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New Zealand Journal of Environmental Law |
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New Zealand Journal of Environmental LawLast Updated: 14 May 2024
199
The Rights of Nature in New Zealand — The Future of German
Environmental Law?
Martin Kment* and Katharina Bader†
Nature is becoming entrenched as a legal subject in an increasing number of legal systems all over the world. This entails granting nature rights of its own which can be asserted in a court of law if necessary. In two legislative Acts, Aotearoa, New Zealand has defined as legal entities with rights and liabilities of their own first Te Urewera forest, and second the Whanganui River. This ground-breaking achievement under environmental law sets new standards on the international stage. By contrast, intrinsic rights accruing to nature are still alien to the German legal system. Environmental law in Germany has an anthropocentric orientation. Therefore, nature is seen as a legal object which is destined to serve humans as legal subjects. Today, this fundamental understanding runs from the constitutional level through to simple statutory law. This anthropocentric point of view is however not mandatory. In fact, it would be constitutionally permissible for the German legal system to also recognise nature as a holder of rights, and hence to trigger a paradigm shift in the law from anthropocentrism to ecocentrism. The present article explains both legal systems in a comparison of laws but attempts to approach the topic from the — thoroughly self-critical — point of view of a German lawyer.
*LLM (Cambridge), Professor for Public Law and European Law, Environmental Law and Planning Law at the University of Augsburg and Visiting Academic at the Auckland University of Technology (AUT). Email: martin.kment@jura.uni-augsburg.de.
†LLM (Auckland), lawyer and doctoral student in Germany, alumna of the University of Auckland. Email: katharina.bader@kapellmann.de.
1. INTRODUCTION
Humanity is increasingly being confronted with extreme weather events and ecological disasters. Species extinction, flash floods and droughts are only a few of the challenges the underlying causes of which lie in the biodiversity crisis caused by humans, and in man-made climate change.1 The repercussions of climate change are threatening more than ever to go beyond critical tipping points,2 and this will further accelerate the process of ecological destruction.3 The species extinction that is going on today has now reached such a level that it must be counted among the six most severe species extinctions of the past 540 million years.4 The loss of biodiversity is disrupting processes in the Earth’s entire ecosystem, and hence permanently affecting human habitat. Worldwide about 75 per cent of the terrestrial environment and 40 per cent of the marine environment are severely damaged today.5 Environmental pollution generates three times more diseases and premature deaths worldwide than AIDS, tuberculosis and malaria combined.6 How harmful human behaviour is, especially in Germany and New Zealand, is shown by the “Earth Overshoot Day”. This describes the day on which a country would have used up its share of the Earth’s resources if they were distributed equally among all countries according to the number of their inhabitants. From this date on, every additional resource consumed is at the expense of other countries or future generations. This day was dated on 4 May with regard to Germany in 2022.7 According to the German Environment Agency, therefore, the German
<https://www.eea.europa.eu/publications/soer-2020-executive-summary> at 7.
lifestyle requires the land area of more than three Earths when extrapolated over the global population.8 New Zealand reached its Earth Overshoot Day on 19 April 2022, so that the New Zealand lifestyle in fact requires the land area of 3.3 Earths.9It is evident that the way in which people treat nature needs to undergo fundamental change if ecological disasters are to be overcome. Given that the lifestyle of a society within a state based on the rule of law is particularly shaped by its prevailing legal system, the cause of environmental destruction is at least partly rooted in that legal system. German environmental legislation contains a large body of regulations. Still a general deterioration of the ecological situation could not be prevented. Therefore, it appears questionable as to whether the current approach on how nature is legally categorised can still be regarded as promising of success. German environmental law is conceived along anthropocentric lines. This approach degrades nature to be defined as a legal object which is destined to serve the legal subjects, mainly humans. In this system nature is only protected because of its function as the foundation of human life.10 In contrast, ecocentrism recognises the intrinsic value of nature independently of human interests. A logical consequence of an ecocentric approach is to recognise nature as a legal subject.
Even if rights for nature initially sound somewhat odd to a German lawyer, they are the right tool to appropriately define nature’s status in the legal landscape. Although, nature itself exists independently of whether legal subjectivity is ascribed to it under human law. Nature does not act according to rights (made by humans). However, the main concern of the rights of nature movement is not to enable nature to engage in a specific way. Rights of nature are rather intended to influence human actions in order to protect nature.11 In other words, rights of nature place an appropriate counterweight against fundamental human rights. The concept of rights is particularly appropriate to achieve this goal since humans and the legal system that they have created are already familiar with them. Consequently, it is fairly simple to suitably accommodate the needs of nature using a familiar legal instrument. Given that acknowledging nature as a legal subject is new territory for legal systems within
umweltbundesamt.de/themen/erdueberlastungstag-deutsche-haben-ressourcen- fuer>.
