Human rights as an anthropocentric and individualistic concept

4A human right to a healthy environment is being featured more and more prominently in international human rights law. The Stockholm Declaration of 1972 is considered the first formal recognition of environmental human rights with the reference in its Principle 1 to the enjoyment of satisfactory living conditions in an environment whose quality allows humans to live with dignity and welfare.5 The more recent landmark United Nations General Assembly resolution on “The human right to a clean, healthy and sustainable environment”,6 adopted on 28 July 2022, is an important contribution to a longer process that is by no means finalized, yet. Under the auspices of the Council of Europe, member States have started a debate on an additional protocol to the European Convention on Human Rights,7 on a human right to a clean, healthy and sustainable environment.8 The Inter-American Court of Human Rights (IACtHR) has already confirmed the existence and relevance of a right to a healthy environment as part of the American Convention on Human Rights9 in its 2017 advisory opinion.10

5Despite the praise for the development of new human rights, this does not resolve the old debate and potential tension between an anthropocentric and an ecocentric approach in environmental law, which is reflected in the relationship between human rights and rights of nature. Ecocentrism or biocentrism goes way beyond the anthropogenic notion of environmental protection to maintain services for human survival and well-being. While environmental conservation for human needs and benefits may be an incentive for enhanced efforts – as exemplified by the emphasis on conservation and sustainable use of biological diversity (e.g. in Art. 6 CBD) –, rights of nature are not based upon this concept. Rights of nature are inherently rooted in ecocentrism.

6In contrast, a human right to a healthy environment is and must be anthropocentric and individualistic. This is despite the fact that international environmental law, as codified in international treaties and laid down in soft law instruments, has to be taken into consideration to make the term “healthy environment” meaningful, and to define States’ obligations under international law. However, even if the intrinsic value, for instance of biological diversity, is considered when defining the scope of such a human right, the focus of the human rights regime remains upon the individual human being who may be negatively and significantly affected by an action or omission of a State. Protection of the environment is by contrast less an individual human right; it can be seen as an “unenforceable programmatic norm”.11 Only where a human right to a healthy environment could be established for a broader community interest without the need to demonstrate a direct link to damage to individuals (in the sense of an actio popularis), would it relate slightly more closely to rights of nature. In contrast, rights of nature rely upon the intrinsic value of the environment and an interest in health and preservation that is different from both the individual human interest and the common concern of present and future generations of humankind.

The role of human rights litigation

7Despite these differences, green human rights play a potentially important role in bringing environmental cases to national and international courts. The use of human rights as a means to engage in “climate litigation”,12 for instance to change States’ behaviour in regard to the common interest in the integrity of the global environment, reflects the existence of a relevant gap in international adjudication. It seems particularly difficult to hold States accountable for their international commitments (or lack thereof) in inter-State dispute settlement. Although States’ obligations under international environmental law can be clarified in judicial dispute settlement, the number of “environmental cases” at the International Court of Justice (ICJ) stemming from treaty-based environmental law is very limited.13 Multilateral environmental agreements contain hardly any obligatory dispute settlement clauses.14 Moreover, the need for compromise in international treaty negotiations more often than not leads to vague or ambiguous language, unclear standards and lack of implementation and compliance. While this could leave room for international courts and tribunals to specify standards of multilateral agreements, the obstacles to bring contentious cases to dispute settlement are significant, and States’ willingness seems particularly weak.

