reluctant to systematically consult the local(indigenous) communities. By mid-2019, the judgment

was not implemented in the Atrato River basin. Apparently, no further court actions had been

introduced, in order to make the judgment from the Constitutional Court operational.

In June 2019, the Medellin Superior Court issued a similar judgment on the River Cauca51. The society

Ituanga, in possession of the required permits, constructed a hydroelectric plant at the river and had

temporarily closed, during the construction phase, a lock-gate (compuerta) which significantly

reduced the water flow of the river. The Court found that future generations had rights to dignity, to

water, to food security and to a healthy environment, which had to be protected by present

measures. Referring to the judgment in the Atrato River case, it declared that also the River Cauca

had a right to protection, conservation, maintenance and restoration which had to be ensured by the

municipalities and the State. It requested the Government to appoint, within one month, a guardian

for the River Cauca; a second guardian was to be appointed by the affected municipalities and other

concerned entities. Furthermore, within three months, a commission was to be established which

should supervise and advise the guardians. The Colombian Public Prosecution Office and the

Ombudsman should monitor implementation of the judgment and report every six months to the

competent court. The Court did not decide, whether the closing of the lock-gate or the construction

of the hydroelectrical plant was legal or impaired the River Caucas' rights.

A rather similar judgment was delivered by the Colombian Administrative Court of Tolima which

recognized rights of protection, conservation, maintenance and restoration to the rivers Coello,

Combeima and Cocora52. The Court ordered the immediate stop of all gold mining activities in the

rivers, which, at least in part, were based on concessions by the public authorities. The Court asked

an environmental impact assessment on mining activities in the three rivers, established two

guardians for each river, ordered the setting up of an advisory committee for the guardians and

requested the drawing up of a restoration plan for the rivers; all these measures were to be adopted

within fixed time-spans. The State of Colombia was declared responsible for the implementation of

the measures and liable for any damage which had been caused to the rivers, to the adjacent

population - some 600.000 people - and to the environment.

In 2018, the Supreme Court of Colombia was seized by some 25 young persons, who opposed the

deforestation of the Colombian part of the Amazonas forests, arguing that this deforestation was

49 FARC: Fuerzas Armadas Revolucionarias de Columbia. 50 See also Nick Mount, Can a river have legal rights? A different approach to protecting the environment. Independent, 13 October 2017. 51 Tribunal Superior de Medelin, Judgment of 17 June2019, Castro Cordoba and David Ochoa v. EPM (Ministry for the Environment), Ituango SA et al., case 2019-076. 52 Administrative Court of Tolima, judgment of 30 May 2019, I.Morales v. Ministry of Environment et al.

9

threatening their future and was contrary to the legal obligations of Colombia under international

climate law agreements. The Court concluded that "it is clear that despite the existence of numerous

international agreements, legislation and jurisprudence on the issue, the Colombian State has not

effectively tackled the problems of the deforestation of Amazonia"53. It referred to the judgment of

the Constitutional Court regarding the river Atrato and declared the "Colombian Amazonas" as entity

and subject of rights to protection, conservation, maintenance and restoration. It ordered the

Colombian government, together with the affected municipalities, agencies and representatives of

civil society to draw up, within four months, an action plan to reduce deforestation in the Colombian

area of the Amazonas. Furthermore, within five months, the Government had to draw up an

intergenerational plan for the live of the Colombian Amazonas which reduced deforestation at zero;

all affected municipalities had also to draw up plans to reduce deforestation to zero levels. An

information of the Colombian Ministry of Agriculture of August 2109 reported that work on the

action plan and the intergenerational plan had started, but that both measures were not yet

adopted54.

USA

In 2006, the US Borough of Tamaqua adopted a municipal legislation in order to limit the disposal of

sewage sludge and other hazardous waste within the municipality55. The Ordinance stated that each

load of sewage sludge had to be tested as to its hazardousness, before it was disposed of within the

Borough. The Borough and any resident were given standing to seek declaratory, injunctive and

compensatory relief for damage caused to humans and the environment in the Borough56.

Ecosystems were considered a person for the purposes of enforcing the Ordinance57, but no further

consequences were drawn from this classification. It is not known, whether any liability case was

subsequently litigated in Tamaqua.

In 2011, the city of Pittsburgh adopted legislation which declared the deposition of toxic chemicals to

be a form of prohibited trespass58. It gave to every Pittsburgh resident the right to enforce this

provision in court59.

In 2017, some plaintiffs addressed a federal court in the US State of Colorado, requesting it to decide

that the Colorado River Ecosystem was a person possessing rights and in particular the "right to exist,

flourish, regenerate, be restored, and naturally evolve". The State of Colorado objected, and under

the threat of being personally liable for bringing a frivolous case before the Court and having to pay

compensation, the plaintiffs withdrew their application60.

53 Supreme Court of Colombia, judgment STC 4360-2018 of 5 April 2018, section 13. 54 Pacto Intergeneracional por la Amazonia Colombiana; minagricultura.gov.co/PIVAC/Paginas/Inicio.apsx (assessed 30-8-2019). 55 Tamaqua Borough: Sewage Sludge Ordinance 612 of 19 September 2006. 56 Ibidem, section 7.6 and section12.2. 57 Ibidem, section 7.6. 58 City of Pittsburgh, Ordinance of 19 December 2011 "supplementing the Pittsburgh Code... by adding Chapter 619 entitled 'Toxic Trespass from Unconventional Natural Gas Drilling'". 59 Ibidem, section 619.04(a): "The deposition of toxic substances or potentially toxic substances within the body of any resident of Pittsburgh, or into any natural community or ecosystem, which results from activities prohibited by Ordinances of the City... is declared of a form of trespass, and is hereby prohibited". Section 619.5(c): "Any City resident shall have authority to enforce this Ordinance". 60 Colorado River Ecosystem v. State of Colorado, Order by the District Court for the District of Colorado of 4 December 2017.

10

In early 2019, the City of Toledo (Ohio) decided, following a citizen referendum, to include in its

municipal constitution rights for the Lake Erie, giving it "the right to exist, florish and naturally

evolve"61. The people of Toledo "possess the right to a clean and healthy environment". The violation

of these rights by business activities or any government were declared unlawful and an offence. The

City of Toledo and the residents of the City were given the right to enforce these rights and

prohibitions by an action brought before a federal court of the United States; furthermore, "(T)he

Lake Erie may enforce its rights .. through an action presented either by the City of Toledo or a

resident or residents of the City" before a federal court. Laws or permits granted by the State of Ohio

or the US Government were not allowed to interfere with the above-mentioned rights. Damage to

Lake Erie - in particular the costs of restoration - had to be compensated by payments to the City.

Drewers Farm Partnership, a farm in Ohio, brought an action before a court, asking that the new

legislation be declared unlawful. It argued that it could never guarantee that all runoffs from its

farming activities would always be prevented from entering Lake Erie. If the plaintiffs could not

fertilize their fields, they would be unable to survive economically. The plaintiffs asked for

preliminary and permanent injunctions. The City of Toledo did not object to the temporary injunction

which was thus granted by the federal court in March 2019.

The State of Ohio was allowed third-party intervention in mid-March. It argued that the municipal

legislation was incompatible with existing law: in particular, local legislation could not introduce new

rights of action for citizens; this was the privilege of the State of Ohio. Also local law could not

declare inapplicable permits or concessions which had been granted by the State of Ohio or by the

US Government. Furthermore, the local legislation touched the rights and interests of four US States

which bordered Lake Erie, and also those of Canada. However, relations with other countries were

the exclusive competence of the US Government.

In July 2019, the State of Ohio passed legislation which declared: "Nature or any ecosystem does not

have standing to participate in or bring an action in any court of common pleas. No person, on behalf

of or representing nature or an ecosystem shall bring an action in any court of common pleas". At the

time of writing (end of August 2019), the case is still pending.

Boyd reported in 2017, that some 30 municipalities in the USA had adopted legislation to prohibit

harmful activities such as hazardous waste disposal, the disposal of polluted water or the abstraction

of water; next to the right of nature, these municipalities invoked a fundamental right of self-

government over their own natural resources62. The legality of these municipal laws is contested63. A

judgment of the US Supreme Court is lacking so far.

India

In India, the High Court of Uttarakhand declared in 2017 in a public interest litigation that the rivers

Ganges(Ganga) and Yamuni had legal rights64. The High Court named three officials from public

61 City of Toledo: Lake Erie Bill of Rights, of 26 February 2019. 62 Boyd (fn.1); Borràs (fn.1), p.137. 63 According to the US constitutional supremacy clause, a local or State law that conflicts with federal law, is unlawful. 64 High Court of Uttarakhand, Order of 20 March 2017 on Writ Petition no.126 of 2014, Mohd.Salim v. State of Uttarakhand et al., no.19:"the River Ganga and Yamuna, all their tributaries, streams, every natural water flowing continuously or intermittently of these rivers, are declared as juristic/legal persons/living entities having the status of a legal person with all corresponding rights, duties and liabilities of a living person".

11

authorities who were to act as parentes patriae for the rivers. A management board to be set up

within three months which should ensure the execution of the judgment. The High Court did not

elaborate, what the attribution of duties and liabilities of the named officials meant, whether they

should, for example, be liable for damage caused by inundations or by contaminated water.

Ten days later, the High Court even went a significant step further, declaring almost all parts of the

natural environment to be legal entities65, but without giving any explanation, how, for example, the

legal entity "air" could be made operational. The Court appointed four officials from public

authorities as parents, "as the human face" to protect the State of Uttaprakhand.

The State of Uttarakhand appealed these judgments, and in a decision which was adopted only four

months later, the Supreme Court of India halted the decisions until a final judgment by the Supreme

Court; the case which was, in mid-2109, still pending. The Supreme Court argued, amongst others,

that the applicants had not requested a general declaration on the rivers or the natural environment

which was thus ultra petitum, and, furthermore, that the rivers Ganges and Yamuna crossed another

Indian State before entering the State of Uttarakhand, so that it was doubtful, whether the guardians

could comply with their obligations, as they only had powers in the territory of Uttarakhand.

While it is thus at present unclear, whether the Ganges and Yamuna rivers are legal entities under

Indian law, an order by the Indian National Green Tribunal might be of interest66. In an order of May

201967, this Tribunal examined the water quality of the river Ganges. It found that the river waters

continued to be heavily polluted, in particular by untreated sewage, industrial effluents and the

dumping of all sorts of waste, and that illegal encroachments and illegal sand mining continued to

take place, despite the fact that the Supreme Court of India and itself had repeatedly ordered the

cleaning up of the river, in conformity with the Indian Water Act of 1974 which provided in particular

as enforcement measures the closing of polluting activities, the prosecution of polluters and the

payment of compensation by polluters, in order to restore the river. However, these provisions had

not been seriously enforced by the responsible public authorities. The Tribunal referred to earlier

orders which it had made - five such orders between 2017 and 2019 alone - and where it had given

clear and precise instructions how to proceed - fortnightly or monthly progress reports, meetings of

the responsible commissions etc - and stated that the government authorities had only taken some

few initiatives to improve the situation. The Court showed surprise that even the "National Mission

for Clean Ganga", a public authority, had opposed the closure of non-complying activities. It gave

65 High Court of Uttarakhand, Order of 30 March 2017,on Writ Petition no. 140 of 2015, Lalit Migliani v. State of Uttarakhand et al., no.2: "We, by invoking our parens patriae jurisdiction, declare the Glaciers including Gangotic & Yamunatri, rivers, streams, rivulets, lakes, air, meadows, dales, jungles, fresh wetlands, grasslands, springs and waterfalls, legal entity/legal person/juristic person/moral person/artificial person having the status of a legal person, with all corresponding rights, duties and liabilities of a living person, in order to preserve and protect them. They are also accorded the rights akin to fundamental rights/legal rights". 66 See on the Indian National Green Tribunal Gitanjali N.Gil, A green tribunal for India, Journal of Environmental Law 2010, p.461-474. 67 National Green Tribunal, Order of 14 May 2019, M.C. Mehta v. Union of India et al., original application 200/2014 (applications 10/2015; 668/2017; 34/2018; 337/2018; 390/2018). See also Order of the same Tribunal of 7 May 2019 concerning groundwater abstraction and pollution (on application 59/2012) and of 16 May 2019 concerning the general status of river water quality in India (on applications 321/2019 and 328/2019).

12

new directions how to proceed, in order to ensure that "(R)epeated directions of the Honourable

Supreme Court and this Tribunal in the last 34 years should not remain on paper"68.

Bangladesh

In a judgment of 1 February2019, the Dhaka High Court delivered a judgment declaring the Turag

River in Bangladesh to be a legal entity; and as, according to earlier judgments of that Court, all rivers

in Bangladesh had the same legal status, it extended this notion to all rivers in Bangladesh, stating

that "a river is a legal person, a juristic person and has the right to protect its rights"69. According to

the Court, the State had to act as a trustee "of all rivers, hills, sea beaches, canals, beels and other

water bodies". The Court declared that the National River Conservation Committee (NRCC) which up

to now only had advisory functions, should from now on act as the body bound to protect the

waters. Therefore, it would have to be empowered to take effective action against "river grabbers"70.

All other public authorities would need, in future, need the green light from NRCC before

undertaking any new scheme for any river, canal or water body. River encroachers should not be

allowed to stand in any local or other elections and should not be allowed to receive bank loans.

Furthermore, the Government should make a list of all land grabbers and expose them in public

notices (name and shame).

Whether the judgment will be appealed to the Bangladesh Supreme Court, is not yet decided.

Government authorities started with some destruction of illegal constructions alongside some rivers.

However, the different instructions of the Court to the Bangladesh Parliament and Government have

not yet led to any activity from that side. In substance, implementation of the judgment will be

difficult, as for example, only 10 percent of the Ganges River are on Bangladesh ground, whereas 90

per cent are on Indian ground, which is upstream of Bangladesh.

Uganda

The Uganda Environmental Act of 201971 introduced a right to a clean environment for every person

in Uganda, who also obtained the right to file a case against any impairment of this right72.

Furthermore, the Act declared that nature had the right to exist, persist, maintain and regenerate its

vital cycles, structure, function and its processes in evolution and continued: " A person has the right

to bring an action before a competent court for any infringement of rights of nature under this

Act"73. These provisions did not yet become operational through secondary legislation or judicial

decisions.

68 Ibidem, section 13. 69 An English version of the judgment is not yet available. The quotations are taken from S.Chandrasekharan: Bangladesh: landmark judgement of High Court against 'river grabbing' , South Asia Journal of 13 February 2019. 70 The term "river grabbers", used by the Court, appears to be derived from "land grabbing" which is defined as "(A) global enclosure movement in which large areas of arable land change hands through deals often negotiated between host governments and foreign investors with little or no participation from the local communities who depend on access to those lands for their livelihoods"; quoted from Evadné Grant - Onita Das: Land grabbing, sustainable development and human rights, Transnational Environmental Law 2015, p.289, who refer to O.De Schutter: The Green Rush: the global race for farmland and the rights of land users, Harvard International Law Journal 2011, p.504. 71 Uganda, The National Environment Act 2019, of 24 February 2019. 72 Ibidem, Article 3 and Article 3.3. 73 Ibidem, Article 4.

13

Section II: Comments on the implementation of rights of nature

Rivers and natural areas and their rights

The overview of rights-of-nature cases74 in section one shows, in the majority of cases, a similar

pattern: a court determines that a river or an environmentally important area is a legal entity or has

the rights of a legal person. It appoints two or more guardians, who are empowered to speak in the

name of the river or of the natural area. When the court finds that there is environmental

impairment caused by human activities, it orders the public authorities to adopt one or several plans

within a specific time-span, in order to restore the river or the area and ensure its lasting protection.

Of course, not all cases mentioned in section one fit into this pattern. Rights of nature in Ecuador and

also in Bolivia and now in Uganda were laid down in the constitution of these countries.

Consequently, in Ecuador, the court decision in the Vilcabamba case75, based itself on the

constitution. As regards Bolivia and Uganda, no court decisions are known, where the constitutional

right of nature was made operational. In New Zealand, the decisions to grant legal rights to the Te

Urewera area and to the river Whanagui were legislative acts and - this is important to note - were

not in first line adopted for environmental reasons. Rather, the legislative decisions intended to solve

long-lasting conflicts between the indigenous population of the Maori and the New Zealand

Government on ownership for the area and the river, on decision-making powers and management

rights. Finally, the decisions adopted by different municipality ordinances are of another kind; they

will be separately discussed below.

When a court takes a decision that a river is a legal entity, its decision concerns that specific river

and, at best, its tributaries; only the High Court of Uttarakhand and the Bangladesh court declared

that all rivers in Uttarakhand and Bangladesh had the same legal status and therefore considered all

rivers to be legal entities76. What the national Government or the parliamentarian authorities of a

country do with the other rivers, is left at their discretion. Normally, one would expect that they also

grant the same rights to the other rivers. However, no country or region appears to have taken

measures which declared all rivers to be legal entities, not to talk of lakes, brooks or - why not? -

coastal waters; the exceptions were the High Court of the Indian State of Uttarakhand, whose

decision, though, was stayed by the Indian Supreme Court, and the very recent judgment of the

Bangladesh court.

Within the EU, the concept of rights of nature has not yet been materialized, neither in legislative nor

in court decisions. Rivers have not been granted the status of a legal person. Whether such an

attribution by a court is legally possible, is more than doubtful, though this might be possible in

Ireland, a common law country. In the other EU Member States, such an attribution would have to

be made by legislation. Courts do not have, in civil law countries, the power to attribute the status of

a legal person to rivers or other natural assets.

In order to protect rivers, the EU took another way. Where rivers are in question which traverse

several countries, agreements under public international law were concluded to organize the

74 When the situations and cases of section one are referred to in general, they will hereafter be called "rights-of-nature cases". 75 See text to fn.25. 76 See text to fn.65 and to fn 69.

14

management and protection of the rivers. This concerns the Danube77, Rhine78, Elbe79, Odra80,

probably also a number of other transnational rivers such as the Meuse, the Escaut etc. All bordering

countries and the European Union adhered to these international conventions. The making of

agreements appeared necessary, in order to ensure cooperation of the different countries which

bordered the river. Moreover, also for rivers which do not traverse several countries, the EU adopted

legislation to ensure an environmentally sound river management: under Directive 2000/6081 which

is a binding piece of legislation, the EU Member States are obliged to draw up programmes for the

monitoring of waters82, programmes of measures for each river basin83, as well as river basin

management plans84. In this way, the EU ensured that all rivers in the EU are subject of management

measures. While the implementation of these different plans and programmes also raises problems

within the EU, at least the different obligations which the Member States's authorities have to

comply with are laid down in clear, transparent and detailed provisions.

The EU has adopted two other measures to limit or reduce water pollution: first, a legislation

provides that all agglomerations of more than 2000 persons and agro-food industries must collect

their waste water and must ensure treatment of the waste water, before it is discharged85. This

legislation from 1991 requires investments of 19 to 25 billion euro per year, and the average

compliance rates within the EU turn around 90 per cent86. The second measure concerns the

discharge of pollutants by industrial installations which must comply with the best available

techniques87, a requirement that is detailed for each industrial sector after lengthy discussions with

the affected industry and finally adopted by regulation; the individual permits for industrial

installations must reflect this best available technique. Both legislative measures led to a significant

improvement of the water quality in the EU, though compliance with the legislative requirements is

still not fully achieved88.

77 Regensburg Agreement of 1990 on cooperation for management of water resources in the Danube basin. Sofia Convention of 1994 on cooperation for the protection of the Danube. 78 Bonn Convention of 1976 on the protection of the Rhine against chemical pollution. 79 Magdeburg Convention of 1990 on the International Commission for the protection of the Elbe. 80 Wroclaw Convention of 1996 on the International Commission for the protection of the Odra against pollution. 81 Directive 2000/60 on surface and groundwater, OJ 2000, L 327 p.1. 82 Ibidem, Article 8. 83 Ibidem, Article 11: these programmes of measures must foresee in particular measures to implement other EU water legislation, the cost of water services, measures to reduce the level of purification required for the production of drinking water, measures to control the abstraction of water, for point sources of pollution measures to control the input of pollutants (such as permits, prohibitions of pollutants etc), prohibitions of direct discharges of pollutants into groundwater and measures to eliminate the pollution of waters. 84 Ibidem, Article 13. That provision lays down in detail the content of such river basin management plans. 85 Directive 91/271 on urban waste water treatment, OJ 1991, l 135 p.40. 86 Commission, COM(2017) 749. The high costs are capable of being largely recovered through a strict application of the polluter-pays principle. 87 Directive 2010/75 on industrial emissions, EUOJ 2010, L 34 p.17. 88 However, this legislation also leaves room for initiatives from civil society: for example, in the 1980s, the port of Rotterdam(Netherlands) was confronted with high loads of toxic silt which came from the Rhine river. It hired a boat that went the Rhine upstream and collected data on discharges of the hundreds of industrial companies and other polluters which discharged toxics into the Rhine. Confronted with the results, the German and French affected industry accepted to pay for the clean-up of Rotterdam port, rather than facing court procedures. See Jan van Dunné, The case of the river Rhine. The Rotterdam contribution, in: P.Thomas (ed.): Water pollution, law and liability. London: Graham & Trotman 1993, 75-87.

15

As regards natural areas, the Court of Justice of the EU (CJEU) has held that the principle of legal

certainty requires that measures concerning the protection of a natural area must be adopted by

binding legislative or regulatory provisions, in order to clarify the rights and obligations of all

concerned persons89.

Public participation in the drawing up of a restoration or protection plan

When the courts in the "rights-of-nature"-cases described in section one request the public

authorities to draw up a restoration plan or another, similar plan for a river or a natural area, they

normally set a date within which such plans shall be drawn up. Generally, these delays did not

exceed six months. However, such a short delay makes it almost impossible to properly prepare a

plan, let the affected population participate in the elaboration of the plans, hear experts, political

parties and lobby groups and properly weigh the pros and cons of the different measures which are

to be taken for the implementation of the plans. Furthermore, the courts normally did not lay down

any requirement for the public authorities which were in charge to draw up such plans, to make a

draft plan and in particular the final plan publicly available. Nothing was said either in these court

decisions on the updating or amendments of the plans.

In the EU, the river basin management plans must be submitted to the interested public for

comments, for which at least six months must be made available. Furthermore, Directive 2000/60

lays down in detail which documents must be made available to the interested public in order to

allow it to comment90. River basin management plans and programmes of measures must be

reviewed and updated at least every six years. These plans and programmes, as well as the

programmes for the monitoring of waters must be sent to the European Commission which has the

task to ensure that the law is complied with. Where a Member State does not comply with its

obligations of drawing up plans or transmit them to the EU Commission, the Commission may bring

the case before the Court of Justice of the EU91 which, after a lengthy procedure, may even

pronounce financial sanctions against the defaulting Member State92.

It is true, though, that all the different measures available do not ensure that all EU Member States

continuously comply with their obligations under Directive 2000/60. However, the system allows the

enforcement of the legislative provisions and, overall, exercises an important function to manage the

river pollution all over the EU and to approach the objectives of Directive 2000/60, laid down in its

Article 4, to reach a good ecological and chemical quality of surface and groundwater.

Guardians

It is a commonplace that the environment has no voice. In order to give rivers or natural areas such a

voice, - some court decisions talk of giving the asset a "human voice" - the different courts instituted

two or several "guardians" for the river or the natural area, who were to act in the name of the asset.

Sometimes, these guardians were to be assisted by a commission which was to be established by the

89 CJEU, case C-415/01,Commission v. Belgium, ECLI:EU:C:2003:118. 90 Directive 2000/60 (fn.81), Article 14: a timetable and work programme for the production of the plan, three years in advance; an interim overview of the significant water management issues identified, two years in advance; draft copies of the river basin management plan, one year in advance; furthermore, on request background documents and other information used for the production of the plan. 91 See for example, CJEU, cases C-366/11, Commission v. Belgium, ECLI:EU:C:2012:316; C-151/12 Commission v. Spain,ECLI:EU:C:2013:690; C-190/14 Commission v. Denmark, ECLI:EU:C:2014:2341. 92 See Treaty on the Functioning of the EU (TFEU), Articles 258 and 260.

16

Government and which was to include in particular representatives of the indigenous or local

population and civil society representatives. Apparently, these instructions followed the example

given by the Te Urewera and Whanganui River Acts of New Zealand, though most courts did not

mention this model. It is to be repeated, therefore, that the New Zealand Acts did not aim principally

at the protection of the environment, but rather transferred the management of the river and the

natural area to Government-appointed persons and advisory bodies, in order to solve conflicts on

land use.

Any activity of the "guardians" with regard to the concrete protection of the rivers in the cases

mentioned above is not known. Also the establishment of the advisory committees - if ever it really

has taken place - is remarkably discreet and nothing is known on any specific action or advice from

their side. It rather seems that the courts' instructions to prepare plans or programmes transferred

the responsibilities for further action to the national Government which continued with its normal

monitoring and management activities, without specifically enabling the guardians to take whatever

action and equip them with the necessary financial means93.

Appointing a guardian for a river which is a legal person also implies that the river - the guardians -

may be held responsible for damage caused by the river, such as damage caused by polluted water,

by inundations or by changes in the water flow. This problem was shortly raised - but not solved - in

the appeal of the Uttarakhand State94, but is a general problem. It also raises the question of the

river's responsibility to compensate for damage, when, for example, the river - through its guardians

- did not act against water abstraction by hydroelectric installations or against discharges of polluted

waste water which affected downstream water users.