(Scherz, Munich, 1992) at 209.
a Western society, implementing the upgraded legal status of nature by using a well-known tool creates familiarity and acceptance.Mostly, rights of nature are being rejected because being a legal subject is considered a human privilege. This argumentation is not convincing, however, as the New Zealand legislation makes clear. Legal subjectivity does not describe a human characteristic, but rather constitutes something like a character mask created by the law12 disengaged of human substratum.13 Therefore it is necessary to distinguish between the definition of the term “person” used in a general sense as a synonym for the term “human being” and the definition of a (legal) person, which describes the status of a legal subject.14 In this context Kersten correctly points out that legal subjectivity should no longer be understood as determined by status, but rather by interests.15 Hence legal personality can be put on any (legal) object if upgrading its legal status can be justified by a sufficient interest. This applies to economic associations as well as to nature.
Against the background of the ecological crisis today, there is a need for an ecological reform of the law in general and environmental law in particular. Especially as the majority of people demand ecological interests to be taken into account more in legal practice; this applies in Germany but is also likely to be the case in New Zealand. A survey carried out by Ipsos in 2021 on behalf of the Greens/EFA Group in the European Parliament revealed that 62 per cent of the German population are in fact in favour of introducing intrinsic rights for ecosystems, whilst only 18 per cent are against such rights.16 Across the EU even more people, on average 64 per cent, approve of rights of nature.17
For these reasons the time has come to engage in a more intensive discussion on recognising nature as a legal subject in Germany. As New Zealand has already implemented such rights in its legal system, it is worth taking a look at Aotearoa in search of inspiration.
2. RIGHTS OF NATURE IN AOTEAROA NEW ZEALAND
New Zealand incorporated rights of nature into its legislation for the first time in 2014. Te Urewera Act 2014 (Te Urewera Act) recognises Te Urewera, a rainforest in the country’s North Island, as a legal entity. Another rights of nature statute was introduced in 2017 with the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (Te Awa Tupua Act), recognising the Whanganui River as a legal entity. As the names of the Acts suggest, New Zealand’s legislation on the rights of nature can be traced back to the cosmovision of the country’s indigenous population, the Māori, as is also the case in other countries which have included rights of nature in their legal systems.
2.1 Rights of Nature as Indigenous Human Rights
This development was celebrated worldwide as a ground-breaking achieve- ment in environmental legislation. Very few people, however, are aware that this innovative legislation did not stem from environmental activism or the rights of nature movement. The norming of the two natural entities as a legal person was in fact the result of many years of negotiations between Māori and the Crown about violations of property rights under the Treaty of Waitangi.
Large numbers of iwi (tribes) filed complaints with the Waitangi Tribunal as part of addressing colonial crimes, claiming that the Crown had robbed the respective Māori tribes of their land in breach of its obligations under the Treaty of Waitangi. Māori were demanding, in redress of this violation, that ownership of the land and natural resources in question needed to be returned to them. Particularly, Māori wanted to regain control over their ancient land to fulfil their cultural obligation to take care of nature (kaitiakitanga).
The New Zealand Government, however, excluded transferring ownership to Māori from the negotiations out of fear that other iwi might assert the same ownership claims, which would drastically reduce the Crown’s influence in New Zealand.18 Instead, the Western government suggested that the natural
resources in question were to belong to themselves as a legal entity, whilst the Crown and Māori were to exercise control and administration jointly.19Therefore, the intrinsic rights of Te Urewera and Te Awa Tupua result out of resolving a dispute between Māori and the Crown over historic ownership rights.20 Hence, the legal personality in New Zealand legislation is essentially an expression of indigenous (human) rights.21 Given that kaitiakitanga as intended and practised by Māori is based on a holistic understanding of humans and nature, the enforcement of this (human) right, however, leads to an ecocentric construct ultimately reflecting the idea of the rights of nature movement.22 Both Acts use te reo Māori (Māori language), particularly for the information on their purpose and the underlying principles to ensure that it is the indigenous vision which is actually codified, and not a misinterpreted translation.23
Yet, rights of nature as such are not part of the Māori cosmovision, given that respect and responsibility for nature emerges for Māori from their inseparable connection with the natural environment.24 However, as New Zealand features a Western legal system, there was a need to incorporate the indigenous view on nature into this legal system with its means available.25
207 at 215; B Coombes “Nature’s rights as Indigenous rights? Mis/recognition through personhood of Te Urewera” (2020) Espace populations sociétés 1 at 7.