8The turn to advisory opinions as potentially more effective to obtain a highly reputable legal opinion on States’ and international organizations’ obligations is another effect of this deficit. The two pending advisory opinions on climate change, one at the ICJ and one at the International Tribunal for the Law of the Sea (ITLOS), are evidence for this. The third pending request for an advisory opinion on climate change at the IACtHR even bridges the scope of human rights and a broader discussion on States’ obligations to mitigate climate change. Advisory opinions from international courts and tribunals, while not being legally binding, can bridge possible gaps by assessing States’ international legal obligations in light of relevant multilateral agreements and customary international law, including environmental human rights and, if rooted in international law, rights of nature. The requests to the ICJ and ITLOS, even to the extent that they would take human rights into account, do not require that individuals demonstrate a violation of their rights as part of the proceedings. Rather, they aim to clarify concrete obligations of States in respect of climate change without the need to prove individual damage. Giving an answer to the questions concerning specific obligations in regard to greenhouse gas emissions and the protection of the marine environment, the judges can consider the rights of current and future generations, for example, to set due diligence standards. However, in contrast to a claim brought to a human rights court or other body, an advisory opinion would not require an individualization of the common interest in climate protection, in the sense that a violation of individual human rights needed to be alleged. The documents collected for the advisory proceedings at the ICJ and the written statements in the ITLOS advisory opinion clearly demonstrate that standards in multilateral environmental agreements, as well as human rights norms, are considered relevant to be taken into consideration by the Court and the Tribunal when specifying States’ obligations. This comes considerably closer to pursuing the common interest formulated by the relevant agreements if compared to the need to rely upon individual harm.

9These considerations, however, shall not undermine the relevance of green human rights. Human environmental rights can be viable instruments if and to the extent that violations can be claimed in court. Cases involving breaches of human rights in regard to environmental degradation are frequent on the level of European and Latin American human rights protection. Despite the merits of bringing States to a national (constitutional), supranational or international court or tribunal for an alleged breach of environmental human rights, the necessity to individualize environmental community interest is not the only and potentially not the best means to address the most pressing global problems such as climate change, biodiversity loss and pollution.

Balancing human rights with rights of nature

10If nature were to have rights in and of itself and access to courts, at least the element of individualization in regard to human claimants would be obsolete. Nature would have an acknowledged inherent interest in integrity in a larger context (even beyond particular ecosystems) without the need to include humans in the perspective. This has been framed as a “holistic approach to all life and all ecosystems”.15 Other human interests that are likewise protected by human rights (e.g. the right to property) would need to be balanced with rights of nature and could lead to restrictions to human rights in the name of enhanced environmental protection. Such an approach could lead to shifts in the burden of proof and in the weighing of interests in the attempt to achieve more proportionate results. Despite the distinction in focus and suitability for environmental protection and sustainability on a larger scale, both approaches – environmental human rights and rights of nature – need to be seen and further developed together. They do not exclude or replace one another but need to be analysed in regard to their relevant potential and the thresholds of what needs to be achieved and what degree of damage would be tolerable.

Open questions

11As briefly stated above, in contrast to green human rights, rights of nature are based on the perspective of “ecocentrism” or “biocentrism” and consider nature to be a subject with fundamental rights, including the right “to exist, to survive, to persist and to generate vital cycles”.16 If we consider the issue of rights of nature in international environmental law in more detail, it becomes apparent that there are currently more questions than answers despite the many attempts in academic literature to address rights of nature from different angles, particularly for the national level. Could rights of nature be viably incorporated into the body of law on the international level? Could “nature”, “the ocean”, “fish stocks”, “the climate system”, “the ozone layer” or “Mother Earth” be legal persons in international law? Can the recognized community interest in environmental protection culminate in assigning substantive and procedural rights to the natural entity? In any case, if nature gained legal personhood, it would need to be represented, like a minor in national law. By whom should it be represented? These many questions show only some of the theoretical and practical challenges that legal scholarship and international practice would need to address, if rights of nature were to be lifted to the international level.

Anchors for rights of nature in international treaty law

12So far there is no international legally binding treaty explicitly recognizing rights of nature in regard to any particular natural feature.17 While as early as 1982, the World Charter for Nature18 called for respect for nature, thereby indicating some personality at least on a legal-philosophical level, no formal steps have been taken by international law or international organizations at global or regional level to effectively grant legal personhood and representation to nature or parts thereof. Not even the EU with its well-developed body of environmental law knows explicit recognition or representation of nature as a legal subject. There are, however, traces of or anchors for a potential acknowledgment of rights of nature on the international level, despite the many open questions related to such rights as part of international environmental law.