What finally a river's interests are, is not certain. For example, the Whanganui River in New Zealand

is widely used for canoeing and other leisure activities by tourists; these activities also create jobs

and income for local (indigenous or other) people. It might be arguable, when there is too much

canoeing which negatively affects the river fauna and flora, creates excessive noise or too many

landing places at the shores of the river. Even more obvious is the problem of the use of the water

for hydroelectric power plants: is such a plant in the interest of the river, of the plant owners or of

the local population? In New Zealand, the appointed guardians will have to weigh the different

interests and then come to decisions - and it is to be hoped that people find these decisions

acceptable; what the river thinks, is not known.

Generally, one or two guardians might easily be overburdened with the task to protect the interests

of a river and to act in its name. For example, the Atrato River in Colombia has a length of 750 km,

the Coello 1899 km, the Ganges 2.600 km and the Yamuna 1076 km. Millions of people live close to

the rivers, take water from it and discharge into it. While it may theoretically be easy to stop illegal

activities, many of the activities which are the cause of the river's impairment are legal, even when

the legal permit for an activity might have been obtained by corruption methods or otherwise

doubtful practices. Stopping such "legal" activities is an immense task, will take up to several years

and will undoubtedly bind human and financial resources of more than a handful of "guardians".

Furthermore, it seems obvious that the more a guardian defends a river's untouched environment

93 Only the two New Zealand pieces of legislation provided for some financial means for the guardians. This is a further indication that this legislation first of all concerned the delegation of management functions to the guardians. 94 See text to fn.65.

17

and opposes infrastructure or other river-related projects - power plants, bridges, roads, water

abstraction, discharge of waste water, navigation etc - the more he is likely to get in conflict with

vested interests of persons or municipalities bordering the river, or with provincial or national

Governments.

Finding the right balance between diverging interests of society and of the river is first and foremost

the privilege of the legislation/constitution. The appointment of guardians - be they advised by

learned commissions - cannot really substitute the legislator and the executive authorities of a

country. - On all these issues, the different court decisions on rights of nature, mentioned above, are

silent.

Within the EU, there are no guardians of rivers which were instituted. The river management is in the

hands of national public authorities which are bound to act in the general interest and strike the

necessary balances between the protection of the river and economic river-related projects. The

legislature gives general orientations and tries to ensure, with the help of procedures - such as the

granting of permits, the requirement of making an environmental impact assessment, the

requirement to examine alternatives or public information and participation - to orient the day-to-

day decisions. The different commissions of the agreements on transnational rivers, mentioned

above, are composed of government representatives with no representatives of civil society. They do

not deal with questions of permits, discharges etc.; such questions are dealt with by the national

authorities.

Austria's State (Land) legislation introduced the function of the public environment defender

(Landesumweltanwalt) who is appointed by the State Government and has advisory tasks in nature

protection issues which are explicitly defined in the different pieces of legislation; exceptionally, he

also may bring cases before a court95. Hungary established the institution of an Ombudsman for

future generations, who is elected by Parliament and also has essentially advisory functions, but may

institute judicial controls of the constitutionality of legislation96. These appear to be the only forms

where attempts are made in the EU, to give a voice to the environment through specialized bodies.

Access to courts to defend nature's rights

Constitutional and secondary laws well as some court decisions, when giving rights to rivers - to

nature -, also provided sometimes that everybody was entitled to bring actions before the courts, in

order to defend the rights and interests of the river (of nature). This approach is to some extent

consistent, as soon as nature is considered to be a living being on which human's existence depends,

as everybody is affected by the impairment of nature.

It is surprising, though, to find that practically no such cases are brought before the courts by private

individuals, environmental organizations or public interest groups. The most obvious example is

Bolivia, where the constitutional rights of nature seem to be largely ignored by the public authorities

- to begin with the President of Bolivia -, and yet civil society does not engage in judicial disputes to

make the rights of nature operational. It can only be speculated, what the reasons for this abstinence

are. In Ecuador, the Mirador project was no longer opposed by the plaintiffs, as they were afraid that

95 As an example see State of Tyrol, Act on nature protection (Naturschutzgesetz) of 2005, Article 36. 96 See on details István Sárközy, The Hungarian Commissioner for future generations, in G.Bándi(ed.) Environmental democracy and law. Groningen: Europa Law Publishing 2014, p.275-304.

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courts would side with the government and give a restrictive interpretation of the right of nature97.

The case to assert the rights of the Colorado River in the United States was not pursued, because the

applicant, an attorney, was afraid that the court would charge him with excessive litigation costs98.

Perhaps the situation in Portugal might help to explain this rather exceptional character of court

actions in right-of-nature countries: Portugal knows an actio popularis in environmental matters, yet

the number of cases brought before the Portuguese courts is small. Aaragao enumerates as possible

reason for this, as she calls it, "paradox": long delays of procedure, lack of procedural regulation,

resistance of the judiciary system to change, complex administrative laws and their organizational

structures, a preference to solve conflicts through non-judiciary solutions, young and undeveloped

environmentalist associative movement, the costs of justice, and difficulties in access to information

on the environment99. To these reasons might be added the reason which the Portuguese association

of advocates once gave to this author, when they were asked, why they did not bring the case -

opposition to the construction of a motorway, which crossed nature reserves and private property -

before a court: it is not useful for the career of a lawyer to fight in court against a project from which

he knows that the government is in favour of it. One or several of such reasons might also explain

why actions to defend the rights of rivers (of nature) are so few in number until now.

Access to courts within the EU is regulated at the level of Member States. Generally, such access is

rather restricted, with Germany and Austria apparently having the most restrictive system100. Access

to the EU courts is only admitted, when an applicant is individually and directly affected by a

measure of the EU; this is normally not the case, when the environment is to be protected, as the

protection of the environment is in the general, not in the individual interest101. The access to justice-

provisions of the EU leave open the question what happens, when the environment needs

protection, but public authorities which are in charge of enforcing the environmental legislative

provisions remain passive. In such cases, a broader right of access to justice, be it for the protection

of nature or of the environment in general, would be of great value within the EU. However, EU

Governments are generally opposed to any improved access to the courts, because they are afraid

that a proliferation of cases would delay the realization of infrastructure projects, important

industrial investments or other measures which would create jobs and economic growth.

The follow-up of court decisions

All court decisions examined remained silent on the question, what happens, when the public

authorities do not follow the court decision to appoint guardians, set up a commission, draw up a

restoration plan for the river or another clean-up plan, make an environmental impact assessment or

ensure public participation in the decisions on measures to be taken. The Indian Green Tribunal

ordered government officials to appear in court, in order to explain what they did or omitted to do,

but has not yet taken further measures to enforce the execution of its judgments.

97 On the Mirador project, see text to fn. 21. 98 See text on fn.60. 99 Alexandra Aaragao: Portugal, in: J.Jans-R-Macrory - A.-M.Moreno Molina(eds): National courts and EU environmental law. Groningen: Europa Law Publishing 2013, p.349-354. 100 See for an overview Jan Darpö: Effective justice? Synthesis report of the study on the implementation of Articles 9(3)and 9(4) of the Aarhus Convention in seventeen of the Member States of the European Union, in: J.Jans etc (fn.99), p.169-212. 101 Article 263(4)TFEU; exceptionally, an action is also admissible, when an applicant is directly concerned by a measure other than an EU piece of legislation and which does not require implementation measures.

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The Montesquieu principle of separation of powers normally prohibits that courts give instructions to

administrative authorities how to proceed, though procedural administrative and civil law might

have gone away from this principle in some parts of the world. National legislation, though, does

normally not provide for sanctions against public authorities or individual officials which do not

follow court instructions. Therefore it seems that court orders to equip guardians of a river with

financial means, draw up a restoration or other nature protection plan, convene meetings, submit

reports or undertake other activities, remain very often without follow-up from the side of the

administration, without the courts being able to enforce their decisions.

This situation is not unknown to the EU either. For example, a German administrative court ordered

the drawing up of a clean air plan for the city of Munich, which the responsible public authorities did

not execute. The Court then ordered the payment of a sum by the public treasury, which the public

authorities paid without problems, from the general budget, without drawing up the plan. The Court

then considered to send the responsible members of the regional government to jail, in order to

enforce the drawing up of the plan; however, as German law does not know this kind of sanction, it

first asked the Court of Justice of the EU, whether it was legally possible under EU law to send a

member of the (regional) Government to jail102. In Spain, the Supreme Court ordered the demolition

of a holiday village which had illegally been constructed in a nature reserve area103. However, the

regional government which had authorized the construction, refused the demolition with the

argument that demolition would be too expensive; the village was not demolished.

The enforcement of the court decisions on rights of nature remains the crucial point in all this "rights-

of-nature"-jurisdiction. It is one thing to order the drawing up of a restoration plan for a river or for a

region. However, the different involved national, regional and local administrations - normally at

least the agricultural, fisheries, forestry, transport and energy administrations - must agree on such a

plan. Furthermore, the necessary funds must be made available which involves, next to the - local,

provincial, regional or national- parliamentary bodies also the political parties and the government.

Also, a river basin that was cleaned up needs to be managed and monitored in order to ensure that

the impairment is not repeated. This means the short, medium and long-term shifting of budgetary

means from other policy objectives to environmental objectives - which is a very political, not so

much a legal decision.

Any plan for reforestation, for reducing the discharge of waste water, for the recovery and disposal

of waste, for reducing the agricultural run-offs or for other objectives needs time for its realization.

For example, the construction of waste water treatment installations within the EU, decided in 1991,

is still not completed in 2019. Measures may be opposed by vested interests of farmers, industries,

municipalities etc which takes time to overcome. Finally, any multi-annual plan for protecting nature

needs to be monitored, updated, amended to take into consideration new developments etc. And

the necessary funds to realize all the measures which are foreseen in a plan, must be made available

by public decisions or private investments; neither source is available without limits.

At the end of the day, it remains thus impossible to reach a long-term - "sustainable" - restoration

and continued protection of a river or of a natural area which was ordered by a court, without

corresponding parliamentary and/or governmental decisions. And the Bolivian example shows that it

is not even enough to insert rights of nature into the constitution: when the necessary political will

102 See CJEU, case C-752/18, Deutsche Umwelthilfe. The case is pending. 103 Supreme Court of Spain, judgment of 29 April 2014 in cases 2414/2011 and 2940/2011(Valdecanas).

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to continuously preserve and protect the natural environment does not exist and other priorities -

economic growth, "extractivism" etc - prevail, even constitutional requirements may be set aside by

the parliamentary and political forces in a region or in a country.

Court judgments on rights of nature - of rivers or of natural areas - are therefore mainly an

incitement to launch public discussions and decisions in a society, what the political and budgetary

priorities should be and whether the environment deserves or requires to play a greater role in the

policy development. Per se, the court judgments on rights of nature do not ensure a long-term

protection of the environmental assets which were the subject of litigation and of the court decision.

Municipalities

When municipalities declare assets of nature to be living entities, they first of all have in mind to

protect their municipal territory. Municipalities do not have the power to take decisions concerning

parts of nature which are located outside their territory104. Furthermore, national law decides,

whether a municipality may shield its territory against installations, interferences or other uses of the

territory. The decision of the Borough of Tamaqua to restrict the disposal of sewage sludge in the

municipality does not meet any legal objection. In the same way, the City of Santa Fe (Argentina) is

considering to very largely restrict the use of pesticides, in particular of glyphosate in the city105. And

the city of Mals (Italy) adopted, after a referendum, local legislation to prohibit the use of pesticides

altogether106. Also the Pittsburgh decision not to allow fracking in its territory does not meet legal

objections, as a municipality is, in principle, entitled to decide by itself, what kind of economic or

other activity it admits within its boundaries. Obviously, though, things become more complicated,

when, for example, a farmer wants to use, on his own land, pesticides which the municipality

prohibited: in such a case, it will depend on the impact which the use of the pesticides will have on

the health or property of other persons or on the environment, whether the prohibition or the right

of the farmer prevail.

In Europe, in the past, a number of municipalities declared themselves "nuclear-free", to underline

that they were opposed to nuclear power plants and in particular to the storing of nuclear weapons.

The legality of such decisions was never tested in court; the issue is doubtful, as military matters are

often put into the exclusive competence of the national government, and this principle also applies,

though to a lesser extent, to energy policy issues.

A completely different question is, whether municipalities have the competence to introduce

provisions on access to the courts. The judiciary system is set up, at least within the EU, by the

national or the regional government of a country which makes available the necessary financial and

human resources to run the system. It is therefore normal that the authorities which install the

judicial system, also decide on the question which persons shall, under which conditions, have access

to the judicial system. A municipality cannot, therefore, decide that all its citizens shall be entitled to

apply to a court, when they consider that some rights of nature are affected by pollution or by other

104 This is one of the basic objections against the declaration of the City of Toledo regarding Lake Erie, see above, text to fn.61. 105 See United Nations, Harmony with nature (fn.2). 106 Verordnung of 29 March 2016. Court litigation in Italy is pending on this issue.

21

activities. The situation might be different in the United States, though the evolution of the Lake Erie

situation107 appears to confirm that the situation is similar to that in Europe.

These observations do not prevent municipalities to take vigorous actions to preserve and protect

the environment within their boundaries. In the same way as a municipality could bar certain streets

or even the whole city from car traffic - Zermatt in Switzerland is an example - it could ban the use of

toxic chemicals, the planting of genetically modified plants, the discharge of pollutants into its

waters, the incineration of waste or the activity of polluting industries in its boundaries, or order the

separate collection of waste and the connection to a district heating system. All these rights, though,

have little to do with the rights of nature.

Concluding remarks

Declarations by courts or by legislative acts that rivers, natural areas or other assets of the natural

environment are legal entities or legal persons might have a symbolic value. However, per se, they do

not yet protect the environment. In order to ensure that such declarations are made operational, it is

necessary to get the public authorities, parliamentary bodies and the administrations on board to

protect, preserve and improve the environment. This is time-consuming, binds considerable human

and financial resources and will have to overcome vested interests.

The US law professor Richard Lazarus quite rightly stated with regard to the Lake Erie case that it is

more important to elect officials - members of local, regional and national parliaments, officials in

government, in environmental and other agencies etc , who initiate, implement and support

environmental protection matters rather than to fight law suits108. Within the European Union, the

main lesson to learn from the rights-of-nature discussion is the need to improve access to courts in

environmental matters, in particular in order to overcome the problem that public authorities which

should ensure the application and enforcement of environmental legislation, turn a blind eye, look

away and side with vested interests and polluters. The full application of environmental legislation in

Europe remains the most important problem for environmental law and this includes the question of

who protects the environment against administrative inertia, passivity or open collusion with

polluters. Ensuring sustainability, halting the loss of biodiversity, reducing the emission of

greenhouse gases, stopping ocean pollution, cleaning up rivers and lakes etc etc - all objectives that

are more or less accepted by all countries - requires another policy of governments, parliaments,

economic operators and civil society; the realization of these objectives takes years, if not decades

and costs huge sums of money. Court decisions on the right of nature can help raising awareness, but

are limited in causing themselves a shift in policies towards the realization of these long-term

objectives.

107 See text to fn.61. 108 Richard Lazarus, Rights for Lake Erie? Harvard Law Review,Blog, of 1 April 2019. blog.harvardlawreview.org/author/richardlazarus/ (assessed 3-9-2019).

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Abstract

This study, commissioned by the European Parliament ’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the JURI Committee, explores the concept of “R ights of Nature” (RoN) and its different aspects in legal philosophy and international agreements, as well as in legislation and case-law on different levels. The study delves on the ideas of rights of nature in comparison with rights to nature, legal personhood and standing in court for natural entities, and analyses ECtHR and CJEU case-law on access to justice in environmental decision-making. It emphasises, in particular, the need to strengthen the requirements for independent scientific evaluations in certain permit regimes under EU law. The study also highlights the crucial importance of promoting the role of civil society as watchdog over the implementation of EU environmental law by way of a wider access to justice via both the national courts and the CJEU, which is also in line with the political priorities for delivering the European Green Deal.

CAN NATURE GET IT RIGHT?

A Study on Rights of Nature in the European Context

This document was requested by the European Parliament's Committee on Legal Affairs. AUTHOR Jan DARPÖ, emeritus professor in environmental law at Faculty of Law, Uppsala Universitet, Sweden; chair of the Task Force on Access to Justice under the Aarhus Convention between 2008 and 2021. ADMINISTRATOR RESPONSIBLE Eeva PAVY EDITORIAL ASSISTANTS Fabienne VAN DER ELST LINGUISTIC VERSIONS Original: EN ABOUT THE EDITOR Policy departments provide in-house and external expertise to support EP committees and other parliamentary bodies in shaping legislation and exercising democratic scrutiny over EU internal policies.

Manuscript completed in March 2021 © European Union, 2021 This document is available on the internet at: http://www.europarl.europa.eu/supporting-analyses DISCLAIMER AND COPYRIGHT The opinions expressed in this document are the sole responsibility of the authors and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the European Parliament is given prior notice and sent a copy. © Cover image: Jan DARPÖ, 2020, taigaphoto.se

Can Nature Get It Right?

PE 689.328 3

CONTENTS

LIST OF ABBREVIATIONS 5

EXECUTIVE SUMMARY 7

1. INTRODUCTION 9

1.1. About the study 9

1.2. Words of thanks 10

2. WHAT DOES “RIGHTS OF NATURE” MEAN? 11

2.1. Introduction 11

2.2. Rights of Nature in legal philosophy 13

2.3. Rights of Nature at an international level 16

2.4. Rights of Nature at a constitutional level and in national and sub-national legislation 17

2.5. Legal personhood and Rights of Nature in practice 19

2.6. Interim conclusions on Rights of Nature 22

3. A HUMAN RIGHT TO A HEALTHY ENVIRONMENT 24


3.2. The European Convention on Human Rights and Fundamental Freedoms 26

3.3. When the State undertakes measures on behalf of the environment 27

3.4. Protection against environmental harm 28

3.5. Good Governance under the Convention 30

3.6. Victims and standing 31

3.7. The Aarhus Convention 32

3.8. The compliance mechanism of the Aarhus Convention 33

3.9. Interim conclusions on ECHR and Aarhus 34

4. EU LAW ON THE ENVIRONMENT 36


4.2. EU regulations and directives 37

4.3. The doctrine of direct effect 39

4.4. The Aarhus Convention and EU law 40

4.5. Direct action to the CJEU 42

4.6. Interim conclusions about EU Law on the environment and access to justice 44

5. A CRITICAL APPROACH TO RIGHTS OF NATURE IN A EUROPEAN CONTEXT 46


5.2. Arguments in the Rights of Nature discourse 48

IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs

4 PE 689.328

5.3. Substantive or procedural aspects of Rights of Nature 50

5.4. Legal personhood and standing 53

5.5. Enforcement 56

5.6. Nature science and evidence in court 58

5.7. Rights of Nature is not a revolution, but… 60

6. A SUMMARY OF PROPOSALS FOR THE FUTURE 61

7. CLOSING REMARKS 64

REFERENCES 65


PE 689.328 5

LIST OF ABBREVIATIONS

BAT

CBD

Best Available Technology

Convention on Biological Diversity

CELDF Community Environmental Legal Defense Fund

CFR Charter of Fundamental Rights of the European Union

CJEU Court of Justice of the European Union

DBD Damage to Biological Diversity

ECHR European Convention of Human Rights and Fundamental Freedoms

ECtHR European Court of Human Rights

EIA Environmental Impact Assessment

ENGO Environmental Non-Governmental Organisations

EU European Union

GARN

IUCN

Global Alliance for the Rights of Nature

International Union for Conservation of Nature

PPP Polluter Pays Principle

RoN

UN

Rights of Nature

United Nations

UNDRME Universal Declaration of the Rights of Mother Earth

UNECE

UNESCO

SLAPP

United Nations Economic Commission for Europe

United Nations Educational, Scientific and Cultural Organization

Strategic Lawsuit Against Public Participation

TEU Treaty on European Union

TFEU Treaty on the Functioning of the European Union


6 PE 689.328


PE 689.328 7

EXECUTIVE SUMMARY The Rights of Nature (RoN) school of thought is wide, containing a variety of different concepts. Firs t of all, there is a legal-philosophical aspect, where it is highlighted that RoN means a paradigmatic shift in attitudes towards nature, from today’s anthropocentric approach to an ecocentric one. Closely linked to this discourse is environmental constitutionalism, whose proponents argue that RoN should be included in an overarching piece of legislation in order to give a long-lasting constitutional and ethical value to the protection and conservation of nature. Other scholars focus on the representation issue, arguing that if natural entities were granted legal personhood, this would not only give nature standing in court, but also give courts a wider scope to take nature science evidence into consideration in deciding on precaution and remediation. Finally, RoN is described as a means for indigenous peoples to uphold their rights to traditional use of natural resources, while still preserving biodiversity.

The aim of the study is to analyse RoN from a legal-scientific viewpoint in order to see whether this new concept might bring added value to the field of EU environmental law. Each of the aspects of RoN is analysed with a view to determining its key elements. In Chapter 2, some of the different schools of thought within the RoN discourse are introduced. After this comes a description of different legislation on RoN, from the constitution in Ecuador, and the laws of Te Urewara and Whanganui in New Zealand, to local bylaws in the USA and elsewhere. Different cases granting legal personhood to natural entities are presented, most importantly the Vilcabamba River case in Ecuador , the Atrato River case in Colombia, and the Ganges/ Yamuni River and Glaciers cases in India.

The study also covers an investigation about a human right to a healthy environment (Chapter 3). Where such a right can be established for a wider circle of people without a link to direct damage to individuals, this idea relates closely to RoN. However, contrasting with several other international instruments, the European Convention on Human Rights (ECHR) does not include any such protection. Even though its provisions have been expanded in a “greening” direction in the case-law of the European Court of Human Rights (ECtHR), the Convention is still firmly rooted in the idea about a “direct victim”, whose right to life and respect for private and family life is protected. This concept may be challenged by the many climate cases throughout Europe, but only time can show if the Strasbourg Court is willing to alter its position without support from the Parties to the Council of Europe.

In contrast, the UNECE Aarhus Convention covers all kinds of legislation with an impact on the environment. It established three “pillars” of procedural rights in environmental matters, namely the rights to information, public participation and access to justice. The EU and all its Member States are Parties to the Convention. When Aarhus Convention is combined with fundamental principles of EU law developed in the case-law of the European Union Court of Justice (CJEU) – such as the principles of direct effect and of judicial protection – the effect has been forceful. In the EU today, it is established that members of the public – including recognised Environmental Non-Governmental Organisations (ENGOs) – shall have the possibility to challenge administrative decisions and omissions in environmental matters by going to court. This is the subject of Chapter 4 of the study, where environmental protection in substantive EU law is also dealt with, both on the const itut ional level (TEU and TFEU) and in secondary legislation in regulations and directives. It is contended that the “intrinsic value of nature” – although not found in an express provision on the constitutional level in the EU – is contained in the nature conservation directives and the case-law of the CJEU.


8 PE 689.328

Chapter 5 is finally the operative part of the study where the RoN concept is evaluated from the perspective of EU law on the environment. On a general level, the RoN concept is criticised for being mostly symbolic and built on anecdotal evidence. What is more important, though, is that the proponents of RoN do not succeed in showing that this is a paradigmatic shift in environmental regulation. Instead, the history of RoN shows that it faces the same reality and problems as the ordinary laws on the environment, most importantly weak enforcement. Further, the idea of giving natural entities “legal personhood” is compared with the EU model for protecting environmental interests through ENGO representation and found not to entail any systematic advantages from a European perspective. Having reached this conclusion, however, the study also emphasises the crucial importance of strengthening the role of civil society as watchdogs over the implementation of EU law in environmental matters by way of a wider access to justice via both the national courts and the CJEU.

But even so, the RoN concept offers new ideas that can be adapted to the present institutional or legal scope of the EU system. One example of an idea borrowed from the RoN school of thought is to introduce a provision on the constitutional level in the EU about the intrinsic value of biodiversity and some basic principles of ecological integrity. As for secondary legislation, it is proposed that stronger adaptivity requirements be introduced in relevant directives, as well as stricter environmental and ecological standards. The idea of “ecological impact tracing” also seems interesting. A comprehensive overview of the nature conservation directives ought to be performed, and the requirements for independent scientific evaluations should be strengthened in certain permit regimes under EU law. The creation of national funds for the remedying of damage to biological biodiversity is further mentioned. As for enforcement, it is suggested that the Commission tighten up the demands on the Member States’ courts to fulfil their obligations under Article 267 TFEU to ask for preliminary rulings from the CJEU. Stricter criteria for the enforcement of environmental provisions and the creat ion of independent enforcement authorities would also be worth investigating further. Another idea that is discussed is the establishment of an Environmental Ombudsman on both the EU and national levels . One could also contemplate different measures both to strengthen the position of science in the administration and courts and to improve the education and competence of the courts. It is finally of vital importance to introduce strict sanctions for administrative inertia in relation to obligations under EU environment law.


PE 689.328 9

1. INTRODUCTION

1.1. About the study

I must admit that I was a bit puzzled when asked to do this study. Why appoint a traditional legal scholar to analyse a concept which is totally new, even ground-breaking? But on second thought, perhaps a traditional legal scholar is the right person for this kind of task, since paradigmatic new concepts also have to be understood by those who are affected and by the lawyers who are supposed to apply the new norms. This is what I have tried to do in this study, that is, to give an honest description of the concept “Rights of Nature” (RoN) in order to analyse what added value it might bring to the legal order of the European Union (EU).

