1. Blurry Definitions

Since the 1980s, there have been individual contributions, studies and proposals on the Rights of Nature worldwide. The idea has been well researched in the international literature on legal theory, legal philosophy and political ecology. It was not until their recognition in Ecuador's constitution (2008), as well as through court rulings and legislative changes in various countries that a broader public debate was initiated. This has popularised the idea of Rights of Nature, but has also led to simplifications, misunderstandings and polarisation.

2. Ambiguity

As a concept, the "rights of nature" are a double-edged sword. Rights fit into the image of the Western legal tradition, which is based on individual rights. Those who have rights count, those who have no rights do not. This view often ignores that there can be no rights without duties and that the effectiveness of human rights is also dependent on corresponding duties (as expressed, for example, in the Hague Principles of 2018).

The "neglect of duties" of rights gives rise to the danger that Rights of Nature are misunderstood as a mere extension of the catalogue of individual rights (of natural or legal persons).

This can lead to unhelpful trade-offs between competing individual rights. A river, a network of landscapes or an animal endowed with legal subjectivity thus stands in direct opposition to the property rights of an industrial corporation, for example. This can certainly make sense in individual cases, but it entails the risk of overlooking ecological realities and interrelationships, thus blocking the way towards a fundamental change in the relationship between humans and nature.

3. The ecological framework of the rights of nature

From an environmental ethics perspective, the concept of Rights of Nature makes sense insofar as it serves to overcome Western anthropocentrism. The focus should not be on humans as such - and certainly not on the Western individualised person - but on the relationship between humans and nature, as it is still understood in many cultures, especially indigenous cultures, but also as part of pre-industrial Western cultural history.
 
From a historical-philosophical perspective, this relationship can be conceptualised either dualistically, i.e. categorically separate, or dialectically, i.e. interdependent. In the prevailing tradition of dualism, anthropocentrism and ecocentrism appear as a pair of opposites in which ecocentric thinking is interpreted as either impossible or confusing. In contrast, in a dialectical or holistic mode of thinking, not only is everything interconnected, but it is the relationships themselves - not "man" or "nature" - that take centre stage. In science, these interrelationships are the subject of ecology (insofar as it includes anthropogenic influences and repercussions).

This relational perspective must be the basis of the development of society and its normative structuring, precisely because it helps us to leave dualistic habits behind.

The strength of such an ecological ethic is that it can be justified philosophically and anthropologically as well as scientifically. Applied to the system of "rights", the term "ecological rights" is therefore more appropriate than "rights of nature" because it describes the integration of human and non-human interactions. The urgently needed ecological turn is therefore not just about recognising the rights of nature - for example in the German Federal Nature Conservation Act (‚Bundesnaturschutzgesetz‘) – but also about an "ecological rule of law" (‚ökologischer Rechtsstaat‘, Klaus Bosselmann) or an "ecological constitution" (‚ökologische Verfassung‘, Jens Kersten). In this context, the rights of nature can be an important step towards a socio-ecological transformation.

4. Ecological Extensions of fundamental rights

Giving rights to nature can therefore only be a start, and only so if they are related to human and fundamental rights in concrete terms. It is crucial to understand Rights of Nature as (ecological) extensions of the three most important basic principles of Western democracies, namely human dignity, freedom and property.

Human dignity without respect and consideration for nature (in all its life forms) remains meaningless in view of the fact that human beings cannot exist without their natural context. Similarly, the genuine exercise of freedom is only possible within the real ecological scope that exists; respecting this scope does not limit freedom, but rather establishes it. And property without social and ecological ties makes the rich even richer, the poor even poorer and ultimately has a destructive effect on society.

Rights of nature therefore do not stand alongside human rights and do not compete with them, but serve to redefine their content.

The traditional image of man, separated from nature, is extended to an image of man that has become aware of his affiliation with nature. Although this is also conceivable without the rights of nature, it is decisively promoted by a serious discourse on the rights of nature.