13A treaty that could theoretically come close to the notion of nature as a legal subject is the UNESCO World Heritage Convention.19 The treaty recognizes chosen natural sites, which are included in the World Heritage List, as the natural heritage and obliges States to grant particular protection. However, while protecting parts of nature as the heritage of all humankind, the Convention relies exclusively upon the States in whose territory such sites are located and does not recognize the intrinsic value or rights of a site as such. Even where the treaty text states in Article 6, paragraph 1 “that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate”, it does so “[w]hilst fully respecting the sovereignty of the States on whose territory the cultural and natural heritage … is situated”. As with other treaties, nature remains an object. Although the purpose of the Convention is the protection of particular natural features or areas delineated for their universal aesthetic or scientific value, or their relevance as habitat of threatened animal and plant species of outstanding universal value from the perspective of conservation (Art. 2, UNESCO World Heritage Convention), nature itself is far from being treated as a right-holder.

14Most modern international environmental treaties emphasize at least a common concern in environmental protection, yet this concept does not entail rights of nature or legal personhood for natural features in environmental treaty law. Rather, the interest of humankind in its own benefit and survival is a central motivation behind law-making efforts. This is despite the fact that in order to protect parts of the environment that are considered the “common concern”, “concern of the international community” or even the “common heritage of humankind”, concepts like trusteeship or stewardship could be viable tools, thereby providing a potential linkage of these concepts to rights of nature. The critical question any legal paper on rights of nature in international law has to ask is whether the granting of legal personhood to natural features would go so far beyond current international environmental law as to mark a paradigm shift that is beneficial to nature conservation.20 An initial step would be to recognize the intrinsic or inherent value of nature.

Recognition of an intrinsic value of nature

15Starting with the Stockholm Conference of 1972, there was growing recognition of non-anthropocentric values of nature. The World Charter for Nature had already referred to the uniqueness of every life form “warranting respect regardless of its worth to man”.21 Likewise, the Convention on Biological Diversity (CBD)22 mentions the intrinsic value of biological diversity in the first paragraph of its preamble. The preamble is a non-legally binding but programmatic part of the agreement. Its terms guide the interpretation of a convention’s binding articles. Despite examples for recognition of intrinsic or inherent value of nature, treaty law in the field of environmental protection often tries to use incentives to enhance implementation and compliance. In this sense, pure ecocentrism is hardly found. The CBD does not refer exclusively to the conservation of biological diversity based upon an intrinsic value, but it does mention its sustainable use and, consequently, its anthropocentric value.

16The intrinsic value of nature is a concept that had been developed and more broadly discussed in environmental ethics before it was included in legal and policy documents.23 In addition to the CBD preamble, soft law instruments such as the Earth Charter,24 adopted in Rome in the year 2000, the outcome document of the Rio+20 Conference, “The future we want”,25 and the Universal Declaration of the Rights of Mother Earth, which was adopted in 2010,26 all refer to an intrinsic value of biological diversity. Most notably, the Global Biodiversity Framework, which was adopted by COP 15 in 2022, makes explicit reference to “Mother Earth” and different value systems that include “for those countries that recognize them, rights of nature and rights of Mother Earth” as a means for implementation of the framework.27 As the most recent example, the preamble to the new Agreement under the United Nations Convention on the Law of the Sea, on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ Agreement),28 uses the words “inherent value of biological diversity in areas beyond national jurisdiction”. The general principles, which are formulated in Article 5 of the BBNJ Agreement, refer to inter alia an ecosystem approach, the important role and rights of indigenous and local communities, and the common heritage of humankind. While these are all indications of anchors for rights of nature, not surprisingly, the negotiating States did not include in the agreement the legal personhood or representation of marine biological diversity in areas beyond national jurisdiction.