Ruru describes this process romantically as a “marriage of laws”.26 By using a common legal concept, namely that of a legal entity, Aotearoa incorporates its indigenous cosmovision into its Western legal system. Gutmann therefore refers to this legislation as a hybrid concept seeking to reconcile indigenous cosmovision with the Western concept of the legal subject.27
2.2 Te Urewera
In accordance with s 11(1) Te Urewera Act, Te Urewera is now “a legal entity, and has all the rights, powers, duties, and liabilities of a legal person”. Certain rights are not determined in this legislation. As a legal entity, Te Urewera now belongs to itself, and in accordance with s 12(1) Te Urewera Act, it ceases to be vested in the Crown.
Te Urewera Act not only recognises the legal personality of the forest but provides it with the “Te Urewera Board”,28 which is to act as a kind of governor.29 The Board is to exercise and perform the rights, powers and duties of Te Urewera on behalf of and in the name of Te Urewera in the manner provided for in Te Urewera Act.30
The Act, however, aims not only to recognise Māori culture, but also to reconcile Western and indigenous values. Therefore, the Board is made up of members of the indigenous community and the New Zealand Government. The number of Board members from both sides was still in parity in the first three years, with the New Zealand Government and Tūhoe31 each appointing four. This has now been altered to six on Tūhoe’s side and three on the Government’s.32 Thus, Te Urewera Act introduces a system of co-management in which both sides jointly find a way to appropriately manage Te Urewera.
2.3 Te Awa Tupua
The recognition of Te Urewera as a legal entity was followed by the acknowl- edgement of the legal personality of the Whanganui River in 2017 under the term “Te Awa Tupua” based on a 2012 settlement between the Whanganui
M Kramm “When a River Becomes a Person” (2020) 21(4) Journal of Human Development and Capabilities 307 at 309.
iwi and the Crown.33 As indicated by the Māori name for the Act, the view of the indigenous inhabitants of the Whanganui is incorporated into Te Awa Tupua (Whanganui River Claims Settlement) Act, and Te Awa Tupua is now also understood legally as an “indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and meta-physical elements”.34 Therefore, this definition includes not only the physical elements of the river, that is the water, the riverbed and its tributaries, but also its cultural and spiritual significance. As a consequence of this separate identity of the river, Te Awa Tupua Act logically norms it as a legal entity with all the rights, powers, duties and liabilities of such.35Furthermore, Te Awa Tupua from now on belongs to itself. Unlike the case of Te Urewera forest, however, it is not the entire Te Awa Tupua area that is to be owned by the newly created Te Awa Tupua legal entity. Section 40(1) Te Awa Tupua Act provides that only ownership of those parts of the riverbed that are vested unrestrictedly in the Crown will be transferred to Te Awa Tupua. Hence, the provisions of Te Awa Tupua Act do not affect existing ownership rights of private individuals or companies.36 What is more, ownership of the water of the river is also not transferred to Te Awa Tupua.37 Although Te Urewera Act and Te Awa Tupua Act establish the legal personality of individual natural assets and thus use the same approach, the two statutes differ fundamentally in detail. In particular, the administrative structure of Te Awa Tupua is much more complex than that emanating from Te Urewera Act. This is a result of the fact that the management concept of Te Awa Tupua, other than in the case of Te Urewera, provides for three different bodies to be established, namely Te Pou Tupua, Te Karewao and Te Kōpuka. Te Pou Tupua, the actual representative of the river, consists of two persons, one of whom is appointed by Māori with interests in the Whanganui River, and one by the New Zealand Government.38 In performing its functions, Te Pou Tupua is provided with the advice and support of Te Karewao and Te Kōpuka.
3. RIGHTS OF NATURE IN GERMANY
Whilst intrinsic rights of nature have already found their way into the legal system in New Zealand, at the other end of the world, in German law, one still searches for them in vain. Unlike Māori in New Zealand, people in Western culture have distanced themselves from nature more and more over the years. In Germany the relationship between humans and nature is understood as a relationship of dominance. Therefore, a prevailing anthropocentric view of nature which has led to a division between humans and nature dominates the German legal landscape. The natural environment is at the disposal of human beings as a matter of principle as a mere legal object. Even if this principle is not completely unrestricted and devoid of liabilities, the focus is placed on the function of nature as a resource, thus laying the foundation for an anthropocentric exploitation of nature.
