Granting Legal Personhood to Nature in the European Union: Contemplating a Legal (R)evolution to Avoid an Ecological Collapse? (Part 1)

Abstract

Over the past decade, the debate on Rights of Nature as a promising novel discourse within the ever-changing context of environmental governance has gained considerable traction. An increasing number of countries, amongst whom New Zealand and Ecuador, has moved to explicitly grant legal personhood to nature, with some national courts following suit. Underlying this trend is the need to correct the prevailing instrumentalist approach to nature, which sees nature merely as an object. For now, the idea of giving certain procedural and substantive rights to nature has passed relatively unnoticed in the European Union (eu), which prides itself over its set of progressive environmental directives and regulations. This paper, which is published in two parts, posits that a rights-based approach to nature might be relevant for the eu as well, seeing that anthropocentric frames are still permeating many of the eu’s environmental strategies. Having conducted an in-depth case-law analysis of a string of relevant decisions of the Court of Justice of the eu as regards the procedural and substantive underpinnings of Rights of Nature, it is argued that some of the most well-known eu environmental directives, such as the Habitats Directive and the Water Framework Directive, can effectively be used as a catalyst on a path towards a more ecocentric approach to eu environmental governance. That said, the lack of standing for nature in its own right before eu courts, which is at the forefront of the first part of this article, remains one of the most prominent legal obstacles on the road towards a more rights-based approach to nature conservation. In the remainder of this article, it is argued that introducing a rights-based approach through the adoption of a new directive might sound appealing yet would ultimately be unable to comprehensively implement the rationale underpinning Rights of Nature. Seeing that a reform of the eu Treaties in light of a more rights-based approach towards nature appears unlikely for now, the first, concrete manifestations of nature’s rights in the eu will probably be seen at Member States’ level.

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