It should be noted from the outset that RoN is a very wide subject and that this discourse of legal philosophy comprises a number of different aspects. Along with the most obvious ones – that is , the rights of nature in comparison with rights to nature, legal personhood and standing in court for natural entities – one can find discussions about principles of environmental law and constitutionalism, the human right to a healthy environment, nature science and law, climate cases , ecocide, the competence of the courts, and many more subtopics. There is also a distinction between substantive and procedural aspects of RoN. In this study, I have focused on those issues which I think are instrumental for the RoN concept and its encounter with the EU system of environmental law. Other issues are touched upon in this context, whereas some topics have been excluded. Climate cases are only mentioned and I have not delved into animal rights, as that discourse is slightly different to RoN.1 The legal concept of “ecocide” is another interesting issue that I leave aside. These delimitations can as always be criticised, but this is a choice that lies in legal scholarship, namely , to cover what one considers most important for a certain area of law.

The study is structured as follows. In the first part (Chapter 2), I describe the concept of “rights of nature” (RoN) and the surrounding legal discourse. Next, in Chapter 3, the European Convention on Human Rights and Fundamental Freedoms (ECHR) is pictured together with the case-law of the European Court of Human Rights (ECtHR). The question here is whether the Convention contains a “human right to a healthy environment”. In the last two sections of this chapter, the so-called Aarhus Convention is touched upon with its three “pillars for environmental democracy”, that is, the rights to information, public participation and access to justice. EU law on the environment is the subject of Chapter 4, focusing on environmental rights and obligations and their implementation in the Member States. Chapter 5 is at the centre of the study as it is here that the critical analysis of the RoN concept is performed, together with a discussion about what added value it may br ing to the legal order of the Union. In this context, some interesting ideas from the RoN discourse are extracted and analysed in order to use them within the framework of EU environmental law. The suggestions from that chapter are thereafter summarised and listed in Chapter 6, after which the study is concluded with some final remarks (Chapter 7).

1 This topic is, however, thoroughly dealt with in a coming issue of Scandinavian Studies in Law (Sc.St.L.).


10 PE 689.328

1.2. Words of thanks

I am deeply grateful to a group of “first readers”, namely Merideth Wright, former judge of the Vermont Environmental Court and distinguished judicial scholar at the Environmental Law Inst itute (Washington DC, USA) , Carol Day, solicitor in environmental law (London, UK) , Malin Brännström, juris doctor of law and director of the Silver Museum in Arjeplog (Sweden), Ludwig Krämer, honorary professor of German and European environmental law at the Universität Bremen, Kari Kuusieniemi, president at the Finnish Supreme Administrative Court (Korkein hallinto-oikeus), and Julien Bétaille, associate professor at Université Toulouse 1 – Capitole in France. Thank you all for your valuable comments, proposals for clarification and alternative perspectives!

Since the summer of 2020, I have attended a number of seminars on issues related to the study, organised by Université Toulouse 1 – Capitole, the Stockholm Environmental Law and Policy Centre, Vermont Law School, World Commission on Environmental Law under the International Union for Conservation of Nature (IUCN), the European Court of Human Rights (ECtHR) and Marie Toussaint at the European Parliament. Apart from the literature on the subject, I have also read a number of research papers and project descriptions provided to me by my colleagues in the academic community, to whom I direct my sincere gratitude. I am also grateful to Alexander Moore for excellent editorial assistance.


PE 689.328 11

2. WHAT DOES “RIGHTS OF NATURE” MEAN?

2.1. Introduction

The concept Rights of Nature (RoN) follows two basic lines of reasoning. First, since the recognition of human rights is in part based on the philosophical belief that those rights emanate from humanity 's own existence, then logically, so do inherent rights of the natural world. A second and more pragmatic argument asserts that humanity's own survival depends on healthy ecosystems, and so, protection of nature's rights in turn advances human rights and well-being.

In the origin story of the RoN discourse, this school of thought originates from Chr istopher Stone’s article “Should trees have standing?”, published in Southern California Law Review in 1972.2 He wrote the article to make an impact in the ongoing case Sierra Club v Morton in a US federal court in order to award the plaintiff standing to challenge a decision about the development of a ski resort in the Mineral King valley in the Sierra Nevada mountains of California.3 Although the majority of the court rejected the lawsuit, Justice William O. Douglas wrote a famous dissenting opinion in which he referred to Stone’s idea, proposing that environmental objects should be granted legal personhood and thus be able to defend themselves in court through representation by the public. This idea was picked up and developed during the following 30 years by academic scholars such as Roderick Nash, Thomas Berry and Cormac Cullinan. However, the concept did not win general traction, which is

2 Time line according to the Global Alliance for the Rights of Nature (GARN); https://therightsofnature.org/timeline/ 3 Sierra Club v. Morton, 405 U.S. 727 (1972).

KEY FINDINGS

• The Rights of Nature (RoN) school of thought is wide, containing a variety of different concepts.

• To begin with, there is a legal-philosophical aspect, where it is highlighted that RoN means a paradigmatic shift in attitudes towards nature, from today’s anthropocentric approach to an ecocentric one.

• Closely linked to this discourse is environmental constitutionalism, whose proponents argue that RoN should be included in international law or national constitutions in order to give a long-lasting value to the protection and conservation of nature. Examples used to illustrate this are the 2010 Universal Declaration of the Rights of Mother Earth (UDRME) and Article 71 in the 2009 Ecuadorian Constitution proclaiming the right of Pacha Mama.

• Another key component of the RoN discourse is to award natural entities “legal personhood” in order to provide for standing in court and a wider possibility to take nature science evidence into consideration in deciding on environmental matters. Such examples exist legislation and jurisprudence in Latin America, in Aotearoa New Zealand, India and other countries. Most of these cases have, however, been given under specific cultural and anticolonial circumstances, and the outcomes are a mix of failures and successes.

• Finally, RoN is described as a means for indigenous peoples to uphold their rights to traditional use of natural resources, while still preserving biodiversity.


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usually explained by the fact that it came in an era when modern environmental legislation was introduced in the Western world. With these laws also came the founding of environmental protection agencies, and environmental non-governmental organisations (ENGOs) were awarded standing in court to challenge decision-making under those laws – at least to a certain extent.

The resurrection of RoN ideas came at the beginning of the 2000s, when the Community Environmental Legal Defense Fund (CELDF) – from the beginning, a traditional public interest law firm – launched a campaign for the adoption of a “bill of rights” for nature at a local level in the USA. First in this respect was the small community of Tamaqua Borough in Pennsylvania, drafting a R ights of Nature Law in order to prevent the dumping of toxic waste into the community in 2006. Having developed into an organisation for bringing together public interest litigators with different actors such as communities, civil society and governments, the CELDF together with the Pachamama Alliance in San Francisco – an organisation for the empowering of indigenous tribes in the Amazonas – joined forces with radical and anti-colonial oriented politicians in Ecuador for the introduction of rights for nature in the Constitution in 2008. To date, this is the only Constitution in the world establishing RoN.

The year after, Bolivia adopted a new Constitution granting each citizen the right to “protect and defend an adequate environment for the development of living beings”. The 2009 Const itut ion did not establish RoN, but it paved the way for the Law on the Rights of Mother Earth (Madre Tierra) the following year. Also in 2009, the organisation Global Alliance for the Rights of Nature (GARN) was founded.

In 2010, in this prevailing sentiment, the first World People’s Conference on Climate Change and the Rights of Mother Earth was held in Cochabamba, Bolivia, adopting the Universal Declarat ion of the Rights of Mother Earth (UDRME). Also this year, the General Assembly of the United Nations (UN) proclaimed 22 April as International Mother Earth Day. In so doing, the State Parties acknowledged that the Earth and its ecosystems are our common home and expressed their conviction that it is necessary to promote “Harmony with Nature” in order to achieve a just balance among the economic, social and environmental needs of present and future generations. The first report of the Secretary-General on Harmony with Nature was published already in 2010 and the first resolution on the subject was adopted by the General Assembly the same year.4

The year after, the first court case under the Ecuadorian Constitution was decided concerning the protection of the Vilcabamba River. In 2012, Bolivia adopted another RoN law: the Framework Law of Mother Earth and Integral Development to Live Well (“buen vivir”). This was also the year when the national government and the Maori people of New Zealand reached their first RoN agreement, awarding the Whanganui River legal personhood and guardianship by a joint council. Further, the International Union for the Conservation of Nature (IUCN) adopted a policy to incorporate the RoN into its decision-making processes. Two years later, in 2014, a second RoN act was passed in New Zealand after a settlement between the government and the Tuhoe people. The object this time was Te Urewara, a former national park, which was given “legal recognition in its own rights”. And again in 2014, the first RoN tribunal organised by GARN was held in Quito, Ecuador.5

4 The “Harmony with Nature” reports have been issued annually since 2010, out of which the 12th report was adopted by

the UN General Assembly in late 2020 ; http://www.harmonywithnatureun.org/chronology/ 5 In the RoN school of thought, it is also often mentioned that in 2015, Pope Francis issued the encyclical (circular letter)

Laudato Si (“praise be to You”), subtitled “on care for our common home”, in which he criticises consumerism and irresponsible developments, and called for swift and unified global action against environmental degradation and global warming.


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Since then, many local bylaws on the RoN have been passed, mostly in the USA but also in Latin America (Mexico City, Colima), New South Wales in Australia (Blue Mountain Council), Spain (Los Alcazares) and the Netherlands (Dongeradeel). Most well-known of these is perhaps the Lake Erie B ill of Rights which was passed by the city of Toledo (Ohio) in 2019, recognising the lake’s right “to exist , prosper and evolve naturally”. Also, numerous tribes of indigenous peoples in the Americas have awarded legal rights to nature or natural objects, such as wild rice. For example, in 2016 the Gr izzly Treaty recognising the bear species’ right to exist in a healthy ecosystem was s igned by more than 200 US and Canadian tribal nations. Further, high profile cases on RoN have been brought in many countries, out of which Colorado River v. State of Colorado (2017)6 perhaps is the most well-known. As a result, rights of natural systems – mostly rivers and forests – have been recognised by courts on different levels in Colombia, Mexico, Chile and Bangladesh. In 2017, the High Court of Uttarakhand in India recognised that the Ganga and Yamuna rivers, glaciers, and other ecosystems are legal persons with certain rights. Finally, it is worth mentioning that in 2019 Uganda enacted the National Environmental Act, recognising that nature has “the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution”.

From this short history, one may conclude that RoN is a broad concept, containing a variety of different aspects. First of all, there is a legal-philosophical aspect, where it is highlighted that RoN means a paradigmatic shift in attitudes towards nature, from today’s anthropocentric att itude to an ecocentric one. Closely linked to this discourse is environmental constitutionalism, whose proponents argue that RoN should be included in an overarching piece of legislation in order to give a long-lasting constitutional and ethical value to the protection and conservation of nature. Other scholars focus on the representation issue, arguing that if natural entities were granted legal personhood, this would not only give nature standing in court, but also a wider possibility to take nature science evidence into consideration in deciding on precaution and remediation. Finally, RoN is described as a means for indigenous peoples to uphold their rights to traditional use of natural resources, while still preserving biodiversity. In the following, I give a general presentation of each of these aspects of RoN, after which some preliminary conclusions are made as an introduction to the discussion in Chapter 5.

2.2. Rights of Nature in legal philosophy

A starting point for the legal philosophy on RoN is that the traditional notion of the Rule of Law in our societies must include and recognise the reality of planetary boundaries. This in turn means that the environment should take precedence, with humans second and the economy third. The background to this is evidently the dire state of the environment in the world. Climate change has become the key issue of our time, and biodiversity is threatened all over the planet through mass extinction of species and natural habitats. According to estimates, approximately 60% (15 out of 24) of ecosystem services are degraded or used unsustainably, including fresh water, air and the utilisation of natural resources.7 This means Earth’s capacity to sustain human life and many other living organisms is significantly compromised, and the situation continues to worsen due to human activities.

According to the RoN proponents, these emergencies have the same root cause: old paradigms of thinking, structures and systems that separate human beings from the rest of the interconnected web 6 Colorado River Ecosystem v. State of Colorado; no. 17-cv-02316-NYW (D.Colo. Dec. 4, 2017). 7 Our life insurance, our natural capital: an EU biodiversity strategy to 2020. Communication from the Commission to the

European Parliament, the Council, the Economic and Social Committee and the Committee of the Region. European Commission, Brussels, 3.5.2011 COM(2011) 244 final, page 1.


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of life.8 Therefore, we need to perform a quantum leap in governance in order to move towards living in harmony with nature. This must necessarily include the legal system as a whole and the not ion of “rights”. Learning from history, old systems of oppression – be it that of slaves, indigenous and colonised peoples, women or sexual minorities – were abolished through shifts in paradigms, creating rights for those discriminated against. In view of this, there is a need to establish a governance regime for the enhancement of the health of ecological systems, that is, a Rule of Law for Nature. This notion of the “eco-constitutional state” is in its very nature opposite to the dominat ing paradigm of today with the Western liberal concept of the rule of law focusing only on the well-being of humans. Instead, the Rule of Law for Nature focuses on the well-being of both humans and nature in a symbiotic relationship.9 Thus, if we abandon the erroneous beliefs that we are separate from the natural Earth and superior to all beings, and instead embrace our participation within the community of life, exciting new legal possibilities will soon emerge.10

Another main point for RoN supporters is that modern environmental law has not made much difference in preventing the destruction of the planet. Some go even further, claiming that modern environmental law is part of the problem as it is a piece of a structure of law which – rather than focusing on protecting people, workers, communities, and the environment – focuses on endless growth, extraction, and development. Regarded this way, environmental law makes sustainability illegal. Proponents of RoN further argue that as long as we have an anthropocentric view of nature and natural resources, regarding them as “property” or “objects”, we will fail to tackle the most important environmental problems of our time. Further, weak enforcement is not the main obstacle, since legislation only aims at upholding the system by way of mitigating the negative impacts of economic growth. With its cultural and socio-economic context, modern Western law is merely part of the enclosure of nature and environmental law has never intended to turn this process around. Nature as a whole has never been on the radar of legal systems which instead fragment it into different natural resources or one particular medium at a time, such as soil, water, air, or plants. Even more crucially, environmental objectives are set into competition with economic and social objectives. This means that irrespective of the number of new environmental regulations, those reforms will never be enough to override legislation supporting economic growth, private property and state sovereignty. The basis of current environmental legislation can therefore be summarised as environmental reductionism, manifested by compartmentalisation, fragmentation and anthropocentrism.11

In the RoN discourse, a number of ideas have been introduced in order to change our paradigmatic views on the relationship between humans and nature. One of the founders of this philosophy was Thomas Berry, who introduced the concept of “Earth Law”. He advocated a new jurisprudence to uphold the rights of nature, arguing that any component of the Earth community has three rights: the right to be, the right to habitat, and the right to fulfil its role in the ever-renewing processes of the Earth community.12 In his view, the universe is the primary law giver and rights originate where existence originates. The only laws that humans should create and observe are therefore those derived from the natural laws that govern life on Earth. His successors have developed these ideas into “Earth System Law” or “Earth Jurisprudence”, broadening the universe of entities capable of

8 Carducci et al (2020), at. p. 59. 9 Bosselmann (2013) at p. 83. 10 Cullinan (2013) at p. 102. 11 Bosselmann (2013) at p. 84. 12 See literature list; Berry, T: Rights of the earth: We need a new legal framework which recognises the rights of all living beings

(2011).


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qualifying as legal subjects in their own right to include both natural and artefactual non-humans. 13 They talk about the “subjectification” of nature in contrast to “objectification”, thus not only concerned with defining nature’s rights, but also redefining the duties of humankind. Theories closely attached to these are “Wild Law” and the discussion about deep or shallow ecology. Ir respective of these different perspectives, the proponents suggest a new hierarchy of rights where RoN s it at the apex and thus is of a higher order than all other rights, such as human rights or the rights of States.

In this vein, it was stated in the 2020 study of the European Economic and Social Committee (EESC) entitled Towards an EU Charter of the Fundamental Rights of Nature that the recognition of RoN is crucial in making legal systems proactive in tackling our emergency challenges, which would entail a radical change in the entire legal system, by guaranteeing Nature's primacy over economic and political interests.14 Another advantage that was emphasised is that people would also be empowered to bring cases on behalf of nature to courts where the actual merits of the case would be heard.15 This in turn requires close cooperation between the nature sciences and law, thus recognising that legal rules are part of a natural system:16

The self-ordering of the universe can be understood as a “Great Jurisprudence”, which can be discovered by inductive reasoning based on close observation and experience of Nature. This Great Jurisprudence can be used to inform and guide the development of human jurisprudence (“ Earth jurisprudences”) that may in turn inform the development of laws that give effect to the m (“ wild laws”). For example, the stupendous biological diversity that surrounds us is an indication that the universe has an inherent tendency to diversify. This suggests that we should be wary about enacting laws that seek to impose unnecessary homogeneity because we may well be working against the fundamental principles of the system of which we are part.

All this presupposes interdisciplinary collaboration between lawyers, scientists and indigenous and local communities that have a deep understanding of ecosystems. It is also stated that for law to be truly aligned with truth and justice, we must address the way law is held in our society, in that we move towards a justice system that fosters greater collaboration, problem solving and healthy relationships with all of life.17 In summary:18

The rights of nature movement represents the practical instantiation of ideas contained in Earth system law. First, its focus on obtaining legal recognition for non-human natural entities, both individually and on a holistic basis, works to reshape law's anthropocentric orientation to be come more inclusive of the range of subjects worthy of protection. Second, it respects the diversity of relationships in the world through its acknowledgment that entities exist not in isolation but in thick webs of interdependency. Finally, the movement pays tribute to complexity in the sense that it seeks to respond to the exigencies of the Anthropocene through legal interventions that more accurately capture the dynamic character of human-environment interactions. By embodying these tenets of Earth system law and rejecting “problematic” human-nature binaries, the rights of nature movement actively combats inter and intra-generational and inter-species injustices.

13 Gellers (2020) at p. 2. 14 Carducci et al (2020) at p. 14. 15 Carducci et al (2020) at p. 62. 16 Carducci et al (2020) at p. 103. 17 Carducci et al (2020) at p. 63. 18 Gellers (2013) at p. 4.


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2.3. Rights of Nature at an international level

As was already mentioned at the beginning, there currently exist several “soft law” instruments recognising the intrinsic value of nature, such as the preamble to the 1992 Rio Declaration: “Recognizing the integral and interdependent nature of the Earth, our home”.19 Another is the E arth Charter, an international declaration adopted in 2000 in Rome.20 The Charter’s ethical vision proposes that environmental protection, human rights, equitable human development, and peace are interdependent and indivisible. It contains 16 principles under four headings:

I. Respect and Care for the Community of Life

II. Ecological Integrity III. Social and Economic Justice IV. Democracy, Non-Violence and Peace

Under the first heading, principle 1 is “Respect Earth and life in all its diversity”. Principles 5–8, under Ecological Integrity, aim to protect and restore the integrity of Earth's ecological systems, with special concern for biological diversity and the natural processes that sustain life; prevent harm by applying a precautionary approach; adopt patterns of production, consumption and reproduction that safeguard Earth’s regenerative capacities, human rights and community well-being; advance the study of ecological sustainability; and promote the open exchange and wide application of the knowledge acquired. The Earth Charter has been formally endorsed by many international organisations, including UNESCO and the IUCN, and over 250 universities around the world.

As noted, the Universal Declaration of the Rights of Mother Earth (UDRME) was adopted in 2010 at the World People’s Conference on Climate Change and the Rights of Mother Earth in Cochabamba, Bolivia. It recognises that all peoples and nations are part of Mother Earth, an indivisible, living community of interrelated and interdependent beings with a common destiny. In the provis ions of UDRME, it is stated that Mother Earth is a living being and the rights of each being are limited by the rights of other beings. Thus, any conflict between their rights must be resolved in a way that maintains the integrity, balance and health of Mother Earth. Mother Earth and all beings of which she is composed, have a number of rights, among them: the right to life and to exist; the right to regenerate its bio-capacity and to continue its vital cycles and processes free from human disruptions; the right to water as a source of life and clean air; the right to be free from contamination and pollution; and the right to full and prompt restoration for violation of the rights caused by human activities. The UDRME also stipulates a number of obligations human beings have towards Mother Earth, namely, that all States, and all public and private institutions must:

• recognise and promote the full implementation and enforcement of the rights and obligations recognised in the Declaration;

• establish and apply effective norms and laws for the defence, protection and conservation of the rights of Mother Earth;

• empower human beings and institutions to defend the rights of Mother Earth and of all beings; and

• establish precautionary and restrictive measures to prevent human activit ies from causing species’ extinction, the destruction of ecosystems or the disruption of ecological cycles.

19 Rio Declaration on Environment and Development. UN General Assembly 12 August 1992;

https://www.un.org/en/conferences/environment/rio1992 20 Earth Charter 2000; https://earthcharter.org/courses/leadership-sustainability-ethics-lse-online-course/


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The Cochabamba meeting called on the UN General Assembly to adopt the Declaration as a common standard of achievement for all peoples and all nations of the world.21

2.4. Rights of Nature at a constitutional level and in national and sub-national legislation

The legal philosophy of the RoN is linked closely to environmental constitutionalism. The obvious arguments from its supporters is that if the RoN were awarded constitutional status, this would establish a long-lasting and superior legal value, as well as an ethical dimension to the protection and conservation of nature. Such a constitutional provision would have a direct effect on the understanding of black-letter law, and also play an educational role among the decision-makers and judges applying environmental law. It might finally redress the temporal misalignment between the environment and law, thereby adding an intergenerational aspect to the regulation. This way, RoN as part of environmental constitutionalism would function as a procedural guideline for conducting legislative and administrative processes:22

In the environmental context it would entail: the need for government to be subjected to the general law and, more specifically, to environmental laws; the need for government to only act in accordance with the law; the ability of the courts to oversee government actions, including their administrative and legislative functions that are relevant to environmental issues; the need for government to be accountable and to exercise just administrative action and general good environmental governance practices; and the process to make good environmental laws.

Backed by a constitutional provision, courts may, for example, be able to set aside a decision authorising the construction of a new coal-fuelled power station on the basis that the decision-maker does not have the power to authorise activities that violate the functioning of vital natural systems by exacerbating climate change. In other words, it would make it unlawful for decision-makers to impose liabilities on others – including future generations – by allowing natural limits to be transgressed.23 Also, as decisions on whether the rights of humans prevail over those of natural entities would be balanced for the benefit of the planet as a whole, fundamental changes in administrative and just ice systems would be required. It would be necessary to establish publically funded institutions to represent the interests of nature and new courts or other institutions with the sufficient knowledge and understanding to adjudicate conflicts between economic development and nature in order to promote the greater good of the whole community.24

However, a “real” RoN protection at constitutional level is, to date, only given in one country, that is in Ecuador. For obvious reasons, the Ecuadorian Constitution has gained much attention in the RoN movement. Article 71 proclaims the right of Pacha Mama:25

Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and

21 As of 11 February 2021, there is actually also a Declaration of the Rights of the Moon;

https://www.earthlaws.org.au/aelc/moon-declaration/ 22 Kotzé (2013) at p. 135. 23 Carducci et al (2020) at p. 104. 24 Cullinan (2013) at p. 104f. 25 Translation from Spanish of the Ecuadorian Constitution and the Bolivian Law on the Rights of Mother Earth is provided

in Humphrey at p. 463f.


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evolutionary processes. All persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature.

As already noted, the 2009 Bolivian Constitution stated the aim of protecting and defending an adequate environment for the development of living beings. Though the Constitution as such does not recognise RoN, the 2010 Law on the Rights of Mother Earth (Madre Tierra) does just that in Article 2:

The State and any individual or collective person must respect, protect and guarantee the rights of Mother Earth for the well-being of current and future generations.

In Article 7, seven rights of Mother Earth are recognised, the right:

• to life • to the diversity of life • to water • to clean air • to equilibrium • to restoration • to pollution-free living

The law also defines the duties necessary for upholding the rights of Mother Earth: The State has the duty to develop policies that will “prevent human activities causing the extinction of living populations, the alterations of the cycles and processes that ensure life, or the destruction of livelihoods, including cultural systems that are part of Mother Earth” (Article 8). Further, the people of Bolivia and public and private legal entities have the duty to “uphold and respect the rights of Mother Earth” (Article 9).

The legislation in Aotearoa New Zealand under the agreement between the Crown and the Maori tribes of Te Urewara and Whanganui has a background and unique design of its own.26 First of all, the agreements and the subsequent legislation were part of a mediation and reconciliation process in order to atone for all wrongs that have been made to the indigenous peoples since the Treaty of Waitangi in 1840. Another important background factor is the common law idea of “ownership” to real property which only allows private subjects to obtain “fee simple” to the land. Against this backdrop, the Crown was not willing to transfer ownership of the areas to the tribes, which is why the Te Urewara National Park and Whanganui River became entities in their own rights. The Whanganui River Settlement Agreement (2012 and 2014) is based on the notion of “Ko au te awa, ko te awa ko au” (“I am the river and the river is me”), recognising the intrinsic value of the river (Tupua te Kawa). Any person responsible under a wide array of statutes is obliged to recognise and work with this aim in mind. An official guardian has been designated, namely a board (Te Pou Tupua) with representatives from the Crown and the tribes along the river. A strategy group has likewise been established that will work with the drawing up of a Whole of River Strategy, with a fund created for the management and restoration of the river. The chosen solution can therefore be characterised as having transferred the title to the river from the Crown to the “river itself” (Te Awa Tupua).

Te Urewara is an old forest reserve (National Park) traditionally inhabited by Maor i t r ibes that were not parties to the 1840 Treaty of Waitangi. An agreement between the government of New Zealand and the tribes was signed in 2013, resulting in the recognition that the area “holds title to its own

26 The description of the settlements and legislation concerning the Te Urewara National Park and the Whanganui River is

mainly after Iorns Magallanes (2015) and Sanders (2017). It should be noted that a similar settlement was made in 2017 concerning Mount Taranaki and the surrounding area.