5. The path to Ecological Law

The best possible way to anchor Rights of Nature in Germany is subject to debate. For example, one can expect that the initiative for a referendum on the amendment of the Bavarian Constitution (‚Bayerisches Volksbegehren‘) will represent a breakthrough, will be imitated by other federal states and will eventually reach the level of German Basic Law. Or the current German government finally decides to fulfil its leadership responsibilities by initiating a constitutional debate, as happened in Ecuador, Chile or now in New Zealand.

Perhaps it would also be an important sign if the German Federal Nature Conservation Act were to be extended. After all, Bundesnaturschutzgesetz § 1(1) defines the goal of protecting nature and landscape on the basis of "their intrinsic value" (and as the basis for human life and health). However, what is still missing is the ecological dimension.

Nature and landscape are not individual areas (biotopes, protected waters and biodiversity), but rather networked ecosystems that include all forms of life, including humans.

Therefore, the central goal - not only of nature conservation, but of environmental protection as a whole - should be to preserve the integrity of ecological systems, as was established in New Zealand in August 2023, for instance, with the Natural and Built Environment Act and a fundamental reform of environmental law.

6. The principle of ecological integrity

The approach outlined here would also lead to the fulfilment of a central promise of international environmental law, namely the preservation of the integrity of the Earth's ecosystems. Ecological integrity is formulated as an overarching goal in over 25 international environmental agreements: for example in Principle 7 of the Rio Declaration of 1992 ("to conserve, protect and restore the health and integrity of the Earth's ecosystems"), but also in the Paris Climate Agreement (Preamble, Art. 4 and 6). What is missing is the political will of the nation states to recognise this principle as a basic prerequisite for sustainable development. As the fourth largest industrialised country, Germany could play an important pioneering role here.

The principle of ecological integrity is promising because it does not merely aim at securing resources (e.g. ecosystem function), but at the self-organisation and regeneration of ecosystems (for their own sake).

This overcomes anthropocentric, narrow motivations and opens up a perspective that (Western) legal systems have not previously allowed, namely an effective socio-ecological transformation.

7. Rights of nature as an instrument of socio-ecological transformation

The constitutional core of such a transformation is a concept of fundamental and human rights that does not place individual freedom in opposition to the rights of nature but, on the contrary, redefines human freedom through the legal subjectivity of the natural environment and thus enables it in the first place. The (Western) legal systems have so far largely ignored this perspective.

In view of the ecological crisis and in the age of the Anthropocene, ecology-blind legal systems are therefore doomed to failure. Ultimately, they deprive people of their ability to survive.

This will only change when property is no longer ecologically blind and thus destructive of nature, but integrated into ecology.

The political debate on Rights of Nature is long overdue and urgently needs to be conducted because it can lead to a socio-ecological transformation. In fact, it is about anchoring them in the German constitution, as proposed in Germany by the Rights of Nature Network (‚Netzwerk Rechte der Natur‘). "In the name of nature", the German Federal Government is called upon to follow up on this proposal and take practical steps to implement it at constitutional and legislative level.

^{Translated from German by Imke Horstmannshoff.}

Klaus Bosselmann is Professor of Law at the University of Auckland, New Zealand. He is Chair of the Ecological Law and Governance Association (ELGA) and until recently headed the New Zealand Centre for Environmental Law.

Links & Literature

• Rights of Nature network Germany: Netzwerk Rechte der Natur https://www.rechte-der-natur.de/
• Bavarian petition: Bayerisches Volksbegehren Rechte der Natur: https://gibdernaturrecht.muc-mib.de/
• Klaus Bosselmann (1992).Im Namen der Natur – Der Weg zum ökologischenRechtsstaat. Scherz.
• Klaus Bosselmann (2015). Earth Governance: Trusteeship of the Global Commons. Edward Elgar Publishing.
• Jens Kersten (2022). Das ökologische Grundgesetz. C.H.Beck.