Question: In your view, is it necessary and desirable to recognize intrinsic rights to Nature? What would be the added value compared to other legal tools such as access to justice for nature protection associations, environmental criminal offenses, pure ecological harm, ecocide crime? How to implement such rights? Should the legal judicial systems be adapted with – for instance – specialised environmental Courts? Is there a risk of having judges making policy rather than applying law?
A healthy environment is extremely important. “Intrinsic rights to nature” can contribute to that goal in concrete cases.
The questions are, however, too abstract to answer them in a meaningful way in a few minutes. That goes more generally for the debate about sustainability and climate change. It rains laudable declarations. There is a genuine believe that “something” must be done. Corresponding action falls short.
Almost every human activity has an adverse impact on the environment. Take the emission of GHGs. It is impossible to reduce global emissions to zero overnight. A right to leave nature untouched amounts to an unachievable goal. Hence, we must explain what is meant by “intrinsic rights to nature”. Otherwise it is difficult to answer the question whether such rights are “necessary and desirable”.
The flip side of a right is an obligation. Little or no progress can be made if we cannot formulate concrete obligations of single players (States and enterprises).
There is regrettably little appetite to enter into such discussions. An international group of experts has launched detailed climate obligations of States and enterprises: the Oslo Principles and the Principles on Climate Obligations of Enterprises; an update of the Enterprises Principles is forthcoming; see our group’s website www.climateprinciplesforenterprises.org. The Principles are supported by many distinguished members of the judiciary and academia. Why are the others absent?
Liability for pure ecological harm covers a wide area, including the adverse consequences on nature of climate change. Because the aggregate of present and future losses will be beyond imagination, generous liability right now means: no money will be left for future victims. However sympathetic compensation of pure ecological loss is – if spent usefully – victims and courts may feel temped to open the floodgates because deterioration of the environment is often paired with major injustice to people (present and future generations). A focus on liability requires a broader view, encompassing all relevant interests, on how to balance the diverging inter and intra-generational interests, in particular the interests of the most vulnerable people and countries. Nature is of crucial importance, but not all that counts.
Case law from around the globe illustrates that NGOs often are the drivers of change. Empowering NGOs to serve as plaintiffs in case of f.i. impairment of the environment is useful. It removes one hurdle to victory, although courts outright unwilling to come on board will find other reasons for not rendering useful judgments.
“Judges making policy rather than applying the law” is the flipside of abstract talk. If the law only offers very open legal norms (say “intrinsic rights of nature”) courts have to interpret such norms. Most courts try to align with the changing demands of society; the law as a living instrument as the European Court of Human Rights put it. That unavoidably means that such an interpretation is coloured by policy arguments. Don’t make a mistake: conservative judgments also hinge on policy, albeit conservative policy.
The law as it stands offers ample of opportunities to avert further deterioration of nature. Abstract discussions tend to distract from what should be our first and foremost priority: avoiding catastrophe.
It is important to explore strategies to create a better world. We can only be thankful to the EU Commission for its creativity and willingness to take the lead where many others lean backwards.