Environmental law has exponentially grown in recent decades. However, such law does not allow Nature with a capital N, and its components, to defend themselves autonomously before courts. In recent years, a new legal trend has arisen, aspiring to allow Nature to act alone to defend its rights and interests. Would such practice be viable? The following article will try to shed light to different elements so that everyone can find an answer to that question.

The Conférence du Jeune Barreau de Luxembourg and the Association luxembourgeoise pour le droit de l’environnement (ALDE) held a conference entitled:

“Nature, subject of rights”

The conference was led by:

Mr Charles-Hubert BORN, Professor at the Catholic University of Louvain (UCLouvain) in public law, environmental law and urban planning law; doctor of legal sciences; graduate in Science and environmental management; lawyer; and

Mr Matthias PETEL, PhD student in law (UCLouvain and Harvard Law School), whose researches focus on human rights and climate justice.

The following points were discussed at the conference: 

The classical and historical conception of law and of political ideas has never given way to Nature, nor to the rights of Nature, in the face of the all-powerful human being. Indeed, until very recently, and still largely today, a dualistic conception prevailed. Namely, humanity would be fundamentally as distinct from natural life as superior to it. In fact, Nature had no intrinsic value.

Yet, attempts to give rights (and in particular the right to defend oneself) to a nature attacked from all sides, appeared during the 20th and the 21st century. Despite these incursions of paradigm change, in the European Union whether it is in national laws or in regional institutional texts (such as the Charter of Fundamental Rights of the European Union), nature itself does not yet have access to specific rights or duties and cannot be represented to assert those rights.

Therefore, in accordance with the dualistic and anthropocentric vision, the value of nature has, until today, been that of a tool that humans use for their development and growth. Agriculture, fishing, mining, low-carbon energy production, space used for trade, space used for industrialization or housing, etc. Thus, its protection in law only results from the protection of human rights: an attack on the environment, until very recently and still partly today, is only condemnable if it leads to a serious threat to humanity itself.

And yet, environmental crime is actually a serious threat to humanity. This specific type of crime, the third most prevalent in the world in 2023, is one of the most lucrative existing criminal activities today. It continues to grow, resulting in between $110 billion and $281 billion in losses each year. The increase in pollution levels, the degradation of flora and wildlife, the reduction of biodiversity, the disturbance of the ecological balance and the risks to human health, which are all direct and visible consequences of environmental crime, fuel the climate emergency of our century and put humanity at risk.

It was, therefore, in order to protect humans and the tools that serve them, that environmental law was developed. This environmental law, almost non-existent before the 1960s and 1970s, has developed exponentially over the past 60 years to the point of establishing a particularly comprehensive and protective European legal corpus, compared to the rest of the world. However, environmental law does not give Nature legal personality. Despite the development of environmental law, Nature still has not become a subject of law.

In order for Nature to become a subject of law, its contours must be defined in the first place. Which Nature do we talk about here? What type of subject? Should we, legally speaking, opt for the biocentrism prism, which considers only living beings, as individuals whether they are animals or plants? Or opt for the ecocentrist prism which considers that “recognized by science” ecosystems can obtain legal personality to uphold their rights in court, in particular rights to exist and not be polluted? But then, what about remarkable spaces that are not living beings or ecosystems per se, but nevertheless remaining elements of Nature (Dune du Pilat, rivers, rocks, etc. for instance)?

Moreover, who is able to represent Nature in court? Who will have this legitimacy? What interests can be uphold? How to determine which of two groups with different interests will be the most legitimate to speak in the name of Nature? 

All these questions have no exact answer today. Existing examples of natural elements having been given legal personality and rights, are all different in this respect. Ecuador has recognized Nature, “the Pacha Mama”, in its entirety, as a subject of law in its Constitution in 2008; Spain passed recently a law called the “Mar Menor law”, to protect the Mar Menor lagoon by granting it legal personality (2023); New Zealand passed a law recognizing legal personality to the Whanganui River (2017); Colombia, through its Supreme Court, recognized the Colombian Amazon forest as a subject of law (2018), as well as the Atrato River in 2017.

Although these examples all have a thing in common, none of them were carried by the same person, or underwent the same process, or even have witnessed the same outcomes. The concrete consequences of the arising of these new subjects of law, and therefore of new Nature’s rights, are not conclusive today. Either we do not have enough hindsight to witness them, or the implementation of the defense of those rights has been rendered very difficult, if not impossible. There is thus no harmonization of the rights of Nature today, which prevents consequently any efficient defense of the Nature as a subject of law.  

It is therefore legitimate to deem this concept questionable at a time when European Union environmental law, i although not perfect (the EU nature restoration law is still pending for example), provides a wide protection of our fauna, flora, ecosystems, and allows the preservation and restoration of it.

However, we cannot settle for a Europeo-centric vision only. And it must be recognized that the rights of Nature could constitute a credible alternative tool of protection. A tool of protection for ecosystems, species, or natural spaces in danger, especially in regions of the world where environmental law is, either non-existent, or where authorities in charge to enforce environmental regulations are sorely failing, making them ineffective.

In conclusion, optimism remains. Because what underlies the elaboration of every environmental law or existing actions to recognize Nature as a subject of law, is not only the protection of human interests, as the very Manichean dualistic vision wants to assert. What underlies these legal creations is also genuinely to protect Nature at heart, to protect spaces on which we live, or near which we live, to which we are attached to. There is a heartfeltwill will to respect, protect and conserve the Nature we depend on to live on this Earth.

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