Rights of Nature: “Subjectification” of nature from the point of view of international law, in particular human rights law

Research topic and Roadmap

‘Should Trees Have Standing?’ More than 50 years ago, legal scholar Christopher D. Stone already pondered a possible legal claim to the protection of trees. Today, the idea of original ‘Rights of Nature’ is more present than ever in view of the noticeable effects of climate change and man-made environmental destruction: nature is suffering from human use – from factory farming and whaling, the clearing of rainforests to establish agricultural land and the disposal of toxic industrial waste in nature, etc. Nature is predominantly perceived as a mere object, and environmental protection as well as nature conservation are often undertaken solely in favour of humans.

However, such anthropocentrically motivated protection of nature may fall short of effective and efficient protection of nature for its own sake, and reinforces the perception of nature as a mere object. Against this backdrop, various national legislatures and judiciaries have in recent years declared ‘nature’ – which in its diversity is the epitome of all being for many peoples, religious communities and cultures and, in this capacity the basis, of all life, not just human life – and/or individual natural objects such as rivers or mountains to be legal subjects and recognised them as having their own rights. Examples include the case of the Whanganui River in New Zealand in 2017 and the granting of subjective rights to ‘nature’ or ‘Pachamama’ by the Ecuadorian constitution in 2008. In September 2021, the Parliamentary Assembly of the Council of Europe called for the protection of the intrinsic value of nature – in light of the interrelationship between human societies and nature – and pointed out that environmental protection based on an anthropocentric and utilitarian approach prevents natural elements from being afforded any protection per se.

In terms of (international) law, however, the image of nature as a legal subject could come into conflict with the anthropocentric world view of Western civilisations, which, like today’s human rights protection system, focuses on the human being. Since Western ideas have become formative for international law due to its European provenance, the different approaches at international level appear particularly interesting and raise the question of the adaptability of the international legal order. This is due to the fact that, according to Western understanding, nature, in its capacity as an object recognised by man, is predominantly not granted any subjective rights. Ultimately, this means that nature is solely dependent on humans for its protection. However, the resulting protection gap could potentially be closed by changing the perception of nature – away from an object and towards a subject. If nature were the owner of its own subjective rights, these could be asserted directly ‘in the name of nature’ in court, for example, in order to stop and prevent environmental pollution or destruction more effectively.

The three-year research project, funded by the Ludwig Boltzmann Gesellschaft, examines questions of international law and, in particular, human rights law in the context of the possible subjectivity of ‘nature’ under international law.

Research Focus

The implied change of perspective in the perception of ‘nature’ raises various questions of international law, not least human rights law, e.g.:

• Does a ‘subjectification’ of nature change the dichotomy of legal subject und legal object?
• What opportunities and risks does a ‘subjectification’ of nature hold for the current international law system?
• What added value do original ‘Rights of Nature’ generate compared to the current mechanisms of nature conservation?
• What interdependencies exist between human rights and potential ‘Rights of Nature’?
• What opportunities of perception and enforcement of ‘Rights of Nature’ exist/are conceivable?

Research Method

The research work comprises literature-based research and the analysis of legal texts and court decisions as well as relevant studies. On this basis, questions of international law and, in particular, human rights issues in connection with the granting of subjective rights to nature will be analysed. The aim of the project is to integrate the developments relevant to international law relating to the ‘Rights of Nature’ into the highly relevant human rights discourse in this context. At the same time, the programme line NEWS is to be established in the research field of sustainability.