3.1 The Framework of Environmental Law in Germany
Even though Germany, as New Zealand, has a legal system along Western standards, the structure adopted in the German legal system is quite different from the New Zealand one. First of all, Germany is a Member State of the European Union, hence German law is highly influenced by European law. Especially when it comes to environmental law the EU enjoys a wide span of competencies. In addition, national legislation is subdivided into constitutional and simple statutory norms. Unlike New Zealand, the Federal Republic of Germany has a classic constitution, the Basic Law (Grundgesetz — GG), as the overarching basis for simple statutory law. (Environmental) legislation in Germany is, therefore, distributed among various levels.
At the constitutional level, nature is reflected in art 20a GG as natural resources. This article provides for the protection of natural resources and animals, and also responsibility towards future generations as a state objective provision. The German Grundgesetz does not mention the terms environment or environmental protection. The term nature conservation did find its way into the constitution, but only made it into federative provisions on the distribution of responsibilities between federal and state governments.
As a state objective provision art 20a GG addresses the State and outlines a specific programme of state activity, which is why this describes a guideline or directive for state action.39 Therefore, the provision neither entails an obligation
39 Federal Minister of the Interior/Federal Minister of Justice (eds) “Staatsziel-
on private individuals, nor is it possible to derive a subjective right from this norm.40 The explanatory memorandum to art 20a GG explicitly comes out against entrenching individual legal positions in the provision.41 Consequently, art 20a GG cannot be invoked against individuals, nor can an individual invoke it and assert any rights. Thus, it is not possible to base any rights of nature on art 20a GG either.Human interests, by contrast, are secured by a large number of fundamental rights in the Grundgesetz and therefore can be claimed. Even so, a certain protection of nature can be achieved as an annex via asserting fundamental human rights.42 The main focus of guaranteeing fundamental human rights, however, is placed on the freedom to intervene in nature. Particularly relevant in this context are the freedom of occupation pursuant to art 12 GG, freedom of property pursuant to art 14 GG, as well as general personal freedoms pursuant to art 2(1) GG. These rights mostly enable humans to behave at the expense of nature.
Principally, art 20a GG may have a restricting effect on these fundamental rights. With the introduction of art 20a GG, natural resources have been regulated as an object of protection at a constitutional level.43 Given that there is no hierarchy within constitutional norms, natural resources initially take equal priority alongside fundamental rights. Article 20a GG may especially be relied on as a constitutional barrier with regard to fundamental rights without a statutory reservation.44 The situation is less unambiguous with regard to the
bestimmungen/Gesetzgebungsaufträge, Bericht der Sachverständigen- Kommission” (1983) at 21.
NVwZ 1148 at 1149; order of 10 November 2009 — 1 BvR 1178/07 (2010) NVwZ 114 at 116; Federal Administrative Court [BVerwG], order of 19 December 1997 — 8 B 234/97 (1998) NVwZ 1080 at 1081; M Schladebach
“Staatszielbestimmung im Verfassungsrecht” (2018) JuS 118 at 119; M Kment “Die Umweltverfassungsbeschwerde — Unionsrechtlich erzwungener Rechtsschutz von Umweltverbänden gegen die gesetzliche Standortwahl eines atomaren Endlagers” in M Kment (ed) Festschrift für Hans D. Jarass zum 70. Geburtstag (CH Beck, München, 2015) 301 at 310; and J Kersten “Relative Rechtssubjektivitä — Über autonome Automaten und emergente Schwärme” (2017) 37(1) Zeitschrift für Rechtssoziologie 8 at 13.