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land”. The settlement also included principles for the management of the forest and a board was established in order to recognise and reflect Tūhoetanga (Tūhoe identity and culture). The purpose of the Te Urewara Act 2014 is to preserve the area in perpetuity in its natural state, identifying its values regarding indigenous ecosystems, cultural heritage, recreation, landform, and freshwater quality. The Te Urewara Board – where the majority of the seats will eventually go to the Maori tribes – can issue bylaws and permits for judicious use of the natural resources in the area. This stands in contrast with the previous regime in the National Park’s regulation, where all human activities were banned. However, such permits can only be granted under the condition that the preservation of the species concerned is not adversely affected. Thus, the Te Urewera settlement and legislation upholds the indigenous concept that nature can be protected in conjunction with proper managed human use, including that fauna may be sustainably harvested, while still being protected. Finally, it should be noted that in Aotearoa New Zealand legal personality is framed as recognising the prior, intrinsic identity of nature, which is made clear in Section 3 of Te Urewera Act:

Te Urewera

1. Te Urewera is ancient and enduring, a fortress of nature, alive with history; its scenery is abundant with mystery, adventure, and remote beauty.

2. Te Urewera is a place of spiritual value, with its own mana and mauri.

3. Te Urewera has an identity in and of itself, inspiring people to commit to its care.

2.5. Legal personhood and Rights of Nature in practice

In his 1972 article, Stone discussed the possibility of awarding legal personhood to natural objects under the heading “Should trees have standing?”. In the same vein, Justice Douglas in his dissent ing opinion in the case at hand proposed that it should be titled “Mineral King Valley v. Morton”, as the valley – not the organisation Sierra Club – was the real victim of the exploitation in the area. Stone argued that an entity may enjoy legal rights when:

1) an authoritative body is willing to review actions that threaten it. 2) it can institute actions in court on its own accord (judicial standing or locus standi). 3) the court considers injury to the entity when ordering preventive or remedial actions to be

taken by the responsible party.27

Thus, legal personhood to Stone meant, first of all, that that subject has legal standing to challenge decisions and activities that impact its being. In order to do so, the natural being needs someone to act on its behalf – a guardian. In Stone’s and his successors’ view, anyone should be able to defend the environment in such a manner. This is what in procedural terms is labelled “actio popularis”. Many municipal RoN bylaws in the USA build on this concept in order to provide for legal standing for residents to protect the local environment.28

As has been shown above, such standing may be granted directly in law. This is, for example, the case with the 1991 Resource Management Act in New Zealand, something which impacted the legislation

27 Stone (1972) at p. 458, see also Gellers (2020) at p. 3. 28 Boyd (2018) at p. 13.


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on Te Urewara and Whanganui.29 But the core idea of RoN is that this is not necessary, as such rights – like human rights and freedoms – should always enjoy court protection irrespective of any regulation on standing.

A study of the most important cases highlighted in the RoN discourse show a mix of either express standing in law or standing directly awarded by the courts. The Ecuadorian Constitution lacks rules on standing, making the rights stated in Article 71–74 not self-executing. The first case under those provisions was initiated in 2011 by two private individuals who lived close to an area where the authorities planned to expand a road (Wheeler v. Director de la Procuraduria General Del Estado de Loja, the “Vilcabamba River case”). The Wheeler-Huddle couple argued that the exploitation would have a negative impact on the nearby river Vilcabamba, also pointing to the fact that there was no environmental impact assessment (EIA) provided for the project. In 2012, the Provincial Court of Loja agreed with the plaintiffs and ordered the government to establish a plan for rehabilitation and remediation of the river and its surroundings. In this case, the court gave precedence to environmental interests above those of development. For other cases in Ecuador, however, the outcome has been the opposite. In the case concerning the El Condor Mirador Mining Project (2013), to which a permit was granted by the national Government in 2012, the Provincial Court of Pichincha gave precedence to the mining project instead of the conservation of the environment. In fact , the court gave a very restricted view on the protection under Article 71, as it viewed the conservation interest as “private” and that only already-protected areas fell under the Constitutional RoN provision. As a whole, the picture of RoN cases in Ecuador is not very positive, as many cases have been lost on the merits.30

The picture seems to be quite different in Colombia, a country which does not have a RoN provis ion in its Constitution or legislation at lower level. The leading example is the The Atrato River case (2016),31 initiated by the Parliamentary Ombudsman as an acción de tutela, which is an actio popularis for the protection of constitutional rights. The aim of the action was to stop illegal forestry in the area and the dumping of chemicals in the river. The Constitutional Court accepted the action and agreed with the Ombudsman in emphasising the close link between the environment and the cultural values of the indigenous tribes in the area, also referring to the Whanganui settlement and legislation in Aotearoa New Zealand. The Court ordered that a joint guardianship between the Government and the local tribes should be undertaken for the Atrato River basin. In a similar decision, the Colombian Supreme Court in 2018 declared that the Amazon River ecosystem is subject to rights of its own and may be a beneficiary of protection.32 These precedents have been followed by a range of court judgements at the regional level recognising rights of ecosystems and rivers, some of them result ing from tutelar actions launched by individuals.

In the USA, many RoN cases have concerned the legality of local and regional bylaws granting r ights to natural objects. Some of the municipal regulations have to date not been challenged in court , like Tamaqua Borough (Pennsylvania) and Shapleigh (Maine) for example. Many others – such as Mora County (New Mexico), Grant Township (Pennsylvania) and Bill of Rights of Lake Erie (Toledo) – have been quashed as unconstitutional. I have found very few cases where a natural object , as such, has 29 Daya-Winterbottom (2018) at page 131. 30 See Humphrey (2017), also Boyd (2018) at p. 15. 31 Tierra Digna y otros v Presidencia de la República y otros. Colombian Constitutional Court, ruling T-622 of 10 November

2016, Expediente T-5.016.242. The decision was released to the public in May 2017. Full text in Spanish; http://cr00.epimg.net/descargables/2017/05/02/14037e7b5712106cd88b687525dfeb4b.pdf

32 Dejusticia y otros v Presidencia de la República y otros. Colombian Supreme Court, ruling STC4360 of 4 May 2018. Full text in Spanish, available at https://cdn.dejusticia.org/wp-content/uploads/2018/01/Fallo-Corte-Suprema-de-Justicia-Litigio-Cambio-Clim%C3%A1tico.pdf ?x54537


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sued an administrative body or an operator in court. The case in the USA which became famous for being the first “real” RoN case in this sense – Colorado River Ecosystem v. State of Colorado (2017) – was withdrawn after a few months, following threats of financial sanctions sought by the Attorney General’s office against the plaintiff for abuse of process, claiming that the action taken was improper or frivolous. However, this picture must be nuanced in light of the many cases that have been brought by ENGOs such as different “river keepers”. They have brought a number of cases in order to challenge administrative decision-making on permits or to request remedial actions by polluters, beginning with Scenic Hudson Preservation Conference v. Federal Power Commission in 1965.33 In this case, standing was granted to the ENGO as the court decided that “those who by their activities and conduct have exhibited a special interest in such areas must be included in the class of aggrieved parties”. In other and subsequent cases, the ENGOs have either merged into existing cases already begun, or with the support of express rules on standing in federal law, allowing for “citizen suits”.34 Such provisions are included in, for example: the Clean Air Act (1970), the Clean Water Act (1972), the Endangered Species Act (1973), and the Resource Conservation and Recovery Act (1976).

In India, the Supreme Court beginning in the 1990s, has emphasised the importance of shifting from an anthropocentric to a ecocentric world view and that non-human species also have rights that need to be recognised and respected.35 This seems to be in line with a long history of Hindu sacred deities , regarded as juristic persons in Indian case law.36 In 2017, this perspective was expanded to environmental cases, when the High Court of Uttarakhand ruled in two cases concerning the Ganges/Yamuna Rivers and the Gangotri/Yamunotri Glaciers that natural objects enjoy rights similar to legal minors, stating:37

Rivers, Forests, Lakes, Water Bodies, Air, Glaciers and Springs have a right to exist, persist, maintain, sustain and regenerate their own vital ecology system. The rivers are not just water bodie s. The se are scientifically and biologically living.

In both cases, the High Court criticised the authorities for not having protected the environment, emphasising that the rivers Ganges and Yamuni are holy according to Hinduism. The Court therefore conferred guardianship responsibilities on several individuals within the State government of Uttarakhand, as well as individuals living in the neighbouring areas and representatives of the scientific community. According to the rulings, these guardians shall uphold the status of natural objects in order to promote the environment’s health and well-being. However, just a few months later, the Uttarakhand decisions were quashed by the Indian Supreme Court, which found the granting of legal personhood in these cases unclear and outside the competence of the High court .38 Another landmark RoN judgement in the region was issued in Bangladesh in 2019, when the High Court granted all rivers with legal personhood and therefore the right to have legal protection.39

33 Scenic Hudson Preservation Conference v. Federal Power Commission. US Court of Appeals, 29 December 1965 (354 F.2d

608 (2d Cir. 1965)). 34 Citizen suits can be directed against a polluter (“citizen enforcement suit”) or a competent authority for lax enforcement

(“nondiscretionary suits”), see Coplan (2014) at p. 67. 35 Boyd (2018) at p. 17. 36 O’Donnell (2018) at p. 144. 37 Citation after O’Donnell (2018) at page 138. 38 https://www.bbc.com/news/world-asia-india-40537701 39 https://www.law.ox.ac.uk/events/rights-rivers-rights-nature-turning-intentions-action-launch-event-bangladesh-high-

court


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2.6. Interim conclusions on Rights of Nature

The RoN school of thought includes a wide and intermingling array of aspects which are not always easy to distinguish from each other. Clearly, a discourse that focuses principally on natural ent it ies is very different to one that deals with ecosystems, which in turn is more limited compared with one of a planetary focus. Whereas Christopher Stone drew attention to the protection of species , many US local ordinances aim to protect “natural communities and ecosystems”. The latter was also the protection awarded by the courts in cases reported from Bangladesh and India, even though there is an additional traditional Hindu aspect in India that may prove politically controversial.40 Ecuador and Bolivia use the concept “Pachamama” and “Madre Tierra” respectively, which include the idea of buen vivir, “a spiritual component and a notion of community to which harmony among people and between people and nature is integral”.41 This idea is rather vague and leaves open for the courts to find the exact meaning in each case at hand. Moreover, these RoN must be balanced with other rights protected under legislation and the outcome has not always been environmentally friendly. 42 In this context, it is noteworthy that the governments of Ecuador and Bolivia are using the concept of Pachamama and Madre Tierra in order to pursue an “extractivist” economic development model, with assertions of national sovereignty over natural resources.43 The legislation in Aotearoa New Zealand is more distinct and environmentally friendly in this respect, even though it allows for judicious use of natural resources. But similar to the legislation in Latin-American countries it is founded in a specific political context, here in a reconciliation process between the national government and indigenous peoples. The major difference between the two regions is that the Te Urewara and Whanganui legislation are both aimed at the protection of those ecosystems and leave it to the Maor i t r ibes to decide about the RoN, as they have the majority in the guardianship boards managing those areas. In contrast, the Constitution in Ecuador does not provide standing for the public as a whole, not even for indigenous communities.

Similarly, existing Earth jurisprudence includes everything from species protection to climate actions. In this text, I have intentionally refrained from mentioning the latter ones, as they lie outside the core meaning of giving legal personhood to natural objects or ecosystems. But even with a more narrow approach, it is not clear why some cases qualify as RoN cases in that discourse and others lie outs ide. Why, for example, is Colorado River Ecosystem v. State of Colorado considered a case concerning nature’s rights, while civil suit cases under the US Clean Water Act are not? As a matter of legal philosophy, it may seem as a critical difference if the river itself has a legal personhood and standing of itself, compared with when ENGOs or individuals are allowed to take action in court because they have an interest in the protection of the river. But from a practical viewpoint, the two s ituations are very similar, as both concepts require that someone appear in court, claiming that s/he represents the river. Be that as it may, the success rate all over the world for RoN cases seems to be quite low, especially if one considers the constitutional challenges to the local and regional RoN bylaws in the USA. As noted however, this is contrasted with the judgements in the Colombian cases and the ones in India and Bangladesh. In those instances of success, it becomes interesting to discuss whether the actual outcomes of the cases have introduced something radically new to environmental law. And, finally, success must be examined in relation to the enforcement of court decisions; the Wheeler-Huddle couple never succeeded in stopping the construction of the road after their victory in the

40 See O’Donnell (2018) at p. 141. 41 Humphrey (2017) at pp. 471ff. 42 Rühs (2016) at p. 10. 43 Villavicencio Calzadilla, P & Kotzé (2018) at p. 3.


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Vilcabamba River case, as they could not afford to sue the developer once again.44 Whether this is an issue purely for RoN cases or a general trend in environmental law is one of the issues discussed in Chapter 5 of this study.

44 https://www.npr.org/2019/08/03/740604142/should-rivers-have-same-legal-rights-as-humans-a-growing-number-of-

voices-say-ye?t=1611578191150


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3. A HUMAN RIGHT TO A HEALTHY ENVIRONMENT

3.1. Introduction

The first human rights instruments on an international level came directly after the Second World War, focusing on the reconstruction of economies and the establishment of a lasting peace. Being instruments of their time, they did not include a right to a healthy environment. Neither the 1948 Universal Declaration on Human Rights nor the 1966 Covenants (the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Political and Civil Rights) contain any such provision on the environment, although some of their articles can be interpreted in that direction. Environmental issues came into focus 25 years later and in the 1972 Stockholm

KEY FINDINGS

• Environmental protection under the European Convention of Human Rights and Fundamental Freedoms (ECHR) is indirect, since the beneficiaries of the duty of the States to regulate and control sources of environmental harm are only those individuals whose rights will be affected. Thus, the duty is not about protecting the environment, but of protecting humans from significantly harmful environmental effects . The ECHR also gives the States a wide margin of appreciation when rights of individuals are affected by interventions by the State on behalf of the environment, as well as in the administration’s choice of measures to abate or avoid environmental harm.

• Therefore, despite its evolutionary character, the ECHR still falls short of guaranteeing the right to a healthy environment if that concept is understood in broader terms unrelated to impacts on humans. Also, going to the Strasbourg court is only a last resort, a principle that equally applies in environmental cases: the procedures are often prolonged, and do not intervene in the actual situation for those whose rights have been infringed.

• The 1998 Aarhus Convention establishes the three pillars of “environmental democracy”, namely access to information about environmental issues, public participation in decision-making and access to justice in court.

• The Aarhus Convention covers all kinds of decisions relating to the environment as such, even those belonging to other fields of law as long as they have an impact on the environment.

• However, Aarhus exclusively relates to procedural aspects of environmental decis ion-making. Therefore, it has little importance for what results from the end of that procedure, even if all the rules in the book are followed.

• The Aarhus Convention has an independent Compliance Committee to which the public can submit complaints about flaws in the implementation of the Conventional requirements. Although its statements are not binding, they play an important part in the understanding of the Convention and – when endorsed by the Meeting of Parties – work as “interpretive factors” in the building of international norms in the field of environmental democracy.


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Declaration 45 it was stated as a right for humanity to enjoy “an environment of a quality that permits a life of dignity and well-being”. This was further developed in the 1987 Brundtland Report on Legal Principles for Environmental Protection and Sustainable Development.46 The 1992 Rio Declaration was rather timid on the rights issue, focusing more on the procedural questions. Instead, the substantive aspects of a right to a healthy environment were developed under the UN Commission on Human Rights, beginning with the report of the Special Rapporteur in 1994, “Draft Principles of Human Rights and the Environment”.47 Later, the right to a healthy environment was included in the UN Declaration on the Rights of Indigenous Peoples 2007,48 the outcome document “The Future We Want” from the Rio+10 Conference in 2012 and the Sustainable Developments Goals established in 2015. The Special rapporteurs under the UN Commissioner on Human Rights have followed suit , as well as many international organisations and courts.49

As for the meaning of a human right to a healthy environment, a definition is given in the document “Global Pact for the Environment”, currently in negotiations under the auspices of the UN:

Every person has the right to live in an ecologically sound environment adequate for the ir he alth, well-being, dignity, culture and fulfilment.

This idea may be expanded to encompass aspects “that take into account the suitability of a given environment to an individual or a people according to its social and cultural needs and thus acknowledge the interdependence of elements of the human environment”.50 It can therefore be argued that the human right to a healthy environment includes all kinds of environmental protection, nature conservation and heritage law. These factors are also covered in the reports from the UN Special Rapporteur on human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, namely:

• Clean air • A safe climate • Healthy and sustainable produced food • Access to safe water and adequate sanitation • Non-toxic environments in which to live, work and play • Healthy ecosystems and biodiversity

Even though the concept thus includes healthy ecosystems and biodiversity, the link between human rights law and the RoN is not evident. One may even argue that the two ideas are opposites as the perspective of the former is that nature is an “object”, whereas the latter presupposes that nature is a “subject”. Even so, the human right to a healthy environment is often mentioned as part of the RoN discourse. Further, as it is commonly accepted that human rights and the environment are

45 Declaration of the United Nations Conference on the Human Environment, Stockholm 5-6 June 1972;

https://www.un.org/en/conferences/environment/stockholm1972 46 Our Common Future. Report of the World Commission on the Environmental and development. Oslo 20 March 1987;

https://sustainabledevelopment.un.org/content/documents/5987our-common-future.pdf 47 Human Rights and the Environment. Final report prepared by Fatma Zohra Ksentini, Special Rapporteur, Geneva 6 July

1994; https://digitallibrary.un.org/record/226681 48 Declaration on the Rights of Indigenous Peoples. UN General Assembly 13 September 2007;

https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.ht ml 49 History and timeline according to Manual on human rights and the environment (2012) p. 11ff and Boer (2019) section

VI.4.4. 50 Boer (2019) at p. 55 citing Cullet, P: Definition of an environmental right in a human rights perspective. 13 Netherlands

Quarterly of human rights, 1995 pp. 25–40.


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interrelated, there is a need to explore to what extent human rights law takes nature’s intrinsic value into account. Against this backdrop, the following section will deal with the European Convention of Human Rights and Fundamental Freedoms (ECHR) and the case-law of the European Court of Human Rights (ECtHR). As the ECHR carries procedural requirements for access to information, good governance and “fair trial”, I will also cover another regional treaty of great importance to the EU and its Member States in this respect, namely the 1998 UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention).

3.2. The European Convention on Human Rights and Fundamental Freedoms

The European Convention on Human Rights and Fundamental Freedoms 51 (ECHR) is the oldest human rights convention, with the largest number of signatories. The ECHR became operat ional in 1953 and all 47 members of the Council of Europe – among them Turkey and Russia – are Part ies to the Convention. The European Court of Human Rights (ECtHR) in Strasbourg was established in 1959. In contrast with other human rights treaties – such as the African (Banjul) Charter on Human and Peoples’ Rights 1981 (Article 24) and the San Salvador Protocol to the American Charter on Human and Peoples’ Rights (Article 11)52 – the ECHR does not contain any article on environmental r ights. This issue has been raised throughout the years in different cases, but the ECtHR has consistently held that the Convention cannot be read to include an environmental right in itself.53 In the Council of Europe’s Manual on human rights and the environment, we can read:54

Neither the Convention nor the Charter are designed to provide a general protection of the environment as such and do not expressly guarantee a right to a sound, quiet and healthy environment. However, the Convention and the Charter indirectly offer a certain degree of protection with regard to environmental matters, as demonstrated by the evolving case-law of the Court and decisions of the Committee on Social Rights in this area.

This statement also reflects that the Convention is a “living instrument” which must be interpreted in the light of present-day conditions.55 The ECtHR has adopted an evolutionary approach, showing a growing awareness of the link between human rights and the environment.56 As for environmental

51 The Convention for the Protection of Human Rights and Fundamental Freedoms. Council of Europe 1953;

https://www.echr.coe.int/Pages/home.aspx?p=basictexts&c 52 The right to live in a healthy environment is recognised in Article 11 of the Protocol of San Salvador. Still, that article was

not enforceable through individual petitions until the 2018 Advisory Opinion 23/17, in which the Inter-American Court found that the right to a healthy environment is encompassed by Article 26 of the American Convention on Human Rights (1969). This was later confirmed in the case Comunidades Indígenas Miembros de la Asociación Lhaka Honhat (Nuestra Tierra) v. Argentina (IACtHR 6 Feb 2020).

53 Kyrtatos v. Greece (2003; 41666/98), Fadeyeva v. Russia (2005; 55723/00) and Karin Andersson ao v. Sweden (2014; 29878/09).

54 CoE: Manual on human rights and the environment (2012) at p. 7. The manual was issued for the first time in 2006 and is a non-binding guideline for the understanding of the case-law of the ECtHR and decisions by the European Committee of Social Rights about the European Social Charter (ESC). In addition to just recapturing judgements and decisions, it sets out some principles under the Convention. The current edition of the manual was issued in 2012, but the Steering Committee for Human Rights (CDDH) decided in late 2020 to undertake an update.

55 Boyle (2007) at p. 485 with reference to Soering v. UK (1989; 14038/88). 56 CoEs Manual (2012) at p. 30.


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matters, this can be described as a substantial “greening” of the Convention over the years.57 So far , the Court has ruled on some 300 environment-related cases, mainly under the provisions on the right to life (Article 2), respect for private and family life (Article 8), peaceful enjoyment of property (Article 1 of Protocol no. 1), and a fair hearing (Article 6).58 Broadly speaking, the Convention deals with environment matters in two ways, albeit in distinctly different situations. On the one hand, when the State undertakes measures for environmental protection or nature conservation, the Convention sets restrictions for the infringement on the property rights of individuals and private entities , as well as the right for individuals to enjoy a private life. On the other hand, the State also has an obligation to regulate and control environmental degradation when it impairs or may impair the exercise of rights under the ECHR. In addition, there is an obligation for the State to uphold basic requirements of good governance in these situations (information to the public, participation in decision-making procedures, access to justice, and so on). In the following sections, I will discuss the ECtHR’s case-law on these matters.

3.3. When the State undertakes measures on behalf of the environment

Article 1 of Protocol no. 1 protects property rights, reading, “every natural or legal person is ent it led to the peaceful enjoyment of their possessions”. When the State undertakes different measures in order to protect certain environments, natural objects, habitats or species, this may of course collide with the landowners’ or tenants’ right according to this Article. Such measures may, for example, include the designating of nature reserves, shore protection zones, water protection areas, or the protection of wild species of fauna and flora. When these conflicts arise, the ECtHR has cons istent ly awarded the State a wide margin of discretion as to the choice of protective measures to be undertaken, albeit under strict conditions; the decision in question must meet a legitimate objective, be authorised by law and proportionate in reaching the aim.

For many years, the ECtHR has recognised that environmental protection and nature conservat ion is increasingly important in society. For this purpose, the Court has been consistent in accepting this aim as legitimate. Case-law concerning such restrictions has instead focused on balancing of interests, necessity of the intervention or protection (proportionality), legitimate expectat ions and compensation. Measures to uphold environmental standards have been widely accepted by the Court.59 Property rights under the Convention are – like many other rights – never absolute or unqualified.60 Leading cases here are Fredin v. Sweden (1991) and Pine Valley Developments ao v. Ireland (1991).61 The first case concerned the revocation of a licence to operate a gravel pit situated on the applicant’s land. The authority’s decision was based on the Nature Conservation Act and was accepted by the ECtHR. The Court stated that while it was true that the applicant had suffered substantial losses due to investments in the operation, he had known about the revocation of the permit for years and could not, therefore, have any legitimate expectations of continuing to exploit the land for a long period of time. In these circumstances the ECtHR found that the revocation decision had neither been inappropriate nor disproportionate.

57 Boyle (2007) at p. 486, Kobylarz (2018) at p. 101. 58 https://www.coe.int/en/web/portal/human-rights-environment 59 CoE’s Manual (2012) at p. 21. 60 Boyle (2007) at p. 493. 61 Fredin v. Sweden (1991; 12033/86) and Pine Valley Developments ao v. Ireland (1991; 12742/87), see also Kapsalis and Nima-

Kapsali v. Greece (2004; 29037/03).


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Measures undertaken on behalf of the environment can also infringe upon the respect for private and family life and the home, according to Article 8 of the Convention. This has also been accepted by the Strasbourg court if the restrictions are proportionate to the legitimate aim and there is a fair balance between the opposing interests. The Grand Chamber decision in the two cases Depalle v. France (2010) and Brosset-Triboulet ao v. France (2010)62 – concerning the demolition of buildings on a seashore – show that very intrusive infringements on property rights can also be justified for the sake of environmental protection. The case Hamer v. Belgium (2007)63 concerned the demolition of a holiday home, built in 1967 by the applicant’s parents without a building permit. After some efforts from the authorities to impose criminal sanctions for the illegal development, the house owner was ordered to restore the site to its original state. She brought the case all the way to Strasbourg, arguing that her property rights had been violated. The ECtHR did not agree, finding that she had not suffered disproportionate interference. The Court also emphasised the importance of environmental protection and nature conservation, why the public authorities must assume responsibility to ensure that the laws on this are implemented effectively. Not even fundamental rights should be afforded priority in situations such as the one at stake in the case.

Against the background of these cases, one may conclude that when the ECtHR balances environmental concerns against convention rights, it has recognised that national authorities are best placed to make decisions on environmental issues, which often have difficult social and technical aspects. In reaching its judgments, the Court therefore affords the national authorities a wide discretion. Under this discretion, however, the authorities must respect the fundamentals of good governance in administration.

