'On the Phenomenon of the Rights of Nature' by Ágnes Tahyné Kovács in Hungarian Yearbook of International Law and European Law (20240 305-331 comments
To protect natural environment effectively, humanity is constantly on the move. It is looking for solutions beyond the current anthropocentric regulatory models. A novel concept of environmental regulation, the Rights of Nature (RoN), was launched in Europe (2022). A previous EU study (2021) showed that the RoN concept alien to the European regulatory environment is not yet feasible on the continent. Our study highlights a very narrow slice of contemporary legal history. One of the slices of the current 50-year history of environmental law is the emergence and spread of the concept of rights of nature regulation around the world. The aim of this study is to draw attention to this recent phenomenon. Its method is descriptive-demonstrative. This paper is structured according to the geographical location of each phenomenon. It situates the phenomenon of the rights of nature within the regulatory concepts of environmental law and illustrates their common features with examples from around the world. The paper also highlights common features of the RoN concept with EU environmental legislation that make its introduction in Europe unnecessary. At the same time, these global examples show a number of lessons that can contribute to making European environmental law more effective.
Kovács concludes
The legal personality granted to ecosystems has so far been mainly symbolic, and it remains unclear how successful these lawsuits can be in achieving adequate long-term protection of ecosystems. Again and again, questions are raised about possible outcomes: What exactly does the plaintiff want to achieve on behalf of the injured party? Does the plaintiff seek to compel a public authority to compensate for the damage suffered? Does the party want to force another party to pay damages? Who can be held liable for these damages? Can an appointed guardian/guardian/representative be held liable if a river overflows and causes damage? Who has a say in the fate of a transboundary river (e.g. in India, where the Ganges and Yamuna rivers extend beyond the border of Uttarakhand)? If a lawsuit claims that climate change is a threat, how much responsibility does the activity of a particular industry bear in this regard?
However, the increasing number of natural rights lawsuits could set a precedent for national and local governments to take action to protect biodiversity by opposing mining projects that could prove destructive to a particular ecosystem. The lawsuits also draw attention to the environmental justice issues faced by marginalized communities, particularly Indigenous communities that care for and manage these vital natural ecosystems and whose livelihoods and cultural and spiritual practices depend on natural formations.
The European Parliament’s study examined the rights of nature in comparison to the legal personality and position of natural persons before the courts. In particular, it highlights the need to strengthen the requirements for independent scientific assessments in certain authorization schemes of EU law. However, there are strong doubts that the concept of the RoN can find a place in European legal culture. There are two approaches connected to RoN. The first is finding a way to facilitate the communication between science and law and how to apply this knowledge basis in court, while still upholding the procedural autonomy of each Member State as well as the effective implementation of EU law on the environment across the Union. The second is the legal philosophical discussion about the origin of ‘rights’. Closely related to this is how the courts determine the needs of the environment and future generations from scientific and technical evidence presented before them by representatives for those interests.