17It follows that recognition of an intrinsic value of biological diversity, even if taken together with a common interest of the international community or a common heritage of humankind, and recognition of the importance of indigenous communities, is only a potential first small step into the direction of rights of nature in international environmental law. Moreover, the terms “intrinsic” or “inherent” value seem mainly to be reserved to characterize biological diversity. Yet an intrinsic value of biological diversity does not mean that specific natural features, such as specific ecosystems, are likewise assigned the same inherent value that goes beyond anthropocentric ecosystem services. Nor can the recognition be equated with legal personhood for certain natural features.

EU law and rights of nature

18At the EU, rights of nature have been discussed in various working groups. Yet there is no formal recognition of nature or specific natural features as legal persons and right-holders in primary or secondary EU law or, with the recent exception of Spain, in EU member States.29 This is so even though the EU legal system could be described as open to the integration of, for example, an EU Charter of Nature, as has been argued in the relevant study with references to legal “anchors” in EU treaty law.30 In contrast to such a potential codification effort, it has been argued in academia that formal recognition of rights of nature would not be necessary because they are already an inherent, albeit implicit, part of EU law.31 In this sense, the many obligations of member States and individuals towards environmental protection already imply rights by the object of these legal regulations without the need to explicitly acknowledge legal personhood for natural features.32 In essence, this approach would turn the object of regulations for enhanced environmental protection into an indirect or implicit rights-holder, hence granting it subjectivity in substance.

19Likewise, an important role is assigned to individuals and NGOs to bring cases to the EU judiciary system and national courts of EU member States, to litigate substantive rights of nature in the EU.33 EU environmental law is particularly elaborate, with comparably high standards and with specific rights granted to NGOs to file legal claims for nature. The latter is due to EU legislation attempting to implement more concretely the obligations under the Aarhus Convention,34 and to fill gaps left by this international treaty on participation, access to information and access to legal proceedings.35 Such EU legislation forms part of the national legal orders, either directly in the case of regulations or by acts of implementation in the case of directives. Even if, for the EU, the acknowledgement of rights of nature were merely symbolic because in substance and procedure they had already been granted, this line of argument cannot be transferred from the supranational EU level to the international level.

Challenges for rights of nature on the international level

20Obligations to protect the environment are formulated in significantly weaker terms on the international level, compared to EU law. States owe obligations only towards the other parties to a treaty. Where they owe them to all other States of the international community under customary international law, obligations are even more difficult to establish. Often under both treaty law and custom, they are in the form of obligations of conduct, not obligations of result. Consequently, the core of the obligation has to be established by reference to due diligence under specific circumstances. Even obligations that are owed erga omnes – such as (arguably) the obligation to protect and preserve the marine environment, for example – have to be interpreted and made applicable in a particular context. To conclude that such obligations grant sufficiently clear, albeit implicit, rights to nature compared to the standards of EU law, when not even the content of the duty is easily identifiable, is difficult to defend. In addition to vague wording of treaty texts, usually non-obligatory inter-State dispute settlement and mere observer status for NGOs add to a certain weakness, if compared with the supranational regional level.

21Even if treaty law granted rights to natural features, one could question whether formal substantive rights on the international level could be more than symbolic. This discussion has been an integral part of the discourse from the outset. The recognition of substantive rights would nevertheless be a prerequisite for representation and participation in negotiations and dispute settlement and, as such, an important first step. This is despite the argument that substantive rights of nature do not necessarily have to result in legal personhood, when other entities have both the right and the duty to protect the substantive rights of a natural entity.36 It is difficult to construe, however, that nature could have legal personhood and procedural rights if there were no underlying substantive rights. If an international treaty stipulated that “marine biodiversity in areas beyond national jurisdiction has the right to recognition of its intrinsic value, preservation and integrity”, such an acknowledgement would actively provide for another “player” with a clearly formulated interest to offset States’ interests with regard to substantive rights. The next step could then be recognition of legal personhood that leads to representation in decision-making and access to courts and tribunals to provide for a strong procedural element.