3.4. Protection against environmental harm

Another and contrasting situation for when the Convention may come into play is when disturbances through air pollution, water contamination, noise, odour, smoke and other nuisances have a ser ious impact on peoples’ homes and “living space”.64 If the competent authorities have failed to protect the inhabitants in these situations, breaches in the protection of their human rights have been found. Most notably, these environmental cases concern the protection of private and family life according to Article 8 and Article 2 on the right to life. Also, Article 1 of Protocol no. 1 on property rights and Article 6 on fair trial have been applied.

First, the protection afforded in the ECHR covers only serious environmental impacts and disasters. Complaints over minor issues or general environmental concerns are dismissed by the Court .65 It is also important to note that in these cases, the State is given a wide margin of discretion on environmental policies and appropriate ways to tackle the situation in order to protect the public concerned from disturbances. This was made clear in Hatton v. United Kingdom (2003)66 concerning noise from Heathrow airport in London. Here, the 3rd Chamber of the ECtHR found a breach of Art icle 8, where the United Kingdom had not demonstrated the benefits of night flights, nor had it adequately assessed the noise impact or mitigated its effects sufficiently for the complainants . The 62 Depalle v. France (2010; 34044/02) and Brosset-Triboulet ao v. France (2010; 34078/02). 63 Hamer v. Belgium (2007; 21861/03). 64 CoE’s Manual (2012) at p. 19. 65 See CoE’s Manual (2012) at p. 50 with reference to Luginbühl v. Switzerland (2006; 4143/02) on general concerns about

nuclear plants. There are also cases concerning radiation from radio masts. 66 Hatton ao v. UK (2003; 36022/97).


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Grand Chamber however took an opposite view, finding that the effects on the properties and their inhabitants were not altogether that serious and that the Conventional duty on the State is confined to protect individuals from disproportionate interferences in the right to life, health, enjoyment of property and family. Concerning the margin of discretion in environmental cases, the Grand Chamber noted:67

The Court must consider whether the State can be said to have struck a fair balance between those interests and the conflicting interests of the persons affected by noise disturbances, including the applicants. Environmental protection should be taken into consideration by States in acting w ithin their margin of appreciation and by the Court in its review of that margin, but it would not be appropriate for the Court to adopt a special approach in this respect by reference to a special status of environmental human rights. In this context the Court must revert to the question of the scope of the margin of appreciation available to the State when taking policy decisions of the kind at issue.

However, when serious environmental degradation or disasters occur, there may be breaches of Articles 2 and 8 to the Convention. When such circumstances or events directly and ser ious ly affect the individuals’ privacy and living space, the competent authorities are obliged to investigate, inform and intervene.68 Cases illustrating these requirements have dealt with natural disasters, city dumps, incineration plants, industrial installations and similar activities with severe environmental pollut ion, for example: Lopez Ostra v. Spain (1994), Guerra v. Italy (1998), Fadeyeva v. Russia (2005), Ladyayeva v. Russia (2006), Budayeva v. Russia (2008), Tâtar v Romania (2009), Öneryildiz v. Turkey (2004) and Budayeva v. Russia (2008).69 Another well-known case is Di Sarno v. Italy (2012),70 where a number of inhabitants of a community sued the Italian government for not having solved the “waste crisis” problems that prevailed in the Campania region between 1994 and 2009, thus forcing them to live in an environment polluted by refuse left in the streets. During part of that time, the Court cons idered that the situation had led to a deterioration of the applicants’ quality of life, which was in breach of Article 8 of the ECHR.

In these case types, the ECtHR’s focus has been on the context and individual circumstances of the situation, such as the causal link between the environmental degradation and the effects on the inhabitants, intensity and duration of the impact, and so on. The ECtHR has made clear that if such a risk can be foreseen by the relevant competent authorities, they must undertake an independent and impartial investigation of the events. In addition, the authorities must – applying the precautionary principle – undertake any measure necessary to protect the public concerned and to remedy the situation.71 Here, the margin of appreciation is not very wide, especially if there have been breaches of domestic environmental standards.72

67 Hatton ao v. UK (2003; 36022/97), para. 122. 68 CoE’s Manual (2012) at p. 19. 69 Lopez Ostra v. Spain (1994; 16768/90), Guerra v. Italy (GC 1998; 14967/89), Öneryildiz v. Turkey (2004; 48939/99), Fadeyeva

v. Russia (2005; 55723/00), Ladyayeva v. Russia (2006; 53157/99), Budayeva v. Russia (2008; 15339/02), Budayeva v. Russia (2008; 15339/02) and Tâtar v Romania (2009; 67021/01). In the Öneryildiz case an explosion occurred on a rubbish tip close to the houses where the complainant lived, killing several members of the family. It can be noted that the ECtHR found that a breach of their right to “living space” despite the fact that the development of houses at the site was illegal, a situation that the authorities had known about for years. Other prominent cases concerning environmental issues are: Moreno Gómez v. Spain (2004; 4143/02), Öçkan ao v. Turkey (2006; 46117/99), Deés v. Hungary (2011; 2345/06), Dzemyuk v. Ukraine (2014; 42488/02), Jugheli ao v. Georgia (2017; 38342/05) and Cordella ao v. Italy (2019; 54414/13 and 54264/15).

70 Di Sarno v. Italy (2012; 30765/08). 71 CoE’s Manual (2012) at. p. 18. 72 Boyle (2007) at p. 488.


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3.5. Good Governance under the Convention

Another important feature developed in the case-law is that the Court has established rules on good governance for administration under Article 8 ECHR. In situations where there is a risk of serious environmental degradation affecting inhabitants’ private and family life, the authorities are not only required to undertake investigations, but also to inform those concerned. In the two cases Giacomelli v. Italy (2006) and Lemke v. Turkey (2007), the ECtHR thus stated:73

… a governmental decision-making process concerning complex issues of environmental and economic policy must in the first place involve appropriate investigations and studies … The importance of public access to the conclusions of such studies and to information enabling members of the public to assess the danger to which they are exposed is beyond question.

In addition, the decision-making procedure must be transparent and fair with due respect to all interests involved. Possibilities for public participation shall be provided for, as well as access to justice.74 In the two cases Tâtar v Romania (2009) and Taşkin ao v Turkey (2005), the ECtHR stressed that although Article 8 does not contain an express provision on due process, these requirements must still be upheld in relation to those “specifically affected”.75 In the first mentioned case, the ECtHR referred to the Aarhus Convention and pointed to the national legislation on public debates that had not been complied with and that the public concerned had no access to the conclusions of the studies conducted on the environmental impacts. In the literature, this has been described as a “profound extension of the procedural rights” under the Convention.76

Article 6 and the requirement for a fair trial has also been triggered in environmental cases in the ECtHR. The case Bor v. Hungary (2013)77 concerned serious noise emissions from a railroad station, disturbances that the ECtHR found had affected the quality of life of a person who lived nearby and therefore in breach of Article 8. As the authorities had been passive over the years and had not intervened to protect the inhabitant’s interests, there was also a breach of Article 6. This last finding was in accordance with previous case-law, clarifying that the legal systems of the Parties must include the legal means for the public concerned to challenge administrative actions and omissions concerning people’s living conditions.78 Article 6 is further supplemented by the provision on effective remedies in Article 13. This was emphasised in the Di Sarno case, where there were no remedies available according to Italian law for the waste situation. The requirement for a fair t r ial in Article 6 is even wider than the substantive protection in Article 8 and other provisions of the Convention, as it applies in “the determination” of someone’s civil rights and obligations according to the Convention. Thus, when someone has an arguable case, they may claim unlawful interference with, for example, Article 8 – as was the case in Karin Andersson ao v. Sweden (2014)79 – and then invoke the requirement for a fair trial. Finally, one must not forget the basic demand for “equality of

73 Giacomelli v. Italy (2006; 59909/00), para. 83 and Lemke v. Turkey (2007; 17381/02), para. 41 (translation after CoE’s Manual

(2012) at p. 85). 74 Boyle (200/9 at p. 497, Kobylarz (2018) at p. 116. It may also be noted that environmental information issues have been

raised under Article 10 ECHR, such as Verein gegen Tierfabriken v. Switzerland (2001; 32772/02) concerning a ban on advertisements from an animal welfare group.

75 CoE’s Manual (2012) at p. 23 with reference to Taşkin ao v. Turkey (2004; 46117/99), Tâtar v Romania (2009; 67021/01), see also Grimkovskaya v. Ukraine (2011; 38182/03).

76 Boyle (2007) at p. 498. 77 Bor v. Hungary (2013; 50474/08). 78 Grimkovskaya v. Ukraine (2011; 38182/03), Hardy and Maile v. UK (2012; 31965/07). 79 Karin Andersson ao v. Sweden (2014; 29878/09).


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arms” contained within Article 6, as illustrated by the famous McLibel case (2005).80 Finally, high costs and lack of legal counsel cannot be allowed to create barriers for those who choose to take legal action to protect their rights and freedoms, a consideration which is also valid in environmental cases. The recent ECtHR judgement in Ecoglasnost v. Bulgaria (2020) is a showcase in that respect.81

3.6. Victims and standing

The European Convention has a strong public trigger; any “victim” – after having exhausted national remedies – can sue the government of the Party involved. However, there is a limitation which excludes those who want to use the Convention for general purposes of environmental protection or nature conservation, the so-called “direct victim requirement”.82 This means that a condition for having ECtHR review the merits of the case is that the environmental disturbance or degradation affects the applicant’s rights under the Convention. Thus, if a person’s civil rights are not sufficiently affected by the environmental event, standing in the Court will not be afforded. Or as the Court usually puts it, there is no explicit right in the Convention to a clean and quiet environment, but when an individual is directly and seriously affected by noise or other pollution, an issue may ar ise under Articles 2 or 8.83

Those persons who go to Strasbourg, but from the outset are not regarded by the Court as vict ims under the Convention, will be dismissed and their complaint not reviewed on the merits. Therefore, in order to undertake an analysis of the “direct victims” concept, one must study both judgements and decisions. This is not the place for such an exercise, which is why I will confine the report to some landmark cases. In Kyrtatos v. Greece (2003) a couple of landowners complained about an urban development project that had impacted their living space with noise, night-light and other disturbances. They also claimed that the project had destroyed nature values in a swamp on their property.84 The ECtHR found, however, that even though the environment could have been impaired by the developments in the area, the applicants had not shown that the damage to the birds and other protected species living in the swamp was of such a nature as to directly affect their rights under Article 8. As for the noise and other disturbances arising from the project, those emissions were not so serious as to amount to a breach of their convention rights. In the so-called Tigris Dam case (Ahunbay ao v. Turkey, decision 2019), five individuals involved in the excavation of a historic site complained that a hydropower project in the river would destroy cultural heritage values in the area, something that amounted to a breach of their Article 8 rights. They also claimed that the project was in breach of Article 2 of Protocol no. 2 to the Convention, as it would violate humanity’s right to education, now and for future generations. Hearing those arguments, the ECtHR recognised that there exists a shared European and international perception of the need to protect cultural heritages, but that this generally focused on situations pertaining to the right of minorities to enjoy their own culture freely and to preserve their cultural heritage. In contrast, the Court did not perceive there to be any consensus among the Parties to the Council of Europe that would make it possible to infer from the Convention’s provisions that there exists a universal, individual right to the protection of the cultural heritage. Under this reasoning, the application was dismissed.

80 Steel and Morris v. UK (2005; 68416/01). 81 National movement Ecoglasnost v. Bulgaria (2020; 31678/17). 82 Kobylarz (2018) at p. 106, CoE’s Manual (2012) at p. 100. 83 Leon and Agnieszka v. Poland (2009; 12605/03), para. 98. 84 Kyrtatos v. Greece (2003; 41666/98).


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From this case-law, one can safely conclude that a certain amount of environmental protection can be extracted from the ECHR – at least a healthy environment and some basic procedural requirements – but only to those directly affected.85 Consequently, the ECtHR has consistently rejected any ideas of actio popularis. 86 However, the Court has also showed an increasing awareness of the role that ENGOs play in a democratic society. Gorraiz Lizarraga ao v. Spain (2004) is illustrative in this respect. Here, a number of inhabitants had set up an association with the sole purpose of protecting their interests when a hydropower dam was built. The Court accepted to review the complaint, stating that the victim criteria must be understood in the light of the conditions in contemporary society. When citizens are confronted with particularly complex administrative decisions, recourse to collective bodies is an important means for them to protect their interests effectively. This is the reason most countries in Europe today recognise standing in court for organisations for these purposes. As the dam project in this case would concern the individuals’ rights under the Convention, standing was awarded to the association.87 Also, in quite a few other cases on environmental matters before the ECtHR, associations and groups have played an important role.88 Case-law on this matter can be summarised so that they are allowed to act on behalf of their members, if the individuals have an arguable claim that their rights under the Convention have been infringed upon. This way, individuals can work via ENGOs “by proxy” so to speak, but only when their individual rights under the Convention are affected.89

3.7. The Aarhus Convention

As noted, the European Convention of Human Rights contains basic rules on good governance in administration, but only in relation to those who are directly affected in the enjoyment of their rights. Instead, the most advanced instrument for environmental democracy is currently the regional 1998 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention)90 . This Convention establishes three pillars in order to improve the democratic legitimacy of decision-making in environmental matters, namely access to information about environmental issues, public participation in decision-making and access to justice in court. The preamble to the Convention emphasises the importance of a close relationship between environmental rights and human rights, and further stresses that all three pillars are of decisive importance for sustainable development. The ideas forming the pillars are intertwined to form a whole, something that is advanced in the Implementation Guide of the Convention:91

Public participation cannot be effective without access to information, as provided under the f irst pillar, nor without the possibility of enforcement, through access to justice under the third pillar.

The Aarhus Convention is relatively short, containing only 22 Articles. Like many international instruments, it starts with a general part, including a provision laying down its objectives (Art icle 1),

85 Boyle (2007) at p. 505. 86 Klass ao v. Germany (1978; 5029/71), Ílhan v. Turkey (2005; 22494/93), CoE’s Manual (2012) at p. 23 87 Gorraiz Lizarraga ao v. Spain (2004; 62543/00), paras. 38–39. 88 See for example the already mentioned cases Taşkin ao v. Turkey (2004), Di Sarno v. Italy (2012), Öçkan ao v. Turkey (2006). 89 See also Collectif Stop Melox et Mox” v. France (2007; 75218/01) and L’Erablière asbl v. Belgium (2009; 49230/07). 90 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental

Matters adopted in Aarhus, Denmark, on 25 June 1998 by United Nations Economic Commission for Europe (2161 UNTS 447). Available at: https://unece.org/DAM/env/pp/documents/cep43e.pdf.

91 The Aarhus Convention – An Implementation Guide, p. 119.


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largely reflecting what was earlier stated in the preamble. In this part, there are also some definit ions (Article 2) and general provisions (Article 3). The definition of environmental information is very broad, including information from decision-making procedures. Of particular interest for this article are the definitions of the “public” and the “public concerned” (Articles 2.4 and 2.5). The broader concept “public” is defined as “one or more natural or legal persons, and, in accordance with national legislation and practice, their associations, organizations or groups”. The “public concerned” means “the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest”. Further, the general provisions make clear that the provisions of the Convention constitute a floor (“minimum provisions”) that does not prevent the Parties from maintaining or introducing enhanced information, wider participation and more effective access to justice than that required by the Convention (Art icle 3.5). Article 3.9 essentially prohibits discrimination on the basis of citizenship, nationality, domicile or registered seat.

Provisions on access to environmental information are found in Articles 4–5 of the Convention, whereas Articles 6–8 deal with public participation in decisions on specific activities and concerning plans, programmes, policies and generally applicable legal norms. The “third pillar” of the Convention is contained in its Article 9. According to Article 9.1, any person whose request for environmental information has been refused shall have access to a review procedure in a court or tribunal.92 Art icle 9.2 stipulates that the public concerned shall have access to a similar procedure to challenge the substantive and procedural legality of any decision, act or omission subject to permit decis ions on activities that may have a significant impact on the environment. In addition, Article 9.3 requires that members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its nat ional law relating to the environment. There is also a general requirement for the environmental review procedure to be effective, fair, equitable, timely and not prohibitively expensive (Article 9.4).

3.8. The compliance mechanism of the Aarhus Convention

Most international environmental conventions have some kind of surveillance committee in charge of controlling the implementation and application of the conventional requirement in the signing Parties. Most of these committees are populated by governmental representatives and can only deal with complaints from the signing States. However, some modern environmental instruments have independent and impartial commissions, which are able to receive submissions directly from the public concerned, including from ENGOs (“public trigger”).93 Examples of such compliance mechanisms can be found in the 1979 Bern Convention,94 the 1991 Alpine Convention,95 the 1999 Protocol on Water and Health,96 and the 2010 Nagoya Protocol.97

92 See, The Aarhus Convention – An Implementation (2014) at pp. 187ff., also Darpö (2021). 93 See Koester (2016), at pp. 713ff. 94 Convention on the Conservation of European Wildlife and Natural Habitats, CETS 104 (19 Sept. 1979). 95 Convention Concerning the Protection of the Alps (1991); https://www.ecolex.org/details/treaty/convention-

concerning-the-protection-of-the-alps-tre-001126/ 96 Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Water Courses and

International Lakes (1999); https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg no=XXVII-5-a&chapter=27&clang=_en


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The Aarhus Convention has such an independent commission equipped with a public trigger. The Convention’s Compliance Committee consists of nine members, nominated by the Parties and ENGOs and elected at the Meeting of the Parties. The Committee is independent, because its members are judges and legal scholars sitting in their personal capacities for six years. All communications and meetings among the Committee are open to the public.98 From 2004 to date, the Committee has received 184 communications from the public, out of which 83 have been concluded with recommendations. One must not underestimate the importance of committee decisions. Though its statements are not binding, they play an important part in the understanding of the Convention and – when endorsed by the Meeting of Parties – work as “interpretive factors” in the building of international norms in the field of environmental democracy. It can be noted that all Member States of the EU are Parties to the Convention, as well as the EU itself. The latter has particular importance for the public’s possibilities to go directly to the Court of Justice, on which I will expand upon in the next chapter.

3.9. Interim conclusions on ECHR and Aarhus

From a RoN perspective, the following conclusions concerning the European Convention of Human Rights are relevant. To begin with, environmental protection under the Convention is indirect , s ince the beneficiaries of the duty of the States to regulate and control sources of environmental harm are only those individuals whose rights will be affected. Thus, the duty is not about protecting the environment, but of protecting humans from significantly harmful environmental effects. Against this background, environmental protection becomes primarily a task for the national governments and courts, applying other substantive norms in this field of law. Moreover, the Convention gives the States a wide margin of appreciation when rights of individuals are affected by interventions by the State on behalf of the environment, as well as in the administration’s choice of measures to abate or avoid environmental harm. Therefore, despite its evolutionary character, the ECHR still falls short of guaranteeing the right to a healthy environment if that concept is understood in broader terms unrelated to impacts on humans.

This position may be challenged by all climate cases which are brought in Europe today. As the readers are well aware, the Supreme Court in the Netherlands in 2019 found that the Dutch government’s failure to meet the requirements under the Paris agreement amounted to a breach of the inhabitants’ rights under Article 2 and 8 of the ECHR.99 However, in 2020 the Norwegian Supreme Court drew the opposite conclusion concerning the opening of the Barents Sea for oil exploitat ion,

97 Protocol on Access to genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to

the Convention of Biological Diversity (2010); https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg no=XXVII-8-b&chapter=27&clang= en

98 All documents are published on the Aarhus Convention’s web site: http://www.unece.org/env/pp/. 99 Hoge Raad, 8 December 2019 in case no. 19/00135. It is noteworthy that the Hoge Raad did not ask for an advisory

opinion of the ECtHR, something which would have been possible as the Netherlands has signed Protocol no. 16 to ECHR. This Protocol allows the highest courts and tribunals of the Parties to request the ECtHR for an advisory opinion on questions of principle relating to the interpretation of the rights under the Convention. However, only a few Member States of the EU have signed and ratified this Protocol.


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taking a more traditional stance.100 The Austrian Constitutional Court concurred in that position, when it dismissed an action based on Article 2 and 8 ECHR from Greenpeace to invalidate a tax regulation that gave credits to air travel and not railways.101 The same fate met a group of women (“Verein KlimaSeniorinnen Schweiz”) when they took legal action against the Swiss government for not having ambitious enough policies to fight climate change.102 Similar cases have been brought in Belgium (“Klimaatzaak”), United Kingdom (Heathrow), France, Germany and other countries , as well as directly in the EU Courts.103 Some of these will eventually find their way to the Strasbourg court, although the first have already arrived. In addition to the Swiss Klimaseniorinnen, a group of six Portuguese youngsters – “Youth for Climate Justice” – has sued all Member States of the EU and s ix other Parties to the ECHR for breaches of Articles 2 and 8 due to their failure in undertaking necessary measures to stop climate change.104 Even if the various outcomes in these cases are not directly relevant for the discussion on RoN, it touches upon the basis of the human rights system in Europe, something which may have wider implications for all Parties to the European Convention on Human Rights.

Having said this, it is also important to recognise another of the basic features in the Conventional system. Going to the Strasbourg court shall only be regarded as a last resort, a principle that equally applies in environmental cases. In addition, human rights procedures are often (very) prolonged, and do not intervene in the actual situation for those whose rights have been infringed. Nadezhda Fadeyeva received compensation, but the Severstal steel plant in Cherepovets still operates, and the railroad close to Karin Andersson’s house has already been built. These situations will not be remedied by the judgements of the ECtHR. Even if those decisions are closely scrutinised by the national courts in Europe, the system is still mainly reparative.

By comparison, the Aarhus Convention covers all kinds of decisions relating to the environment as such, even those belonging to other fields of law. Thus, Aarhus is relevant for decision-making procedures on, for example, taxes, domestic and international investments, State subsidies, or issues relating to energy or land-use, so long as they have an impact on the environment. However, the drawback is obvious; Aarhus exclusively relates to procedural aspects of the decision-making and therefore has little importance for what results from the end of that procedure, even if all the rules in the book are followed. To be able to delve into the substance of environmental law and its relation to the RoN concept, we need to move on to the legal system of the EU.

100 Norges Høgsterett, 2020-12-22 in case no. 20-051052SIV-HRET. 101 Verfassungsgerichtshof, 30 September 2020 in case no. G 144-145/2020-13, V 332/2020-13. 102 Schweizerisches Bundesgericht, 5 May 2020 in case no. 1C_37/2019. 103 The case Carvalho ao v. the EU (T-330/18) was instigated by 37 individuals from six Member States of the EU plus Fiji and

Kenya. The action was not based on the ECHR, but partly on a similar protection of life, family life and health under Articles 2, 3 and 7 of the EU Charter on Fundamental Rights (CFR). The action was however dismissed by the General Court, a decision which is now under appeal at the CJEU (C-535/19 P). For more information about the different climate cases, see http://climatecasechart.com/

104 Duarte Agostinho v. Austria ao Parties to ECHR (393/71/20). The case rests with the 4th Chamber of the ECtHR, and as of today, the admissibility of the action has yet to be decided.


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4. EU LAW ON THE ENVIRONMENT

4.1. Introduction

The development of EU law on the environment has followed a similar trajectory to corresponding international law, albeit with its own characteristics. Since 2009, the constitutional pillar of the Union has had its basis in the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). Also, the Charter of Fundamental Rights of the European Union (CFR) has become legally binding with the same status as the Treaties in primary law.

In Article 3(3) TEU, it is established that the Union shall work for the sustainable development of Europe based on, among other things, balanced economic growth, full employment and social progress, and a high level of protection and improvement of the quality of the environment. This programmatic declaration is supplemented by the general provision in Article 11 TEU, requiring that environmental protection must be integrated into the definition and implementation of Union policies, “in particular with a view to promoting sustainable development”. However, the most important provision on a constitutional level is Article 191 TFEU, formulating the environmental objectives:

KEY FINDINGS

• The preservation and protection of the environment and the notion of sustainable development has a strong constitutional position in the primary law of the European Union, that is the Treaties of the European Union and the CFR. Also the most important environmental principles are found on this hierarchic level of the legal system.

• In secondary EU law, all kinds of environmental issues are currently covered by a wide array of Regulations and Directives.

• Whereas the regulations are directly applicable in the Member States, in the case-law of the CJEU a similar effect has been awarded to those provisions in Directives that are sufficiently precise and unconditional. The national courts are called upon to disregard any national law in breach with such provisions containing clear, precise and unconditional obligations concerning nature conservation or environmental protection.

• In the wake of Aarhus and under the development of the principle of judicial protection of EU law, there has been a substantial widening of the access to justice possibilities for the public concerned to challenge administrative action and inaction in recent years. According to the CJEU, the public concerned – including recognised ENGOs – must be able to bring administrative decision-making under EU law on the environment to the national courts for review.

• However, this widening of access to justice to the national courts has not as of yet included the possibilities to challenge acts by EU institutions by direct action to the CJEU. This situation has been raised to the Aarhus Convention’s Compliance Committee, which already in 2011 voiced criticism against the EU in the so-called C32 decision. To meet these concerns, the EU Commission in late 2020 proposed a reform of the Aarhus Regulation (1367/2006). Whether the proposal suffices to meet the criticism from the Aarhus Compliance Committee remains to be seen on the next Meeting of the Parties to Aarhus in September 2021.


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1. Union policy on the environment shall contribute to pursuit of the following objectives: • preserving, protecting and improving the quality of the environment, • protecting human health,

• prudent and rational utilisation of natural resources, • promoting measures at international level to deal with regional or worldwide

environmental problems, and in particular combating climate change.

2. Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.

Finally, the importance of environmental protection is also highlighted in Article 37 CFR, where it states: “that a high level of environmental protection and the improvement of the quality of the environment shall be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development”.