limitation of those fundamental rights with a statutory reservation. At least art 20a GG provides a legitimate goal for the limitation of these rights, as well as a certain “constitutional back-up” in favour of natural resources within the consideration process to decide on the limitation in each case.45However, the protection of natural resources is taken into account “merely” as one interest among others relevant in the consideration process. Article 20a GG neither attributes general priority to the protection of natural resources,46 nor guarantees optimal environmental protection,47 and still less does not even require a certain level of environmental protection.48
It becomes clear that the provision was well-intended and has certainly contributed to an urgently needed upgrading of natural resources as an object of protection with constitutional status.49 In practice, however, art 20a GG, and, therefore, also the purpose that it pursues, leads more of a “shadowy existence”.50 The Federal Constitutional Court, the highest court in Germany, has only had to address art 20a GG in roughly 30 decisions, even though art 20a GG was implemented into the constitution in 1994.51 Nevertheless, this shadowy existence was considerably brightened by the Federal Constitutional Court’s “Klimabeschluss” (climate change decision).52 In this decision the Court attributed a major role to art 20a GG in its statement of the case, and
2649; D Murswiek “Art. 20a” in M Sachs (ed) GG (9th ed, CH Beck, Munich, 2021) at 72; R Scholz “Art. 20a” in R Scholz and others (ed) GG (looseleaf ed, 97th supplement, CH Beck, Munich, January 2022) at 42 and following; I Appel “Europäisches und nationales Umweltverfassungsrecht” in H Koch and others Handbuch Umweltrecht (5th ed, CH Beck, Munich, 2018) at 95; J Wieland “Verfassungsrang für Nachhaltigkeit” (2016) ZUR 473 at 476; S Westphal “Art. 20a GG — Staatsziel ‘Umweltschutz’” (2000) JuS 339 at 340.
judgment of 5 November 2014 — 1 BvF 3/11, BVerfGE 137, 350 at 47; and K Gärditz “Art. 20a” in M Beckmann and others (eds) Landmann/Rohmer — GG (looseleaf ed, 97th supplement, CH Beck, Munich, December 2021) at 68.
46 See BVerwG, order of 13 April 1995 — 4 B 70/95, NJW 1995, 2648 (2649);
and D Murswiek “Staatsziel Umweltschutz (Art. 20a GG) — Bedeutung für Rechtssetzung und Rechtsanwendung” (1996) NVwZ 222 at 226.
52 BVerfG, order of 24 March 2021 — 1 BvR 2656/18, 1 BvR 78/20, 1 BvR 96/20
and 1 BvR 288/20, BVerfGE 157, 30.
the provision accordingly gained considerable significance.53 The ruling, nonetheless, explicitly confirms the purely objective legal content of the provision.54 According to the Court, art 20a GG does not describe an enforceable norm.Even though the environment’s condition has improved in certain areas as a result of appropriate legislation, contemporary society is faced by more than one ecological crisis. This makes it clear that art 20a GG, as an objective norm of legal protection, was unable to create a suitable counterweight to the fundamental human liberties which are guaranteed by constitutional rights. There is theoretically no hierarchy within constitutional provisions. Subjective rights, however, offer the best possible legal protection because of the procedural power of enforcement that they entail. Subjective rights are indispensable for an equal representation of interests and procedural equality of arms; hence, these cannot be replaced by other objective law constructions.55 Consequently, it must be noted that art 20a GG defends the interests of nature as a kind of second-class interest. Clearly, art 20a GG has failed to protect nature in an adequate manner.
Unlike the Resource Management Act 1991 (RMA) in New Zealand, non- constitutional environmental law in Germany is not covered by a uniform set of regulations but is in fact subdivided along sectoral lines. Provisions of environmental law are spread over different pieces of environmental protection legislation, each of which deals separately with an environmental medium such as water, soil, or nature. In this context, environmental protection is mostly understood as involving hazard prevention and partly as the prevention of risks, as well as encompassing precautionary measures.
The main set of regulations in nature conservation in Germany is the Federal Nature Conservation Act (Bundesnaturschutzgesetz — BNatSchG). This Act does not currently contain any rights of nature. However, § 1(1) BNatSchG acknowledges amongst other things the intrinsic value of nature and a protection obligation based on this. But this “ecocentric ray of hope” only plays a subordinate role in the overall anthropocentric structure of the Act. In particular, it does not lead to any directly applicable action commandments, either for the
53 See also Faßbender, above n 50, at 2087; and C Calliess “Das ‘Klimaurteil’ des Bundesverfassungsgerichts: ‘Versubjektivierung’ des Art. 20a GG?” (2021) ZUR 355 at 356 and following.
54 BVerfG, order of 24 March 2021 — 1 BvR 2656/18, 1 BvR 78/20, 1 BvR 96/20
and 1 BvR 288/20, BVerfGE 157, 30 at 112.
55 M Gruber Rechtsschutz für nichtmenschliches Leben (Nomos, Baden-Baden, 2006) at 165.
State or for private individuals,56 and certainly it does not incorporate a right of nature. On the contrary, the BNatSchG postulates a fundamental availability of nature for human beings. Chapter 3 of the Act provides for comprehensive minimum protection with the “intervention regulation”, the core of which is set out in § 13 BNatSchG. The intervention regulation primarily provides for a compensation model, and only stipulates a restriction on authorisation for projects of environmental relevance in exceptional cases.57 In accordance with§ 13 sentence 1 BNatSchG, only significant and unavoidable adverse effects on nature need be refrained from. The adverse effects are, however, already deemed unavoidable if no reasonable alternatives are available for achieving the purpose of the intervention at the same location with lesser or no adverse effects on nature and landscape.58 Thus, the question of avoidability does not call into question the projects leading to impairment. It is rather a matter of realising the project in the most nature-friendly way possible. In this context the availability of nature as such is not questioned at all. Therefore, the provision describes more an impact management programme than a project prevention regulation.59 An intervention may only not be permitted or carried out if the unavoidable adverse effect can be neither compensated for nor substituted within a reasonable period of time and the interests of nature conservation and landscape protection take precedence over other interests when weighing up all requirements to nature and landscape.60 This wording enables the inclusion of constitutionally guaranteed human liberties in the consideration process,61 which will decide the consideration process to the detriment of nature in the vast majority of cases.
The general availability of nature is only limited within the protection of specific parts of nature. The Act provides for an absolute prohibition of change
Court, order of 17 February 1994 — 10 B 350/94 (1995) NVwZ 308 at 309; and against taking private interests into account in the consideration process see Munich Higher Administrative Court, judgment of 12 March 1991 — 8 B 89.2169
(1991) NVwZ-RR 461 at 462.
in certain protected areas.62 In accordance with §§ 23(2) sentence 1, 24(3) sentence 1, and 24(4) sentence 2 BNatSchG this relates to nature conservation areas, national parks and national nature monuments, as well as in accordance with § 28(2) of the Act to natural monuments. Exceptions to the prohibition of change are only permissible if they can be justified. The situation is similar if projects are likely, individually or in combination with other projects or plans, to have the potential to significantly affect a “Natura 2000” site,63 and the project does not directly serve the administration of the site. Such projects are only permissible where there is a positive finding that the objectives of the protected area in question are not adversely affected by the project.64While environmental protection legislation currently requires justification as encroachments on fundamental human rights, encroachments on nature are not subject to justification given the fundamental availability of nature even against the background of art 20a GG.65 The general protection concept under the BNatSchG primarily does not protect nature against encroachments by people, but merely attempts to deal with the consequences of the fact of nature being fundamentally available to humans. The intervention regulation does not take into account the ecological worth of the part of nature to be intervened in. It applies to nature in general, without any differentiation, unless a more stringent standard of protection is to be applied as a consequence of specific parts of the landscape being actively placed under stricter protection in accordance with the provisions contained in §§ 20 BNatSchG and following. Since this is not the case for the vast share of the environment,66 nature needs to rely on protection via §§ 13 BNatSchG and following. This leads to a situation in which the exploitation of nature encounters very low hurdles under this Act.
Alongside the general availability of nature, the persistent focus on hazard prevention remains one of the main weaknesses in German
1 at 41; and M Kment Die Neujustierung des Nachhaltigkeitsprinzips im Verwaltungsrecht — Lückenschluss in der Nachhaltigkeitsdogmatik nach neuseeländischem Vorbild (Mohr Siebeck, Tübingen, 2019) at 33.
environmental law. For instance, the Federal Emission Control Act (Bundesimmissionsschutzgesetz — BImSchG) and Federal Soil Protection Act (Bundesbodenschutzgesetz — BBodSchG) provide protection against adverse environmental effects and harmful soil contaminations. These two environmental statutes do not regard both an environmental effect and a soil contamination as an adverse effect unless it may cause dangers, considerable disadvantages, or serious nuisance to the general public or to the neighbourhood. This focus on hazard prevention is rooted in the fact that environmental law has developed from safety law.67 This approach meets with criticism because the law on hazard prevention only provides for human freedom to be restricted when a hazard (to people) exists. The term hazard remains the main criterion for assessing what level of protection needs to be maintained and needs to be enforced by the authorities and also can be demanded of those concerned in court.68To demand protection (in court) it is necessary that there is a hazard for the person affected. On the contrary it is not possible to demand specific precautionary measures to be taken in advance.69 Environmental protection, therefore, remains largely a matter of treating the symptoms and should more accurately be referred to as human protection.70
German environmental law also defines precautionary measures in addition to averting hazards. The legal foundations for such measures, however, are not considered as incorporating subjective rights.71 This means that precaution- ary environmental measures cannot be claimed in court.72 Therefore, in practice, the precautionary principle must be assigned a much lower priority than hazard protection. This is regrettable given that, particularly when it comes to environmental protection, it is frequently too late as soon as the danger of environmental impairment, respectively a danger to people from environmental impairment, has already become established.73