As noted, some environmental principles are expressed in these provisions, most importantly the precautionary principle and the polluter pays principle. Other such principles instead are defined in the secondary legislation of EU law, such as Best Available Technology (BAT) in the Industrial Emissions Directive (IED)105. The substitution principle can also be found in that Direct ive, although that is first and foremost one of the bases for the laws on chemicals – mainly in the Regulation concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH)106. Principles have a key function in the EU legal system, both for the deciding of competences, and as tools for the interpretation of the legislation. The CJEU’s case-law in environmental matters shows many examples of deliberations about the purpose and aim of a certain piece of legislation. In this way, environmental principles complement the general principles within EU law, such as the rule of law, the principle of useful effect (effet utile), and the principle on judicial protection.107

4.2. EU regulations and directives

As in all other areas of social regulation, environmental law in the EU consists of both regulations and directives, although the latter dominate. Regulations are often used to implement international agreements into the Union and its Member States and on areas where trade harmonisation is of key importance, such as in the legislation on chemicals and waste, and on the protection of endangered species. REACH has already been mentioned, the EU Wildlife Trade Regulations implementing the

105 Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions

(integrated pollution prevention and control) (OJ L 334, 17.12.2010, p. 17), available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32010L0075.

106 Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ L 396, 30.12.2006, p. 1), available at: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32006R1907

107 Further reading on environment principles in EU law can be found in Langlet & Mahmoudi (2016), section 2.3 and Krämer (2016), Chapter 1.


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Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES Convention)108 being another example.109

Today, EU directives cover most of the environment, from the soil and water to the air , atmosphere and climate. From a RoN perspective, the most prominent are the two “nature directives”, that is , the Birds Directive110 and Habitats Directive111. These directives require the Member States to des ignate areas for the conservation of natural habitat types of European interest and for the protection of rare and threatened species, thus establishing the so-called Natura 2000 network. The direct ives aim to implement the 1979 Bern Convention under the ambit of the Council of Europe,112 while also being part of the EU’s implementation of the 1992 Convention on Biological Diversity (CBD).113 The CBD recognises the “intrinsic value of biodiversity” and has three main objectives:

1. the conservation of biological diversity,

2. the sustainable use of the components of biological diversity, and

3. the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources.

Other important pieces of sectorial legislation are the Water Framework Directive (WFD) 114 and the above-mentioned Industrial Emissions Directive (IED). There are also horizontal directives – applicable to all kinds of activities – such as those about Environmental Impact Assessments concerning plans and programs (SEA Directive)115 and projects (EIA Directive)116. The EIA Directive is also applicable to transboundary pollution, thus incorporating the 1991 Espoo Convention into EU law.117

According to Article 288 TFEU, a directive is “binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods”. On the face of it, one may believe that this leaves the Member State a wide discretion for the means of implementation. However, this openness has been narrowed considerably by the CJEU, clar ify ing that directives must be transposed in the national legislation so that the general legal context is reflected, but still ensuring the full application of their provisions in a sufficiently clear and precise manner.118 Concerning strict obligations, mere internal practices within the administration do not

108 Signed in Washington D.C., US, on 3 March 1973 (993 UNTS 243). For further information, see https://cites.org/eng. 109 EU Wildlife Trade Regulations include, in particular: Council Regulation (EC) No 338/97, Commission Regulation (EC) No

865/2006, and Commission Implementing Regulation (EU) No 792/2012,all available at: https://eur-lex.europa.eu/homepage.html?locale=en

110 Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ L 20, 26.1.2010, p. 7), available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0147.

111 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ L 206, 22.7.1992, p. 7), available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31992L0043.

112 Convention on the Conservation of European Wildlife and Natural Habitats, CETS 104 (19 Sept. 1979). 113 Convention on Biological Biodiversity (1992); 1769 UNTS 79. The 2010 Nagoya protocol (see footnote 97) is issued under

the third limb of CBD. 114 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for

Community action in the field of water policy (OJ L 327, 22.12.2000, p. 1), available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32000L0060

115 Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ L 197, 21.7.2001, p. 3), available at: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32001L0042

116 Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ L 26, 28.1.2012), consolidated version available at: https://eur-lex.europa.eu/legal-content/FR/TXT/?uri=CELEX%3A02011L0092-20140515.

117 1991 Convention on Environmental Impact Assessment in a Transboundary Context, 1989 UNTS 309. 118 See for example, C-6/04 Com v. UK (2005), para. 26, C-507/04 Com v. Austria (2007), para. 89.


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meet these requirements, as they are not published and can be altered at the will of the authorities.119 To meet the principle of legal certainty, such provisions in EU law must be implemented into national legislation “with unquestionable binding force” in order to clarify the rights and obligations of all those who are concerned.120

4.3. The doctrine of direct effect

According to Article 4(3) TEU, the Government and all administrative bodies and courts in a Member State that are charged to apply EU law are bound to the principle of loyal cooperation. Accordingly , they must respect the doctrine of treaty conform interpretation of EU legislation and also award certain provisions direct effect. Treaty conform interpretation is what lawyers do in their everyday tasks, namely, to understand black letter law systematically and in line with the aim and purpose of any given legislation. Direct effect is something that, according to the CJEU, shall be awarded to provisions in directives that are sufficiently precise and unconditional. Such provisions take precedence over national legislation incompatible with EU law.

For many years, there has been debate over whether direct effect can be afforded only to provis ions that carry individual rights in a more traditional understanding, or if it may also be applied to provisions in directives carrying obligations for the national administration. Today, a broad understanding dominates the legal scholarship of environmental law. To most legal scholars , direct effect is about the possibilities open to the public concerned to challenge decisions by authorities, in relation to demands for a certain environmental quality in accordance with clear indications under EU law.121 The direct effect of EU law has also been described as the duty of the Member States’ court or other authority to apply the relevant provision ex officio as a norm governing the case, super ior to and irrespective of what the national regulation says on the matter. In this way, provisions with direct effect could be used by all concerned parties in order to challenge decision-making under EU law.122

This is also the general position from which this study takes its view. As will be shown below, the CJEU emphasises both rights and duties expressed in directive provisions with direct effect. In this way, case-law expresses two aims of direct effect – a dual approach.123 These aims are, first, the protection of rights, and second, to verify that EU legislation in the environmental sphere is complied with at Member State level. The point of departure for the analysis here is that all provisions of EU law with sufficient clarity and precision have direct effect – meaning the substitutional effect on incompatible rules of national law – and that those who are qualified as bearers of the interests expressed in these provisions should be able to challenge the national decision-making in court in line with the principle of judicial protection. Another starting point is that the Union legal system cannot discriminate between different areas of law concerning the enforcement of common obligations, although the doctrine of direct effect must be adapted to the legal context in which it functions. Traditional individual subjective rights belong to areas where there are distinct bearers of the rights expressed in EU law, such as free movement of goods and services, labour law, social security, or migration. As those interests thus always can appear in court, the legal system would be biased if the public

119 C-507/04 Com v. Austria (2007), para. 162 with references to case-law. 120 C-415/01 Com v. Belgium (2003), para. 21. 121 Jans, & Vedder (2011), Chapter 5, Fisher & Lange & Scotford (2013), Chapter 1–2. 122 Prechal (2005), p. 241, Langlet & Mahmoudi (2016), p. 21, see also Eliantonio (2016), p. 175–201. 123 Commission Notice (2017) section C (paras. 31–57).


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interests – clean air, sound water resources and a rich biodiversity, etc. – were to be prevented from coming to court in order to achieve a balance against the interests of developers and enterprises. Such an attitude would not be in line with the high ambitions of environmental protection within the Union, expressed in Article 3(3) TEU, Articles 11 and 191 TFEU and Article 37 CFR.

4.4. The Aarhus Convention and EU law

The basic provision on access to justice within the EU lies in Article 47 CFR, stating that everyone whose rights or freedoms are violated is entitled to an effective remedy, meaning a fair and public hearing within a reasonable time by an independent and impartial tribunal. This provision is complemented by Article 19 TEU, requiring Member States to provide remedies sufficient to ensure effective legal protection in the fields covered by Union law. Read together, these provisions express the two underlying reasons for access to justice on a general level; first, to protect rights and freedoms, and second, to enforce the rule of law.

The European Union and its Member States are parties to the Aarhus Convention. Nearly all the provisions in the Convention are implemented in the Union by various directives, most important ly the Environmental Information Directive (2003/4, EID)124 and amendments made to the EIA Direct ive and the IED through the Directive on public participation (PPD).125 Other pieces of legislation also contain implementation measures, such as the Environmental Liability Directive (ELD).126 For decision-making by the institutions of the Union, the Aarhus Convention is implemented by Regulation No 1367/2006 (Aarhus Regulation).127 With respect to Article 9(3), the picture is more complex. On the approval of the Convention, the EU made a declaration on competence, stating that Member States are responsible for the performance of the obligations in accordance with Article 9(3) and will remain so unless and until the Union adopts provisions covering implementation. A proposal for a directive on access to justice was launched by the European Commission in 2003 and deliberated upon for more than a decade before finally being withdrawn in 2014 due to resistance at Member State level.128 In reality, however, this resistance has had little importance since the CJEU has driven the development of a wider access to justice for the public under the principle of legal protection under EU law.

Even before the ratification of the Aarhus Convention in 2005, important positions were taken by the Court on issues such as the “direct effect” of EU directives and the principles of effectiveness and

124 Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental

information and repealing Council Directive 90/313/EEC, available at : https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32003L0004&qid=1615481237607

125 Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (OJ L 156, 25.6.2003, p. 17), available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32003L0035.

126 Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ L 143, 30.4.2004, p. 5), available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32004L0035.

127 Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ L 264, 25.9.2006, p. 13), available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006R1367.

128 Proposal for a Directive of the European Parliament and of the Council on access to justice in environmental matters (COM/2003/0624 final), withdrawal announced in OJ (2014) C153/3.


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judicial protection under EU law. Examples of landmark cases in this respect are C-431/92 Grosskrotzenburg (1995), C-72/95 Kraaijeveld (1996), C-435/97 WWF (1999) and C-201/02 Delena Wells (2004). Since 2005 and the EU’s accession to Aarhus, the development of case-law on access to justice has been expansive.129 About 50 cases have been delivered by the CJEU, covering all aspects of access to justice in environmental matters. Concerning standing for individuals and ENGOs the following can be mentioned: C-237/07 Janecek (2008), C-75/08 Mellor (2009), C-263/09 Djurgården (2010), C-240/09 LZ or Slovak Brown Bear (2011), C-115/09 Trianel (2011), C-128/09 Boxus, C-182/10 Solvay (2012), C-72/12 Altrip (2014), C-404/13 ClientEarth (2014), and C-243/15 Slovak Brown Bear II (2016). A number of cases have dealt with the cost issue in environmental proceedings: C-427/07 Irish costs (2009), C-260/11 Edwards (2013), and C-530/11 Com v. UK (2014). As has been mentioned, Article 9(4) of the Aarhus Convention requires that the national procedures be fair, equitable and timely, an issue which was dealt with in C-416/10 Križan (2013).130

Two cases stand out as especially important for the understanding of the position in EU law concerning access to justice in environmental matters. First, when the CJEU was faced with the problem of Article 9(3) not being implemented in EU law, it established what we may call the “to enable” formula in Slovak Brown Bear (2011). Here, the Grand Chamber of the CJEU made clear that even though Article 9(3) of the Aarhus Convention is not directly applicable in EU law, it is still a Union law obligation for the Member States’ courts to interpret, to the fullest extent possible, the national procedure in order to enable ENGO standing in environmental cases. 131 That statement opened the gates to national courts all over Europe, since most domestic procedural systems use “open criteria” for standing in administrative cases. These provisions were now to be understood as including standing for ENGOs in environmental cases. The next question that immediately arose concerned the situation where national procedures do not leave any such room for interpretation. The reply to this came only two months later in Trianel (2011), where the court stated (italics added):132

It follows more generally that the last sentence of the third paragraph of Article 10a of Directive 85/337 must be read as meaning that the ‘rights capable of being impaired’ which the environmental protection organisations are supposed to enjoy must necessarily include the rules of national law implementing EU environment law and the rules of EU environment law having direct effect.

Thus it follows from this case that ENGOs represent the environmental interest, not only where EU law provisions have been implemented in national legislation, but also where they have direct effect by way of being sufficiently precise and unconditional. As a consequence, national courts are obliged to set aside any domestic rule contrary to the reading of that provision in EU law. Another reasonable conclusion to be drawn from this judgement in combination with Slovak Brown Bear and the principle of judicial protection in Article 19 TEU is that this role of the ENGOs is generally applicable in all areas of EU environmental law. This was made even clearer in subsequent case-law, for example in S lovak Brown Bear II (2016), where CJEU – the Grand Chamber once again – stated that Article 47 of the Charter was applicable to a situation where an ENGO had appealed a decision to construct an enclosure for deer within a Natura 2000 site.133 Yet another important step was taken in C-664/15

129 See Brakeland (2014): Access to justice in environmental matters – development at EU level. 130 A summary of the CJEU cases from Djurgården and onwards is published on the website of the Task Force on Access to

Justice under the Aarhus Convention, see http://www.unece.org/environmental-policy/treaties/public-participation/aarhus-convention/envpptfwg/envppatoj/jurisprudenceplatform.html.

131 Free citation from para. 51 of the judgement in C-240/09. 132 C-115/09 Trianel (2011) para. 48. 133 C-243/15 Slovak Brown Bear (2016), para 73.


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Protect (2017).134 In this case, the CJEU first made the often repeated statement from the Slovak Brown Bear case about Article 9(3) of the Aarhus Convention not having direct effect in EU law. But then it added that, used in conjunction with Article 47 of the Charter, that provision shall be interpreted as meaning that an ENGO must be able to contest before a court a decision granting a permit for a project that may be contrary to the obligation to prevent the deterioration of the status of bodies of water as set out in Article 4 of the WFD.135 If the procedural rules in the Member State do not allow for this under the doctrine of treaty conform interpretation, it would then be for the national court to set aside (disapply) those provisions.136

In conclusion, direct effect of EU environmental law relates to clear obligations, meaning that the public concerned shall have standing in order to challenge decisions by national authorities on subjects that are covered by provisions that are sufficiently precise and unconditional. In addit ion to this, the requirement taking it into consideration expressed in the case-law of the CJEU implies that the Member State court must make its own evaluation of the case to see whether the administration has decided in accordance with those provisions. Thus, the direct effect has two legal consequences: firs t standing in the case and, second, that of being invocable in court. Evidently, the under ly ing reason for the jurisprudence of the CJEU is that the Member States shall not have the advantage of being able to escape from obligations according to EU law on the environment by simply avoiding implementing them. Clearly, this argument relates to the rule of law, but also to the fact that the public plays a crucial role as guardian of the correct application of EU law, something already stressed in the case Van Gend en Loos in the early 1960s.137 To strengthen access to justice for the public concerned – both on the national level and by way of direct action to the CJEU – is also stated by the Commission as a political priority for delivering the European Green Deal.138

4.5. Direct action to the CJEU

The CJEU body of case-law relates directly to the provisions of the Aarhus Convention. In this way, the various positions of the CJEU have become an important source for understanding the Convention,

134 Case C-664/15, Protect (2017), paras. 55–58. 135 Among others, the CJEU referred to C-73/16 Puškár (2017), para 57 and the case-law cited therein. 136 Other recent cases with implications for the enforcement of EU environmental and access to justice are C-470/16 North

East Pylon (2018) on costs in environmental proceedings, C-752/18 Deutsche Umwelthilfe (2019) about the possibilities of a national court to impose imprisonment in order to sanction administrative passivity concerning implementation of obligations under EU law, C-723/17 Craeyenest (2019) on the possibilities open for the public concerned to challenge how the authorities are monitoring and assessing air quality under Directive 2008/50, C-280/18 Flausch (2019) on the requirements in the EIA Directive for how the public shall be notified about ongoing decision-making procedures, C-197/18 Wasserleitungsverband Nördliches Burgenland (2019) about the possibilities for individuals, private entities and ENGOs to challenge the authorities omission to set up Nitrate Actions Programs under Directive 91/676 and C-826/18 Varkens in Nood (2021) about participation as a prerequisite for access to justice. On a general level, the CJEU’s preliminary decisions in the Białowieża case (C-441/17 R, ECLI:EU:C:2017:622), where the Court for the first time granted interim relief combined with fines according to Article 279 TFEU and Article 260(7) and 260(3) in the Rules of Procedure of the Court of Justice also are highly relevant for the effectiveness of justice in environmental matters, as well as the judgements in late 2019 about the independence of the Polish judiciary (C-619/18, C-192/18 and joined cases C- 585/18, C-624/18 and C-625/18).

137 C-26/62 Van Gend en Loos v Netherlands [1963] ECR 1, the second last paragraphs (not numbered) above “The second question”, see Brakeland (2014), p. 6.

138 Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions: The European Green Deal. Brussels 11.12.2019. COM/2019/640 final, p. 30, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1596443911913&uri=CELEX:52019DC0640#document2


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not only for its implementation in EU law, but also on a general level. At the same t ime, the Aarhus Convention’s Compliance Committee has issued a number of important decisions about the third pillar of the Convention. Often, the standpoints of the CJEU and the Committee coincide, but not always. Most importantly, the Compliance Committee has been seriously concerned about CJEU case-law concerning the possibilities available for the public concerned to challenge decisions within the EU administration. In its two “C/32 decisions”,139 the Compliance Committee criticises the strict criteria in EU law which apply when someone wants to challenge decisions and omissions by the EU institution by instigating legal action direct to the CJEU. The background to this is the traditional Plauman doctrine, which does not seem to have been substantially changed by the introduction of the Aarhus Regulation in 2006.140 Although the Regulation introduces an internal review mechanism and a possibility for certain ENGOs to appeal to the EU Courts, this possibility is open only for a limited number of EU acts.

The C/32 case was brought in 2008 by the ENGO ClientEarth with support from a number of ent it ies and individuals. The communicant claimed that EU law concerning direct action to the EU Courts was incompatible with Article 9(3) of the Aarhus Convention. The Compliance Committee’s decis ion was taken in two phases, the first of which came in April 2011 (C/32 Part 1).141 The Committee drew some general conclusions in this decision and stayed further proceedings, pending the final outcome of T-338/08 Stichting Mileu (2012) in the CJEU, concerning the interpretation of the Aarhus Regulation. The decision in C/32 Part 2 came in March 2017. That decision was, however, not endorsed by the Aarhus Meeting of the Parties later that year, due to resistance from the EU. Instead, the meeting took note of the Compliance Committee’s findings and decided to discuss the matter at the next meeting in September 2021. And so, the EU was awarded another four years to deal with the criticism.

Considering the subsequent development of case-law after 2011, the Compliance Committee raises criticism against the EU on several points. To begin with, the Committee held with regard to the “special nature” of the EU legal system, that while a system of judicial review in the national courts of the EU Member States – including the possibility to request a preliminary ruling of the CJEU – is a significant element for ensuring proper implementation of EU law, it cannot be a basis for generally denying members of the public access to EU Courts to challenge decisions, acts and omissions by EU institutions and bodies. Without delving into the details of the case, the remarks concerned both criteria for standing and what types of internal decisions can be challenged by way of direct action to the CJEU. As for standing, only those for which the administrative act is of “direct concern” can ask for annulment, which rarely can be said about an ENGO challenging a particular measure by EU institutions. The Committee also criticised the limitation that restricted access to recognised ENGOs only, thus excluding private persons and other entities belonging to the public. The Committee further pointed to the combination of Article 263 TFEU and the Aarhus Regulation which offers a panoply of restrictions on what kind of administrative decisions and omissions can be subjected to an action for annulment, only allowing: “regulatory acts” not entailing “implementing measures”, acts with “legally binding and external effects”, measures of “individual scope under environmental law”, and those not taken by the administrative authority in their “judicial and legislative capacity”. Compared with Article 9(3), covering all kinds of acts and omissions by public authorities that

139 The findings of the Compliance Committee on communication ACCC/C/2008/32 (part I) (ECE/MP.PP/C.1/2011/4/Add.1)

and ACCC/C/2008/32 (part II) (ECE/MP.PP/C.1/2017/7) concerning the compliance by the European Union. 140 Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of

the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ L 264, 25.9.2006, p. 13), available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006R1367.

141 See the chart for the case ACCC/C/2008/32 European Union at https://unece.org/acccc200832-european-union.


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contravene laws relating to the environment, the Compliance Committee found the criteria for direct access to the CJEU too strict.

After the Meeting of the Parties in 2017 and some debate among the EU institutions, the Council of the European Union requested the European Commission to undertake a study to explore ways to comply with the findings of the Compliance Committee. This study was published in 2019 together with an Environmental Implementation Review. Strict criteria for ENGO standing and costs were identified as the main barriers to access to justice in the EU.142 In late 2020, the European Commission published a proposal for revision of the Aarhus Regulation.143 The stated reason is that access to justice in environmental matters – both via the CJEU and via the national courts – is an important measure for delivering the European Green Deal and to strengthen the role that civil society can play as watchdog for the implementation of EU law. The proposal aims to amend the Regulation in a way that is compatible with the fundamental principles of the Union legal order and its system for judicial review. Against this background, ENGOs should be awarded broader possibilities to challenge acts and omissions of EU bodies in accordance with the Aarhus Convention. In detail, it is suggested to expand the definition of appealable decisions to any non-legislative act that has legally binding and external effects and contains provisions that may contravene environmental law. At the request of the EU, the Aarhus Compliance Committee in February 2021 issued an “advice” concerning the proposed reform of the Aarhus Regulation.144 The Committee welcomed the amendments as a significant positive development, but still had some remaining concerns. Most importantly, it criticised that only recognised ENGOs have the possibility to ask for internal review of acts by the EU institutions and advised that also other members of the public should have this possibility, albeit under certain criteria. The remaining concerns touched upon minor issues such as the understanding of “binding effect” and “implementing measures”. As noted, the outcome of this discussion will be decided on the seventh session of the Meeting of the Parties to the Aarhus Convention in September this year.

4.6. Interim conclusions about EU Law on the environment and access to justice

Although RoN is not recognised in the EU, the preservation and protection of the environment and the notion of sustainable development has a strong constitutional position in the Treaties of the European Union and the CFR. We can also find the most important environmental principles on this hierarchic level of the legal system. Moreover, in secondary EU law we find all kinds of environmental

142 European Commission study on EU implementation of the Aarhus Convention in the area of access to justice in

environmental matters (2019) available at: https://ec.europa.eu/environment/aarhus/pdf/Final study EU implemention environmental matters 2019.pdf, and Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – Environmental Implementation Review 2019: A Europe that protects its citizens and enhances their quality of life (COM/2019/149 final), available at: https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:52019DC0149.

143 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – Improving access to justice in environmental matters in the EU and its Member States (COM(2020) 643 final), available at: https://ec.europa.eu/environment/aarhus/pdf/communication improving access to justice environmental matters.pdf

144 Advice 2021-02-12 by the Aarhus Convention Compliance Committee to the European Union concerning the implementation of request ACCC/M/2017/3, available at: https://unece.org/env/pp/cc/accc.m.2017.3_european-union


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issues covered by directly applicable regulations and directives that leave room for the Member States to implement. This national discretion has, however, been restricted in two ways by the doctrine on direct effect that has been developed in the CJEU case-law. First, the Member States’ courts are called upon to disregard any national legislation incompatible with clear, precise and unconditional obligations of EU law. Second, the public concerned – including recognised ENGOs – must be able to bring administrative decision-making under certain provisions to the national courts for review. In the wake of Aarhus and under the development of the principle of judicial protection of EU law, there has been a substantial widening of the access to justice possibilities for the public concerned to challenge administrative action and inaction in recent years. However, the s ituat ion is quite the opposite concerning the possibilities to challenge such acts by EU institutions by direct action to the CJEU. In comparing this stance with the generous attitude concerning the requirements for open access to national courts, it is no exaggeration to talk of the Janus face of the CJEU.

In the following sections, I will relate the basic features of the EU legal system to the RoN concept and ask what added value legal personhood for natural objects would entail. I will also discuss what improvements can be made in EU law to meet the issues that the RoN shines the light on.


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5. A CRITICAL APPROACH TO RIGHTS OF NATURE IN A EUROPEAN CONTEXT

5.1. Introduction

In this section, I will give my own perspectives on RoN and discuss what may be the benefits of applying this concept in the jurisdiction of the EU. In doing this, an effort is made to define the main components in this school of thought – to “deconstruct” the RoN concept so to speak – in order to see what it consists of. The methodological point of departure is that only by doing so are we able to see beyond the labels and evaluate what added value RoN can bring about.

Some caveats must be made from the beginning. In the RoN discourse, one may say that there is a distinction between those who belong to the “deep ecology” movement and us, the others, “anthropocentric” – sometimes even named “shallow” – legal scholars. As already confessed at the beginning, I definitely belong to the latter group and my analysis is therefore in line with that

KEY FINDINGS

• RoN does not entail a shift of paradigm in law that has the capacity to save the environment from the challenges we face today. Many of the deficits that this movement criticises modern environmental law for having are general problems that have been discussed for years and which will not be remedied by introducing new labels in a system that still must be handled by humans. The dichotomy between RoN and modern European environmental law is therefore partly artificial, a symbolic construct.

• The idea of giving “legal personhood” to natural entities is basically to introduce “act io popularis” via the backdoor so to speak. In the legal order of the EU – with advanced environmental law and clear obligations for the administration – we have chosen a different avenue for enabling civil society to act as a watchdog of environmental decision-making, namely to award standing in court for the public concerned and for recognised ENGOs. There is little reason to deviate from this system, although it needs to be strengthened in certain aspects.

• Even so, the RoN school of thought contains fresh insights in its critique of current environmental law and presents ideas that can be developed within our conventional legal notions.

• Such an idea may be to introduce the general principle of non-regression on the constitutional level in EU law, meaning a prohibition on the Member States to undertake measures entailing environmental degradation or the weakening of environmental laws. Other principles that are lacking are at that level is those concerning environmental or ecological integrity, as well as the recognition of the “intrinsic value of biodiversity”.

• In addition, many ideas in the RoN concept can be used to improve secondary EU legislation on the environment. Most importantly, these ideas concern the improvement of the enforcement possibilities and the implementation of the Union obligations in the Member States. A number of such issues are touched upon in this

i i ill f ll i i C 6


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perspective. But as Elder said 35 years ago, “epithets cannot replace analysis”.145 Another quotation worth remembering is one by the late Staffan Westerlund, professor in Uppsala, and one of the founders of environmental legal scholarship in Europe. When we were doctoral students in his seminar, he kept reminding us that “if you invent a new legal term, ask yourself if it is really needed”. Thus, my scholarly sceptical attitude towards RoN begins with the question: do we really need this new concept, what is the added value? However, it should also be noted from the beginning that I share much of the RoN movement’s view on the need for a systematic change in our society if we want to fight the climate challenges and loss of biodiversity.

Another starting point of mine is a strong belief in trias politica from a European understanding, namely that politics, executives and the courts have different roles to play in a democratic society. These roles are obviously developing in accordance with society and the environment, but the bas is remains the same: parliaments establish rules by legislation, the governments and administrat ions manage the implementation, and the courts ensure that this is done according to the law (the rule of law principle). Within the RoN movement, there exist tendencies that I find worrying in this respect . To be concerned about having politicians decide on which species shall be included in the lists under the Habitats Directive is a valid critique that merits support. But to talk about a renewal of environmental law by way of “liberation of governments from electoral blackmail” is something radically different.146 That attitude is in line with a darker side of “deep ecology” where “nature” is the ultimate norm giver through “rights” to which humankind is obliged to abide no matter what social interests are at stake. In such a system, there seems to be little room for political or democratic choices or prioritisations, because it is not defined who determines what 'nature' requires, that is, what person or institution is allowed or mandated to define the superior interest of the environment. The democratic deficit in this philosophy of “deep ecology” was already questioned in French philosophy 30 years ago, but that debate seems now to be dormant.147 In the RoN discourse, the trias politica issue is not even mentioned, let alone discussed. In contrast to this, I am a strong believer of the distribution of powers and the rule of law, even though it may have its apparent drawbacks from an environmental viewpoint. But that is the price to pay for democracy and I am sure that it will – at the end of the day – show that the environment will also benefit from developing majority support in society. In consequence, I also concur with those who advocate a strong position for the environment at the constitutional level, an issue returned to in Section 5.3.

In this chapter, the key elements of the RoN school of thought are analysed and discussed from a critical point of view. Some ideas will be dismissed, whereas others will be developed into proposals for the improvement of European environmental law. The discussion here touches upon issues such as: the description of the world and the environment according the RoN movement and the recipe for change, substantive and procedural aspects of RoN, legal personhood and standing for natural entities, representation and guardianship, the relationship between nature science and law, the burden of proof in environmental decision-making, the implementation and enforcement of environmental law, and the competence of the courts.

145 Elder (1984) at p. 285. 146 Citation from the reading, although I will not give the source. 147 See, inter alia, Goyard Fabre, S: Les embarras philosophiques du droit naturel, Vrin, 2002, p. 345; Bourg, D: Droits de

l’homme et écologie, Esprit, Octobre 1992, p. 80. Both authors underline the anti-humanism of deep ecology. This debate nevertheless tends to reappear through the concept of planetary limits proposed by advocates of deep ecology and rights of nature, see Bétaille, J: La personnalité juridique de la nature démystifiée, éléments de contre-argumentation, Actu-environnement, November 16th 2020 : www.actu-environnement.com/blogs/julien-betaille/180/personnalite-juridique-nature-demystifiee-elements-contre-argumentation-22-439.html


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5.2. Arguments in the Rights of Nature discourse

Reading a substantial amount of RoN literature during a limited period of time is a trying task and actually quite confusing. As already noted in Chapter 2, this discourse is very wide and contains a number of different stories. What was initially a rather confined topic has become a whole philosophy with content that is not always very distinct. Christopher Stone was mainly concerned with awarding a constitutional value to nature with an absolute ban on certain environmental degradations, the undertaking of high quality EIAs, economic considerations and trust funds for nature, the burden of proof and representation in court. In his 1972 article, he favoured the idea that natural objects should have standing in court, as well as an obligation for the court to assess the damage to that object and issue relief to its benefit. Today, we do not find this position to be very radical, albeit we use different labels for these legal constructs. And what is more, the case Stone analysed was not different from an ordinary environmental case of today where an ENGO contests a decision to allow the destruction of nature. However, the current discourse on RoN has moved far beyond this position and has clear ingredients of politics and symbolism. And as with any such movement, it is not always very mindful of the accuracy of its storytelling.

With Bétaille, one may say that the modern idea of RoN rests upon three basic assumptions; first, that current environmental law is anthropocentric and therefore cannot recognise nature’s intrinsic value; second, that introducing legal personhood to natural objects would be a paradigm shift in law; and third, that this concept is better suited than existing environmental law to solving the challenges of today, such as climate change and large scale biodiversity losses.148 As noted in Chapter 2, there are even some RoN philosophers claiming that modern environmental law is not part of the solut ion to these problems, but is a contributor to a system which cements the status quo in regarding nature as an object free for exploitation, although with certain limits harmless for the rights of man.

In support of this world view, the RoN discourse is surprisingly consistent. The same cases are highlighted over and over while the low success rate of these is given less attention, both concerning their survival on appeal and their implementation on the ground. Something similar can be said about the fact that most of the local bylaws on RoN have been quashed on constitutional grounds when they have been appealed to court. Further, it is seldom discussed that the RoN legislation in, for example, Aotearoa New Zealand and Latin America and subsequent cases are given in very special cultural circumstances. In the first case, RoN are a means for conciliation between the government and the Maori tribes, in the latter, they are part of an anti-colonial strategy in a coordinated action from environmental activists, associations representing the indigenous peoples, and progressive politicians in these countries. In Ecuador and Bolivia these RoN laws have been used by the governments to strike hard against illegal activities in sensitive areas, but also to promote a traditional – albeit nationalist – extractivist agenda. According to some authors, RoN has thus become a superior principle to all others except for the “right” to exploit natural resources (sic).149

Another characteristic of the RoN discourse along the same lines is the anecdotal evidence supporting the idea. Suggesting Sweden as a country where RoN may be established in the Constitution only shows an astonishing lack of understanding of political realities. This motion to the Riksdag was made by four members of the Green Party and will be discussed in an assembly

148 Bétaille (2019) at p. 37. 149 See Kauffmann & Martin (2017), also Humphrey (2017) who reminds us that the Inter-American Court of Human Rights in

2012 found that the government of Ecuador acted in breach with the right to life of the Kichwa indigenous people of Sarayaku when not protecting them from damages originating from oil exploration on land which the tribe held (Kichwa Indigenous People of Sarayaku v. Ecuador, IACtHR 2012-06-27, Series C No. 245).


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composed of 349 delegates (out of which the Green Party has 17) where the predominating sentiment is strongly anti-Aarhus. The chances for success are thus negligible, diplomatically speaking. Another such example concerns access to justice in the EU. By pointing to a couple of Italian cases and the meagre possibilities for the public concerned to take direct action in the CJEU, RoN proponents largely fail to discuss the radical widening of the possibilities open for ENGOs to challenge decision-making in environmental matters in the Member States’ courts , a development that is strongly driven by the CJEU.

Yet another point of criticism is that the RoN school of thought includes elements which lack clar ity . Even if one may understand the words in a sentence like the following, the actual meaning is not evident:150

The contents of the Charter must establish the concept of a natural nested hierarchy of rights that follows the order of hierarchies in natural systems that operate to sustain life leading to a reframing of the notion of ‘rights’ from adversarial to ‘right relationship’ i.e.: synergistic and complementary.

Also the reasoning that “all existence” shall constitute the basis for natural objects’ status as r ights-holders is not easy to comprehend from the perspective of legal scholarship. Does that include the rights of less-wanted creatures such as mosquitos and feral animals? From time to time, the reasoning in the RoN discourse also seems to be circular – “as nature lacks rights it is deemed incapable of having interests” – as well as self-declaratory statements such as “one cannot truly speak about the intrinsic value of nature without granting nature rights”. The reader may wonder, why not?

However, these viewpoints on the RoN discourse may be of minor importance. The most serious criticism relates instead to the basic question of how to deal with environmental degradat ion as an urgent practical matter in the present day. From an analysis of climate change, loss of biodiversity and other serious environmental problems – which I think are basically well founded and which concerns I share – the RoN believers make a “leap” in order to find a solution. It is rarely seriously discussed why awarding natural objects legal personhood should solve all the problems described. The arguments against such a conclusion that have been put forward in literature in recent years are never met and RoN is presented as a “quick fix” to all issues, without getting into any further explanation. Often, it is merely stated that the dire state of the environment and rapid climate change require fundamental structural changes in the current legal system, something that can be effectively achieved only through recognition of the RoN. What is surprising is that such statements sometimes even occur in articles where the poor outcome of RoN cases is accounted for. To give an example, Gellers states, after having analysed the cases Vilcabamba, Atrato River, Ganges/Yamanu Rivers and Gangotri /Yamunotri glaciers – of which three out of four failed – that, “(a)s such, these cases hold the potential to expose anthropocentric systems of law that have facilitated environmental destruction through economic development”. Needless to say, the reader remains puzzled how this conclusion was reached. Even if one accepts that RoN would be the solution in conflicts concerning the exploitat ion of natural resources or climate change, how does the concept cope with opposing interests “on equal level” which often occurs in environmental decision-making? And what about competing ecosystems on different scales? Wind farms are good sources of renewable energy but can be detrimental for slow flying birds and bats if poorly placed and not conditioned with measures for protect ion of the species. The same is true about hydropower and fresh water biodiversity. Extraction of rare earth elements such as lanthanum and yttrium, much needed for the development of a sustainable society, is not free from controversy or conflicts, nor is modern forestry as provider of biofuels without environmental challenges. On this, the RoN discourse is silent. 150 Carducci et al (2020) at p. 69.


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As a final remark on the critical side, the RoN school of thought is obsessed with “rights”.151 The proponents tend to forget that the notion of rights is entirely a manmade legal construct, not easy to fathom. Anyone who has been involved in the discussion about the dual approach to standing in environmental matters in Europe knows that the difference between “interest-based” and “rights-based” systems is anything but clear.152 As noted in Chapter 3, another example is the use of “r ights” in case-law of the CJEU, where the concept has lost its traditional meaning and been watered down to mean all kinds of “obligations according to EU law”. Thus, the decisive importance that is lent to the notion of “rights” in some legal systems does not exist in the jurisdiction of the Union. In fact, this perspective on rights is an import from other legal systems and legal cultures. If this kind of legal move is performed without taking due account to the receiving system – in our case that of the EU – we stand before a classic situation of “legal transplant”. For such an adventure to be successful, the reform must be “demand-driven and fit into the institutional and cultural legal context” within the hosting system, sharing the same basic norms.153 This can only be achieved if considerations have been given to the country-specific settings and institutional frames of the receiving legal system. No such discussion can be found in the RoN discourse.

In summary, the RoN school of thought contains quite a lot of symbolism and has not so far succeeded in showing that this concept would be a paradigmatic revolution for environmental law in Europe. But even so, this discourse tries to fulfil several needs in order to save the environment. Can we learn anything from its perspective? This will be discussed in the following sections.

5.3. Substantive or procedural aspects of Rights of Nature

In order to understand RoN, it may be helpful to begin with the distinction between the substant ive and the procedural aspects of the concept. The latter will be dealt with in the following sections, whereas the discussion here concerns what changes in law would meet the demands for change.

To begin with, there is a constitutional issue, dealing with what importance is awarded to nature in EU primary law. The treaties of the European Union – TEU, TFEU and CFR – all contain provis ions on sustainable development, the integration principle and a high level of protection and improvement of the quality of the environment. Article 191 TFEU builds on the triad of “preserve-protect-improve” with regards to the environment. In addition, the major environmental principles are included in EU primary law. What is lacking on a constitutional level in comparison with ideas of RoN is a general principle of non-regression, meaning a prohibition on the Member States to undertake measures entailing environmental degradation or the weakening of environmental laws. Other principles mentioned are those concerning environmental or ecological integrity. Finally, as noted in section 4.2, the CBD begins with recognition of the “intrinsic value of biodiversity”, a term that cannot be found on constitutional level in EU law. It can however be said to reside in the nature conservat ion directives, as well as the case-law on these directives by the CJEU.154

The 2020 study of the European Economic and Social Committee (EESC), Towards an EU Charter of the Fundamental Rights of Nature, proposes a separate Charter in order to award nature a higher value in

151 For an interesting discussion about the notion of “deep ecology” and the failure in applying “rights of animals” through

the doctrine of habeas corpus in the USA, see Staker (2017). 152 See Hellner (2019). 153 Faure (2020), section 5. 154 See for example C-461-17 Holahan (2018).


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the legal hierarchy of the Union.155 Since I share their view on the need for a systematic change in our society if we want to fight the climate challenges and loss of biodiversity, the arguments for such a reform are in my view legally sound. Such a Charter would have the same status as CFR and thus the Treaties of the EU. Consequently, all EU legislation would have to be consistent with this Charter and EU institutions would have a duty to act accordingly. The problem with the proposal is not the idea of raising certain values and principles to constitutional level, but the substantive content . Even if the above-mentioned principles were written in a Charter they remain rather unclear. The same can be said about the overarching principles expressed in the Draft Directive on the Rights of Nature, which was presented as a civil society initiative by the organisation Nature’s Rights in 2017.156 The proposal provides for the substantive and procedural rights of nature, and the rights of people in relat ion to nature, and establishes a duty of care, protection and enforcement and ecological governance. Even if the intrinsic value of biodiversity and ecological principles were introduced in EU primary laws , the balancing of different principles of law and different interests is decisive for the success of any such reform. It is worth remembering that both the ECtHR and the CJEU have clearly stated that environment protection is a general interest which may outweigh other vested r ights or interests, formulated like this in the Križan case:157

However, the right to property is not an absolute right and must be viewed in relation to its social function. Consequently, its exercise may be restricted, provided that those restrictions in fact correspond to objectives of general interest and do not constitute, in relation to the aim pursue d, disproportionate and intolerable interference, impairing the very substance of the right guaranteed…

Accordingly, since environmental protection already has a strong position vis-à-vis other r ights and interests in the case-law of the CJEU, a further strengthening must be expressed on a constitutional level if the “interests of nature” are to prevail over others. One such idea is to set a limit for economic activities so as not to compromise “ecological integrity”. I leave it to others to assess the prospects for launching such a reform in the EU today. But it is worth emphasising that the history of the RoN movement shows us that it certainly does not suffice to make a difference in a legal system by simply introducing a nice-looking provision in the Constitution.

The RoN school of thought has strong roots within indigenous traditions in the Americas and Aotearoa New Zealand. In the storytelling of the movement, indigenous people live “in harmony with nature”. This presumption may be correct regarding the traditional culture of reindeer herding for the Sami people in the Nordic countries and Russia – being the only indigenous people on the European continent.158 However, the situation in the arctic region is anything but free from conflicts. Forestry , mining and wind farming all are activities that put pressure on the Sami land-use rights. Modern reindeer herding is at the same time a rather intense land-use activity and has its own environmental challenges. On the one hand, reindeer herding is a condition for certain aspects of biodiversity in the arctic region.159 On the other, its coexistence with large carnivores is filled with controversy. Wolves are not tolerated in these areas in any of the countries. Moreover, research undertaken by Swedish and Norwegian ecologists show that the risk of poaching of brown bear, wolverine and lynx was higher inside national parks under Sami management, compared with surrounding unprotected

155 Carducci et al (2020). 156 Boyd (2018) at p. 16, also https://natures-rights.org/ECI-DraftDirective-Draft.pdf 157 C-416/10 Križan (2013), para. 113. 158 Of course, indigenous peoples reside in places subject to some level of European governance, such as Greenland and

the French “départements d'outre-mer”, for example, French Guiana in South America. 159 Kaarlejärvi et al (2017).


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areas.160 Similar investigations by Swedish ornithologists suggest that the situat ion for the golden eagle in these areas is equally dire. The Sami people have also shown limited interest for the RoN even though the Sami parliament in Sweden endorsed the Universal Declaration of the Rights of Mother Earth (UDRME) as a symbolic gesture in 2018. The dominating discourse among lawyers and legal scholars dealing with Sami land rights in Nordic countries is instead that of property r ights. 161 This has also been the strategy in those cases when Sami villages have turned to the courts to have their rights respected.

As for secondary legislation in the EU, the RoN discourse contains manifold thoughts that may be fruitful to implement in different directives on the environment. This is not the place to be too detailed, but some of them are particularly interesting. The strengthening of the adaptivity requirements in the permit regimes under IED and WFD – as well as the introduction of such requirements in other directives – is one such example, meaning that given permits must be re-assessed on an ongoing basis as regards subsequent and cumulative effects on the environment. Another is a more frequent use of strict environmental standards in different directives which regulate activities that have an impact on biodiversity. Also some of the ideas from the Draft Directive on the Rights of Nature seem to be worth investigating further, such as “ecological impact tracing” – meaning the investigation, analysis and recording of the impact on nature and ecology of a system or method of production. There is also room for provisions that establish clear limits for the impact on certain environmental values, taking into account the cumulative effects of all impact factors. Although I have little sympathy for the criticism of the derogation possibilities under the nature conservation directives – this is, in my view, mostly a question of implementation at national level – both the Birds Directive and the Habitats Directive need reforming in order to be effective. First of all, they ought to be coordinated both concerning the protection required and the listing. Ecological considerations should be decisive for the listing of species in different categories, not national priorities or political compromises. Here, as in other pieces of legislation, the work of independent scientific committees may provide an exemplary model to follow. For example, today, such committees can be found under the Habitats Directive162 and the WFD,163 although their mandate can be expanded and formalised. Finally, the ELD may be reformed in several ways. The strict definition of serious damage, the limitation on activities covered and the wide room for derogation has made this piece of legislation almost obsolete in most of the Member States. There is a clear tendency to overlook ELD, instead using the traditional national schemes for environmental damage.164 Consequently, the EU lacks a general standard on liability for environmental contamination, something that ought to be discussed more. Although the public law basis for the legislation is legally sound from a European perspective, certain ideas may be introduced in order to improve the effectiveness. One such idea is to equip the directive with a compulsory “remediation fund” for the restoration of contaminated areas and destroyed habitats. The financial contributions to such a fund could be raised from taxation of certain categories of environmentally hazardous industry, as well as administrative sanction fees for breaches of environmental law. Some of these issues are raised in the recent report by Michael G Faure to the European Parliament’s Committee on Legal Affairs:

160 Rauset et al (2015). 161 See Åhrén (2016). 162 The Habitats Committee; see https://ec.europa.eu/environment/nature/legislation/habitatsdirective/index en.htm 163 The Common Implementation Strategies under the WFD are recommendations issued by “water directors” from the

Member States; see https://ec.europa.eu/environment/water/water-framework/objectives/implementation en.htm 164 See the European Parliament resolution of 26 October 2017 on the application of Directive 2004/35/EC (the ‘ELD’)

(2016/2251(INI)), also the Member State reports on the application of ELD, all available at; https://ec.europa.eu/environment/legal/liability/index.htm


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Environmental Liability of companies (2020).165 One of his recommendations (no. 2) is to improve access to justice for ENGOs in order to solve collective action problems in cases of widespread pollution.

5.4. Legal personhood and standing

The question about who shall have the right to represent the environment in court is at the heart of the RoN discourse. The reason for this is that behind all statements about the environment having “legal personhood of its own” or “standing in court” lies the undeniable fact that some human being, organisation, or institution needs to represent the environmental interests. Without exception, the answer to this question in the literature on RoN is that all members of society should have this possibility. In other words, actio popularis is a key component of the discourse. The Aarhus Convention – to which 47 countries of the UNECE region are Parties including the EU – rests on a different tradition. Standing for the public concerned may be construed in different ways as long as it allows for a wide access to justice. There may be restrictions for individuals belonging to this category, but recognised ENGOs should always be awarded access to court. Both administrative and court proceedings are required to provide adequate and effective remedies, and be fair, equitable and timely. The costs connected to litigation should not be prohibitively expensive for the public.

Among the Member States of the EU, there are great variations between the legal systems concerning standing in environmental cases. Different kinds of actio popularis exist but are not common.166 Portugal uses this legal construct for standing in administrative law, but the application is strict and allows only for a rather formal review of the contested decision. Something similar can be said about Spain, Slovenia and Romania. The system in Latvia allows for actio popularis, where litigants representing a general interest can challenge environmental decisions in court.167 Regarding constitutional challenges, wider standing is offered at different levels in the legal systems in the Union. The prevailing system for standing, however, restricts the possibility for judicial review only to those members of the public who can show that their interests or individual rights have been affected. In addition, recognised ENGOs by definition have standing in environmental matters. An interesting feature can be found in some legal systems where the court is allowed to evaluate the general interest in the case at hand when deciding on standing. Most legal systems operating in the Member States, however, handle the standing issue separately from the merits of the case in a more formal way, which is why applications for judicial review can be dismissed due to lack of standing even in cases where the decision at stake seems to be in breach of the law.

As noted, this development on this area has been driven by the CJEU that has consistently s tressed the importance of having wide possibilities open to the public concerned to challenge decision-making in environmental matters under EU law to the national courts. Traditional models for standing such as the “protective norm theory” (Schutznormtheorie) have thereby been dismissed. This development can actually be explained as mainly due to the need for an effective enforcement of EU law in the Member States according to the principle of legal protection, although Aarhus is used as a lever. The idea of having actio popularis in environmental cases has been debated, but has never won general traction in Europe.

165 Faure (2020). 166 See Darpö (2013), section 2.2. 167 See Mikosa (2017).


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On the face of it, actio popularis seems to be a more generous model for defending environmental interests or rights in court. However, the RoN discourse has a somewhat romantic attitude concerning the possibilities of going to court, never discussing pros and cons with this rule on general s tanding for all members of the public compared with the ENGO-oriented model of Aarhus and EU law. However, some lessons can be learned from just reading the history of RoN in the literature. This shows that barriers to access to justice other than strict standing rules can be equally effective in shutting out the public, such as high costs, and the need for legal or technical assistance. L it igat ion costs are one of the main reasons why the public concerned in Europe rarely take direct action in court against operators of activities hazardous to the environment. The normal route is instead to appeal administrative acts or omissions in environmental matters. Civil cases have other barriers as well. As already noted, the claimant in Colorado River v. State of Colorado dropped the case after threats of fines or disciplinary sanctions requested by the Attorney General claiming abuse of process. The existence of so-called Strategic Lawsuits Against Public Participation (SLAPP) are also more frequent in countries where civil action is the main avenue for coming to the court; meaning counter suits in order to threaten the litigants into silence.168 Another version of this is to ask for financial security (“bonds”) in case the plaintiff requests the court to stop the hazardous activity by way of injunction. As such bonds are calculated from the cost of the delay of the construction or operation in question, these can amount to considerable sums. The security will be gone if the case is lost, something which obviously has a chilling effect on the willingness to go to court. It is t rue that also the CJEU has accepted such bonds, but those costs are included in what is considered to be acceptable under the general cost rules according to EU law.

Against this backdrop – considering both the different traditions and the widespread resistance to a general introduction of actio popularis in Europe, and the lack of discussion as to why this would be a much better model – there is little reason to abandon the current ENGO-oriented solution for access to justice in EU law. Even as there remain important barriers to access to justice in environmental cases in the Member States – such as high costs and strict criteria for ENGO standing – these can preferably be dealt with through the ordinary instruments for enforcement, that is infringement proceedings (Article 258 TFEU ) or request for preliminary rulings of the CJEU (Article 267 TFEU). As already mentioned, strengthening the role of civil society by way of wider access to justice is also one of the priorities of the Commission for the delivery of the European Green Deal and will be one of the key issues to be discussed during the Conference on the Future of Europe 2020-2022.

In my view, much of this reasoning is also valid for a “human right to a healthy environment”. One may of course argue that this idea entails nothing more than generous standing for representatives of the public in order to challenge administrative action or inaction under duties prescribed in law, which was the successful approach applied in the recent climate cases in Ireland and France.169 In both cases, the government’s inaction was deemed incompatible with their obligations according to the Paris agreement as implemented in national law. But a more radical idea is that each and every person should be able to go to court in order to defend his or her environment in a wider sense, irrespective of what the law says and even if the link between the environmental degradation and the victim is weak. As the case-law of the ECtHR stands today, this latter idea does not have much support. On the other hand, the tendencies in “greening” direction of human rights law are also 168 The expression SLAPP was minted by professor George W “Rock” Pring at Sturm College of Law, University of Denver. His

publication list on the subject is impressive, see: http://www.law.du.edu/index.php/profile/george-pring

169 Friends of the Irish Environment v. Ireland, Supreme Court of Ireland 31 July 2020 (no. 205/19), Commune de Grande-Synthe v. France, Conseil d’Etat 19 November 2020 (no. 427301) and the L’affaire de siècle case, that is Oxfam ao v. France, Tribunal Administrative de Paris, 3 February 2021 (no. 1904967, 1904972 and 1904974/4-1).


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noticeable in Europe and only time will show how far the Strasbourg court is willing to go. The upcoming climate cases will be the first test on this respect.