68 At 341.
In terms of procedural law, environmental law, as a part of administrative law, is affiliated with administrative jurisdiction. Therefore, the prospective plaintiff must establish standing in accordance with § 42(2) of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung — VwGO) to successfully file a complaint with the administrative court.74 An action to the administrative court is hence primarily only admissible if the plaintiff is able to assert that their rights may have been violated. As a legal object, nature is excluded from legal action a priori. Thus, protecting ecological interests in court requires a violation of a human right to be asserted, or a lawsuit of an environmental group according to the Environmental Appeals Act (Umwelt- Rechtsbehelfsgesetz — UmwRG).
In order to assert one’s own infringement of rights, it must first be clarified whether the infringed provision constitutes a subjective right of the individual wishing to bring an action. A subjective public right constitutes the legal power conferred on an individual by the State on the basis of public law to be able to demand a specific action, toleration, or omission to pursue their own interests.75 According to the recognised German doctrine, the addressee of an onerous administrative act may in any case assert a possible violation of their general freedom to act under art 2(1) GG.76 In environmental law constellations, however, this view tends to play a subordinate role. It will typically not be the addressee of an administrative act, but a third party, who for instance wishes to challenge the administrative approval of a project which exploits the environment, an approval under the law on nature conservation, or the like.
The “protective norm theory” is used in order to determine subjective rights in such constellations where third parties are involved. According to this theory of German law, a norm is an actionable, subjective right when it not only serves to protect the general public but is at least also intended to protect individual interests.77 A provision does justice to this requirement if its protection (also) addresses a group of individuals who can be distinguished from the general
at 374; Sodan, above n 75, at 383; and Wahl, above n 69, at 70.
39, 235 at 237; judgment of 17 December 1973 — IV C 50/71, BVerwGE 44,
public.78 Whether a provision at least also protects individual interests is to be determined both by the wording of the norm and by virtue of its interpretation.79 The protective norm theory shows itself to be of little help in environmental law in general, and in nature conservation law in particular, when it comes to establish standing. As a general legal interest, the protection of the environment is very largely shaped in objective legal terms, instead of giving rise to subjective rights of the individual.80 In the absence of subjective rights, legal standing cannot be established. Hence, the lawsuit would have to be rejected asinadmissible.
These shortcomings in enforcement in German environmental law were considerably reduced by introducing the general standing of environmental groups in a court of law. In accordance with § 2(1) UmwRG, a domestic or foreign environmental group that has been officially recognised in accordance with § 3 of the Act may file appeals in accordance with the VwGO against a ruling under § 1(1) sentence 1 UmwRG or its omission, without needing to assert a violation of its own rights. Lawsuits of such environmental groups are, therefore, not bound by the requirement to assert a possible violation of subjective rights. Rather, this tool may also be used to have adherence to objective law reviewed in court.
Environmental groups usually file a complaint with the court in order to enforce provisions which protect the environment. Therefore, one also could call this the enforcement of natural interests. In terms of standing the possibility of this environmental representative action, the environment is placed on an equal footing with a human plaintiff. This does not however lead to the “subjectification of the environment”. Even if the environment in terms of standing has been given a status similar to that of a human rights holder, this does not de facto establish intrinsic rights for the environment/nature, and nor do these become redundant. Access to the courts alone is not the substance of legal subjectivity. True, the power to demand a legal hearing is a major element of being a legal entity. In addition, however, substantive law must also reflect a subjective legal status of nature in order to provide adequate protection. Even environmental groups can only demand the enforcement of existing legal provisions. However, it is precisely these provisions in their current form that support the exploitation of nature for the benefit of humankind and push nature back into a purely objective position. This circumstance is not solely remedied
235 at 238; judgment of 15 July 1987 — 4 C 56/83, BVerwGE 78, 40 at 41 and following.
above n 69, at 218.