Having said this, it is also crucial to the EU legal system that those acts and omissions by EU institutions which cannot be challenged in national courts can effectively be brought direct ly to the EU courts. Without going into the details of the C/32 case, it suffices to say that all such decis ions or failures to act under EU law with effects on the environment ought to be challengeable by way of ENGO action. As regards standing , the key point is how to define the other members of the public who are affected by acts of the EU institutions in such a way that they should be awarded standing directly to the CJEU without disturbing the general distribution of roles between that court and the Member States’ courts. Is there a middle way between natural and legal persons who are “directly concerned” and “recognised ENGOs”, so to speak? As this is an ongoing debate in the EU and the issue will be decided at the next Meeting of the Parties to Aarhus in September, I rest my case.

Lastly we must address Article 267 TFEU concerning requests from national courts to the CJEU for preliminary rulings. This is an obligation for the courts of last resort of the Member States when the correct understanding of EU law is not unequivocal. However, this avenue is rarely used in environmental cases and the application rate varies substantially between countries. 170 One reason for this is obviously that these cases often concern operations with important consequences for industry and society, which is why there may be a need to decide quickly on the matter. In other situations, it is more apparent that the court culture in the Member States plays a decisive role. A recent calculation on Article 267 requests from Member States’ courts in environmental cases dur ing the period 2008–2020 gave the following figures: Germany 38, Italy 31, Belgium 22, France 17, the Netherlands 13, Austria 13, Sweden 10, Finland 8, Ireland 8, Spain 6, Greece 6, Hungary 5, Romania 5, Slovakia 4, Poland 3, Bulgaria 3, Estonia 3, Luxemburg 2, Croatia 2, Lithuania 1, Denmark 1, while Czechia, Malta, Cyprus, Portugal, Slovenia and Latvia all had zero requests.171 Even considering the countries’ sizes and populations, as well as the different dates of their accession to the Union, the variations are remarkable. Against this backdrop, the Portuguese youth in their action to the ECtHR claim that the possibility to challenge decision-making under EU law is not an effective national remedy according to Article 35(1) ECHR, which constitutes a reason for why they should be admitted to the Court. We will learn about the Strasbourg court’s position on this issue in due t ime, but even so, the scarce and uneven application of Article 267 obligation is evidently a problem for the EU legal system as a whole. The only practical measure today for remedying the situation is by way of an infringement action from the Commission against the failing Member States under Article 258 TFEU. In my experience, it is extremely rare that this happens.172 Against this backdrop, it is of utmost importance for the effectiveness of EU environmental law that such attempts will increase in order to remind the national courts about their Article 267 duties.

170 Milieu (2019), section 2.5. 171 My warmest gratitude to Ludwig Krämer for the providing of these figures. 172 To my knowledge, C-417/17 Com v. France (2018) is one of the very few cases where the Commission has brought such an

action. The CJEU has, however, touched upon the Article 267 obligations in a great variety of cases in different fields of law, see for example C-689/13 PFE v. Airgest SpA (2016) and the case-law indicated therein.


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5.5. Enforcement

According to Krämer, weak and uneven enforcement is the main challenge for EU environmental law of today, a position which I share.173 With a long history of environmental law and a reputation of being “best in class”, Europe ought to do better. On the other hand, the examples given in the RoN discourse do not point in any direction for improvement, except for the naked statement that “guardians” for "nature" is a way forward. This may be true in societies with less developed administrative infrastructure for the enforcement of environmental law, but does not seem to entail anything new if it is intended as a replacement for the system of EU law. Our system is built upon authorities that control and ensure that the laws are upheld. Proper funding, well-developed administrative infrastructure with specialised personnel as well as transparency are necessary conditions for this model to function. If the administration neglects to do its job, the public concerned must have the possibility to challenge this inaction in court. If the complaint is successful, the court generally has the power to order the administration to do the right thing. This system works fine in theory, and also – from time to time – in relation to clear obligations under EU law. Positive examples of this can be found under the Air Quality Directive174 in respect to the requirements to set up action plans or undertake certain measures.175 But what happens if the author ity takes another decision in breach of those obligations or even refuses to adhere to the court order? That is another issue that needs to be addressed.176

Even so, we have formally speaking a system of enforcement in place which in a way is comparable with that of a guardian, even if the roles of the public concerned and the administration are somewhat different. Guardians and boards of stakeholders are sometimes an important part in our system also as a means for transparency and participation. But the key elements are a funct ioning administration, and that the public concerned is able to challenge administrative action and inact ion concerning obligations to the environment under EU law by going to court. This legal construct will surely be further developed in the case-law of CJEU under the principles of legal protection and useful effect (effet utile). Obviously, it can also be improved if proper consideration is taken when deciding new directives or updating old ones. But then again, when those obligations are implemented into the Member States it is all about money and administrative structures. If proper funding is not given to the authorities for keeping an eye on activities that may have an adverse impact on the environment, no new rules will have any actual effect.

This is also true of a guardian system, and here we have little to learn from the RoN stories. How would two guardians and a board be able to get an overview of the River Ganges, 2,500 km long – twice the length of the River Rhine – with 200 million people living on its shores? A similar point is valid for the lead Colombian case on the Atrato River. Obviously, a handful of guardians cannot protect an area over which the government does not have full control due to the presence of guerrillas and other armed groups in the midst of illegal extraction activities.177 To claim that such a system provides an alternative for the enforcement of environmental law in Europe is plain symbol politics. For an effective enforcement of environmental law, there must be well financed author it ies

173 Krämer (2020). 174 Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner

air for Europe, OJ L 152, 11.6.2008, p. 1–44. Available at: https://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX%3A32008L0050

175 Most importantly, C-237/07 Janecek (2008), C-404/13 ClientEarth (2014), and C-723/17 Craeyenest (2019). 176 As was shown in C-752/18 Deutsche Umwelthilfe (2019). 177 Billy Briggs & Simon Murphy: Guns, gold and guns bring terror and death to 400-mile waterway in Colombia. The Ferret

2019-10-16. Available at: https://theferret.scot/colombia-drugs-river-atrato/


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with full competence to intervene, albeit under the critical eye of the public concerned and the control of the courts.

However, enforcement of environmental law in the EU faces major problems as well. And as above, the RoN discourse contains some ideas that may be worth looking further into. First, the proposal for an Environmental Ombudsman who is able to independently bring environmental cases to court is one such idea. Today, all Member States have a Parliamentary Ombudsman institution but its functions are mostly disciplinary. The Austrian Landesumweltanwalt may be an exception together with the Hungarian Ombudsman for Future Generations and the experience from these institutions will be interesting to follow.178 It may also be fruitful to discuss a similar solution at an EU level, either as part of the existing European Ombudsman, or as a separate institution with administrative muscle.

There are also other ideas about how to improve enforcement in this field of law. One such proposal is the establishing of independent environmental regulatory authorities, along the lines of what the EU has done in the field of economic law to combat conflicts of interest. The idea is simply that the administrative authorities often have to deal with a conflict of interest due to the conflict between the promotion of short-term economic development and environmental protection. Therefore, entrusting the enforcement of environmental law to an independent administrative authority can be relevant to ensure that the long-term, sustainable interests are taken into account. In this context, the idea of having guardians has advantages, particularly in environmental cases where the “ping-pong phenomenon” occurs, meaning that the reviewing court quashes the administrative decis ions and remits the case back to the same body, which then issues another bad decision, and so on. In some legal systems, this is solved by having a rule that enables the court to order the administration to perform according to instructions and report back to the same court for control. This is interest ing, especially if such orders are combined with sanction possibilities. Such an example is the Conseil d’État’s decision from last year, ordering the French State to pay 10 million euro in fines per semester until satisfactory ambient air is reached in eight city zones.179 In certain situations, another solut ion would be to allow some other body or individual person to be responsible for the performance of that order. This possibility exists and is commonly used in Italy, where the administrat ive court may name an individual person – at the competent authority or outside the administration – who will have to answer to the court for the fulfilment of the order, a so-called commissario ad acta. 180

Yet another innovative idea discussed in the literature of RoN has already garnered attention in a European context and that is the possibility for ENGOs and civil society groups to ask for damages on behalf of the environment. As Fasoli showed in a comprehensive study in 2015 covering four countries (Portugal, Italy, the Netherlands and France), this possibility can have different legal designs, from the mere possibility to request of the polluter or the authority reimbursement for the costs of remediation to moral damages that go into a fund to the benefit of the affected environment. The latter system may be combined with such a solution in ELD that was discussed in section 5.3.181

A final view on enforcement. We can discuss new and different ideas on this issue, although the key still lies in proper funding and staffing of the competent authorities, transparency, and involvement of the public, as well as the possibility to challenge administrative action and inaction. But as long as administrations in the Member States can effectively avoid meeting their obligations under EU 178 For more information about the cases mentioned in this section and on the independent Ombudspersons of Austria and

Hungary, see Krämer (2020). 179 Conseil d’Ètat decision 428409 (10 July 2020; ECLI:FR:CEASS:2020:428409.20200710), available at https://www.conseil-

etat.fr/fr/arianeweb/CE/decision/2020-07-10/428409 180 Articolo 114 Codice del processo amministrativo, Libro Quarto, Titolo I – Giudizio di ottemperanza. 181 See Fasoli (2015).


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environmental law, none of these factors will be able to change this situation if there are no sanctions available for that kind of inertia. Accordingly, a reform in this direction would perhaps be the first step to take in order to improve the enforcement of EU law on the ground.

5.6. Nature science and evidence in court

Yet another aspect of the RoN school of thought is the criticism of how nature science and technical knowledge is translated to law. Closely related to this is the competence of the courts deciding in environment matters. The 2017 Draft Directive on the Rights of Nature states that, due to the complexity and interrelatedness of environmental issues it must be ensured that all civil servants, lawyers and decision-makers and judges have adequate training in order to be able to integrate the principles and provisions on RoN fully into administrations and court systems. It is further recommended that the Member States establish specialist environmental courts or tribunals to deal with cases specifically relating to the rights of nature. From a RoN perspective, this is consequential as the legal system ought to be built upon the possibility for the public to go to court and claim that the rights of nature have been breached. In order to succeed in this, the public will present scientific and technical information for the court to evaluate. Of course, this is a simplification since RoN proponents also are aware that there exists more than one version of truth in relation to species, sensitive areas and environmental processes. Actually, in most environmental cases the opinions among technical experts and nature scientists are strongly divergent on a range of issues, be that about the impact of air pollution and noise, the flowing of ground water, or the conservation status of species. On a larger scale, I think we can all agree that what constitutes a satisfactory, decent or ecologically sound environment is bound to suffer from uncertainty. And thus arises the quest ion – paraphrasing Boyle – should we let judges determine whether to preserve the habitat of the white-backed woodpecker or the great crested newt instead of extending an airport or a shopping mall?182

In the EU legal system, the answer is already affirmative. The reason for this is that EU legis lat ion on the environment is often based on complex scientific assessments and legal-technical standards which the authorities must be able to apply in concrete situations. For example, in order to evaluate environmental impacts and risk assessments, the decision-makers must be able to assess s tandards such as “significant impact on the environment” (EIA Directive), “good ecological status” (WFD) or “likely to have a significant effect on the conservation objectives” (Habitats Directive). In addition, “soft” guidelines are used to operationalise the requirements in law. Such instruments with substantial effect on the understanding of EU law are guidelines from the Commission, of which the different guidance documents under the Habitats Directive can be used as illustrative examples . In addition, the application of “proxies” is widespread among the different areas of environmental law. Those are indicators of the status of key elements of the environment, such as IUCN’s Red List of threatened species or the use of “key habitats” and “indicator species” in nature conservation law.

In environmental cases, the assessments made by the authorities are often challenged in court by different actors contesting the legality of the decisions at stake. The ability for national courts to independently evaluate scientific and technical information is therefore of the utmost importance for the effectiveness of EU obligations in this field of law. This in turn requires a certain “intens ity of the review” in court, for which the CJEU has set certain standards. First, EU environmental law requires that the legal systems of Member States manage to perform a legality control of administrative

182 The citation from Boyle (2007) at p. 508, although his examples are species from the Americas.


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decisions and omissions on both procedural and substantive requirements of that law. In some pieces of legislation this is expressly prescribed, whereas in others it follows from the principle of useful effect (effet utile). Further, on a general level, the CJEU has expressed that judicial procedures must enable the national court to effectively apply the relevant principles and rules of EU law when reviewing the lawfulness of administrative decisions.183 In environmental cases the Court has analysed different legal-technical expressions and explained the correct application, strongly emphasising the precautionary principle. This has been the case when assessing permits for projects that may have an impact on Natura 2000 sites 184 or how to undertake an evaluation of the non-deterioration criterion in the WFD185 or a risk assessment for chemicals according to REACH.

This is all well and good as a model, the challenge being that there are substantial differences concerning the quality of judicial review of administrative decisions in the various Member States within the Union. On the one hand, we have reformatory systems where the court decides the case on its merits. Typically – but not always – this also means that the court substitutes the administrative decision with a new one of its own. This is the basic position of judicial review in environmental courts in Sweden and administrative courts in Finland, and it exists for certain categories of cases in other countries as well. On the other hand we have systems where legality control is very formal and the court mostly focuses on procedural aspects of the environmental decision, allowing the administration almost full discretion on the substance of law. This is how I perceive the judicial review under most regimes based on actio popularis or citizen suits in the Member States. Although most legal systems lie somewhere in between these two outer positions, judicial review is commonly cassatory, meaning that the court will either accept the administrative decision or quash it. Nat ional courts’ ability to rightly understand environmental law in all its varieties also depends on a range of other factors such as: the kind of procedure (civil or administrative), who has the burden of proof (claimant, administration or operator), how scientific evidence is produced and controlled (pass ive benches or the ex officio principle), the availability to refer a technical or scientific question to in-house technicians or even technical judges, as well as the availability of advisory boards on such matters, the use of remits to expert authorities, the cost for investigation, and so on.

In this context, the experiences with boards of independent experts created for the sole purpose of helping the administration and courts on scientific issues are interesting. In some countr ies, the EIA procedure is managed by a specially assigned administrative body and concluded with a separate statement in order to guarantee the quality of the investigation.186 Although not binding, these statements normally are decisive when the permit cases are brought to the environmental courts. In the Netherlands, there is the Foundation for advising the administrative judiciary (Stichting Advisering Bestuursrechtspraak, StAB), which is mostly used in environmental and planning law cases.187 With some 40 independent and highly qualified “advisors”, this body provides the Raad van State (Supreme Administrative Court) and the districts courts with answers on specified questions on certain technical aspects in environmental and planning cases.188 In my view, these advisory boards may serve as models for how to handle technical and scientific evidence in environmental litigation.

183 C-71/14 East Sussex (2015), p. 58. 184 C-127/02 Waddenzee (2004). 185 C-461/13 Weser (2015). 186 See Darpö (2019) section 4.2. 187 http://www.stab.nl/Pages/start.aspx 188 See Backes (2018).


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On a general level, the issue of the competence of the courts is already an ongoing discussion in the EU which will have to be followed elsewhere.189 It suffices to say that I concur with the RoN discourse, that the competence of the courts is decisive for the advancement of environmental law in society. To make any proposals on this issue is not an easy task because we must deal with an encounter between the procedural autonomy of Member States and the EU law requirement for effective justice. Even so, it should be possible to set up certain requirements for the experience and qualificat ion of the judges, as well as the availability of expertise in the national court systems. In my view, It is high time to realise that the field of environmental law is enormous and highly technical and thus requires both experience and qualification. The myth about the all-knowing generalist judge is particularly ill-suited in this context.

5.7. Rights of Nature is not a revolution, but…

By now, the reader of this study is aware that I concur with those legal scholars who do not share the view that RoN entails a shift of paradigm in law that has the capacity to save the environment from the challenges we face today. Many of the deficits that this movement criticises modern environmental law for having are general problems that have been discussed for years and which will not be remedied by introducing new labels in a system that still must be handled by humans. The dichotomy between RoN and modern European environmental law is therefore partly artificial, a symbolic construct. Environmental law remains an instrument handled by individuals and – as the history of RoN shows – any alternative discourse of thoughts faces the same challenges as the old schools, most importantly; lofty legislation not adapted to the nature and development of the environment, deferral to economic growth in decision-making, weak enforcement, and lack of funding for environmental interests. When deconstructing the RoN concept, no radical new instruments come to light compared with what we have today.

Even so, the RoN school of thought contains fresh insights in its critique of Western society and presents ideas that can be developed within our conventional legal notions. At the heart of the concept lies the notion that law must adapt to ecological and scientific reality in order to address the main challenges of today, such as climate change and large-scale losses of biodiversity. The limit ing factor for achieving this is not, however, that nature does not have rights, or other basic flaws in our legal system, but the lack of public support for a radical change, and the necessary political will. I cannot think of any reform that lies beyond the present institutional or legal scope of the EU. Environmental and social reforms require decisions through political process, and until the necessary shifts in public attitudes or values occur, the fundamental direction of society will not change.

189 See for example Managing facts and feelings in environmental governance (2019), also the recent Science and Judicial

Reasoning - The legitimacy of international environmental adjudication by Katalin Sulyok, Cambridge University Press 2020 looks promising.


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6. A SUMMARY OF PROPOSALS FOR THE FUTURE

In this Chapter, I summarize the proposals discussed previously in the study. Thus, nothing new is introduced except for a systematisation of the most important ideas touched upon. All recommendations are cautiously formulated as I am aware that the policy choices are not mine to make. What I try to do here, though, is to point to possible solutions of some of the main weaknesses of EU laws on the environment today and their implementation in the Member States. Some of these proposals may seem farfetched, but must be seen in the light of the remarkably poor performance of some of the fundamental obligations under EU law on the environment. Those proposals that seem easier to undertake can be dealt with either in new legislation or in connection with the updating of existing regulations or directives. Ten recommendations are presented, of which the major ity focus on the problem of weak enforcement of EU environmental law. Most of the proposals are in line with the ambitions of the Conference on the Future of Europe 2020-2022 and the Green Deal and may therefore be taken into account in this ongoing work.

1. The introduction of new environmental principles in EU primary law

It may be fruitful to introduce some new principles of environmental law on the constitutional level in EU law. What is lacking is a general principle of non-regression, meaning a prohibition on Member States to undertake measures entailing environmental degradation, or the weakening of environmental laws. Other principles that may be introduced on this level of EU law concern environmental or ecological integrity, as well as a general recognition of the intrinsic value of biodiversity.

2. Stronger adaptivity requirements and environmental standards in EU laws on the environment

Introducing adaptivity requirements in different environmental laws will be crucial for the furtherance of ecological governance. Examples of such rules can currently be found in Industrial Emissions Directive and Water Framework Directive and include the compulsory updating of permits with an impact on the environment, or the imposition of conditions that are flexible as regards certain opposing interests. It can also be recommended to use strict environmental standards in different directives which regulate activities that have an impact on biodiversity. In this context , the idea of ecological impact tracing seems to be interesting to investigate further. Another feature to consider when adopting EU environmental law is a more frequent use of clear limits for the i mpact on certain environmental values, taking into account the cumulative effects of all impact factors.

3. Wider use of legal-technical standards

Moreover, when introducing new EU legislation on the environment it may be worth contemplating how scientific assessments and uncertainties can be formulated by way of legal-technical standards which the authorities must adhere to in concrete situations. The use of such standards is a key component in a legal system where the national courts on judicial review are able to control administrative decision-making. This way, the national courts may effectively apply the relevant principles and rules of EU law when reviewing the lawfulness of administrative decisions at the request of the public concerned or other stakeholders.


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4. Reform of EU Nature Directives

Unpopular as it seems, both the Birds Directive and the Habitats Directive need reforming in order to be more effective. First of all, they ought to be coordinated with each other, both concerning the protection required and the listing of nature types and species. Only ecological considerations should be decisive for the listing in different categories. In order to perform this, it is necessary to strengthen the mandate of the Habitats Committee or to set up an independent scientific committee for decision-making when listing is requested.

5. Reform of Environmental Liability Directive

Another important step would be to reform the Environmental Liability Directive in several ways. The strict definition of serious damage needs to reviewed, as well as the limitation on activities covered and the wide room for derogation. It may also be fruitful to equip the directive with a compulsory remediation fund for the restoration of contaminated areas and destroyed habitats. Financial contributions to such a fund could be raised from taxation of certain categories of environmentally hazardous industry, as well as from administrative monetary sanction for breaches of environmental law. The possibility for ENGOs and civil society groups to ask for damages on behalf of the environment is also worth considering. This legal construct would be possible to combine with the remediation fund discussed mentioned.

6. Regulate the competence and power of the national enforcement authorities

As noted, for effective enforcement of environmental law, there must be well financed authorities with full competence to intervene, albeit under the critical eye of the public concerned and the control of the courts. A way forward in this regard would be to introduce in EU law – either as a component in different regulations and directives on the environment or in a horizontal directive – a demand that the environmental regulatory authorities be independent from those who are subjected to supervision and enforcement. Entrusting the enforcement of environmental law to independent administrative authorities can be relevant to ensure that the long-term, sustainable interests are taken into account. In addition, in order to ensure that the authorities meet their obligat ions under EU environmental law, requirements concerning sanctions against administrative inert ia should be introduced in EU laws on the environment.

7. Power of the national courts

Further, it would be possible to introduce rules in EU environmental law that establish obligations for the competent authorities to report back to the national courts in cases on review. This can be obtained by way of requirements in regulations and directives, enabling the national courts to order the administration to perform according to instructions and report back to the same court. Such a solution would be particularly interesting if combined with sanction possibilities. Also the Italian solution of a commissario ad acta – naming an individual or a board outside the administrat ion who will have to answer to the court for the fulfilment of the court order – would be interest ing to study further.


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8. Competence of the national courts

Even given the notion of procedural autonomy, it may be possible to set up some basic requirements for the experience and qualification of judges who handle environmental cases, as well as the availability of expertise in the national court systems. The main avenue in this regard is obvious ly by the setting up of schemes for education for and cooperation between administrative judges, similar to those already in place through organisations such as ERA, EUFJE, AEAJ. But it should also be possible to complement this by requirements in environmental law for the Member States to set up independent advisory bodies like the ones established in the Netherlands, or obligations concerning remits to expert authorities on technical and scientific topics, and similar solutions.

9. The obligation for national courts to request preliminary rulings by the CJEU

One cannot really claim that the EU forms a legal system as a whole if the Article 267 obligation fails to function at the national level. Against this backdrop, the Commission should be required to step up its efforts to enforce this key requirement, including initiating infringement proceedings under Article 258. Even if this may be problematic in individual cases, it is still possible to review the national courts' activities in this respect and to take actions against a Member State that fails on a more systematic level. As shown above, examples of this certainly exist. Different ways may also be discussed to put more pressure on both the Member States and the Commission as regards the obligation to request the CJEU for preliminary rulings.

10. Environmental Ombudsman at EU level

One idea that could be discussed further is the establishment of an Environmental Ombudsman on both the EU and national levels. A well-functioning Ombudsman institution is already in place at the EU level. One may also consider to award the European Ombudsman with more competence to take action directly against Member States in cases where the Commission fails to do so. One such area may be concerning the Article 267 obligation discussed above. Also in other areas it may prove fruitful for the Ombudsman to have the possibility to initiate infringement proceedings against Member States on systematic issues related to weak enforcement of EU law on the environment.


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7. CLOSING REMARKS

I close this study with a Swedish proverb. By now, after more than 60 pages of describing, discussing and analysing RoN and with not that many concrete suggestions, perhaps the reader feels the same as the old lady shearing the pig, namely “a lot of fuss for little wool”. But as I said at the beginning, that is the chance you take when assigning a legal scholar to do a study on such a novel discourse of law as RoN. Even so, allow me to give some advice for those who will keep doing legal research on this topic, be that in Toulouse, Rennes, Ghent, Copenhagen, Uppsala, Tromsø or elsewhere in Europe. There are two approaches connected to RoN that I find particularly interesting. The firs t is finding a way to facilitate the communication between science and law and how to apply this knowledge basis in court, while still upholding the procedural autonomy of each Member State as well as the effect ive implementation of EU law on the environment across the Union. The second is the legal philosophical discussion about the origin of “rights”, aligning with the French debate on “trias politica” and “droits naturel”.190 Closely related to this is how a human right to a healthy environment can be defined in a democratic society in order to meet the social and environmental needs of present and future generations. Is this a question only about applying international agreements or other overarching instruments on the environment, or are we talking about the courts finding the needs of the environment and future generations from scientific and technical evidence presented before them by representatives for those interests?

190 The literature mentioned in footnote 147 may be good starters for such studies. Also Nordic legal philosophers such as

Aleksander Peczenik and Aulis Aarnio have written important contributions to such an analysis.


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PE 689.328 IP-C-JURI-IC-2020-121

Print ISBN 978-92-846-7934-8 | doi:10.2861/ 769001 | QA-02-21-371-EN-C PDF ISBN 978-92-846-7931-7 | doi:10.2861/ 4087 | QA-02-21-371-EN-N

This study, commissioned by the European Parliament’s Policy Department for Cit izens ’ R ights and Constitutional Affairs at the request of the JURI Committee, explores the concept of ‘‘Rights of Nature’’ (RoN) and its different aspects in legal philosophy and international agreements , as well as in legislation and case-law on different levels. The study delves on the ideas of r ights of nature in comparison with rights to nature, legal personhood and standing in court for natural entities, and analyses ECtHR and CJEU case-law on access to justice in environmental decis ion-making. It emphasises, in particular, the need to strengthen the requirements for independent scientific evaluations in certain permit regimes under EU law. The study also highlights the crucial importance of promoting the role of civil society as watchdog over the implementation of EU environmental law by way of a wider access to justice via both the national courts and the CJEU, which is also in line with the political priorities for delivering the European Green Deal.

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Date post:	03-Dec-2023
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