by the possibility of legal action by environmental associations. One must, therefore, agree with Franzius when he speaks of an objectification of legal control instead of a subjectification of the environment.81In addition, the environmental group action does not create a comprehensive control instrument. In particular, the scope of this action does not include sub- legislative norms, real acts, or monitoring measures.82 Furthermore, legislative Acts do not fall within the scope of the UmwRG. Hence, environmental groups are unable to have statutes which they consider to be harmful to the environment reviewed before the national constitutional courts in Germany.83
3.2 Possible Implementation of Rights of Nature
Despite the large number of provisions that it contains, German environmental law does have some weaknesses, as well as a fundamental problem in terms of its anthropocentric orientation. The introduction of rights of nature could form a counterbalance to these weaknesses. Admittedly, rights of nature and the ecological reformation of the law instigated by them do not promise any immediately noticeable improvements in nature overnight. The idea, however, offers a new approach within environmental law that ensures ecological interests to be taken more closely into consideration in legislation and in the application of the laws. Such a paradigm shift is urgently needed in the age of the Anthropocene.84
This view is also shared by the initiative Netzwerk Rechte der Natur which holds the opinion that the environmental legislation only regulates the destruction of the environment, instead of putting an end to it. Against this background the initiative demands the recognition of rights of nature in order to give nature the legal protection that is urgently needed.85
Rights of nature could be implemented in the German legal system in a variety of ways. Similar to Te Urewera and Te Awa Tupua Acts, they could be
96/20 and 1 BvR 288/20, BVerfGE 157, 30 at 136.
conceivably normed in simple statutory law. However, it appears preferable to recognise the rights of nature at a constitutional level in Germany.This is favoured in particular by the fact that the Grundgesetz, unlike non- constitutional norms, does not only oblige the executive and the judiciary, but also establishes a binding framework for the legislature. Furthermore, the Grundgesetz does not only contain legal provisions, but moreover provides an objective bundle of values which the law and society must comply with. It is only by entrenching the rights of nature into the Grundgesetz that the desired impact of greening the entire legal system can be achieved.
In order to do so, the Grundgesetz would have to be expanded to include a fundamental right of nature. This is also the idea of the Netzwerk Rechte der Natur initiative which suggests including the rights of nature in the Grundgesetz in various norms. In particular, the Netzwerk considers it necessary to add a third paragraph in art 1 GG which codifies nature’s dignity as well as mentioning the rights of nature specifically in art 2(1) GG.86
Nature in this context would mean nature as a whole. A fundamental right of nature would differ decisively from the New Zealand approach in this regard. This is because the motivation for recognising rights of nature in Aotearoa is different than in Germany. Rights of nature have not become established in New Zealand law primarily on the basis of ecological convictions. The two aforementioned Acts rather resolved historical property disputes between the Crown and Māori concerning these specific parts of nature by reaching a compromise. Hence, it is understandable that the rights of nature in New Zealand have so far been restricted to the Whanganui River and Te Urewera.
There is no such particular background in German law. Norming rights of nature in Germany would be based purely on ecocentric dogmas of natural ethics, as well as on the practical necessity for greater protection that goes along with these rights. The scientific understanding of the interconnectedness within nature as well as the interactions that go along with it prove that it is not enough to only give rights to individual parts of nature. Certainly, the legislation of New Zealand with regard to the Whanganui River and Te Urewera is a step in the right direction. If, however, one wishes to reform nature conservation (law) as a whole, the recognition of the rights of nature must be extended beyond certain natural resources. Ultimately, rights of nature as a whole goes hand in hand with the legal subjectivity of the individual components of nature, such as plants, animals, or ecosystems.87
The wording of a fundamental right of nature can be formulated in different ways. It could, for instance, be based on art 1(1) or art 2 GG. In the same way, the regulation could take Te Urewera and Te Awa Tupua Acts as an orientation by entrenching nature as a legal entity in the Grundgesetz with all the rights, powers, duties and liabilities of a legal person. The precise wording of such a fundamental right of nature in the German constitution is ultimately not decisive as long as it communicates that nature is to be a legal subject and at least its existence is to be protected and conserved. This fundamental intention can also be found in New Zealand’s law on Te Urewera and Te Awa Tupua. These also “only” recognise Te Urewera and Te Awa Tupua as legal entities with rights and duties. The law does, however, not regulate any further distinction.What is more, the concrete shaping of the fundamental right of nature must demonstrate that this is to be operated as a restriction on fundamental human rights.88 In this context, it is important that a fundamental right of nature is also characterised by fundamental openness and flexibility, since constitutional provisions, in addition to their subjective legal quality, also have an objective impact as a general programme and values. A concretisation of the fundamental rights of nature will be carried out thereafter by case law and by the non- constitutional legislature, as is the case with existing fundamental human rights. Since provisions of constitutional law are characterised by interpretation by the executive and the legislature, the specific wording of constitutional provisions is not the all-decisive criterion. The wording of a norm provides an (important) indication for its interpretation, but indeed no more than that.89
3.3 Impact on the German Legal System
Even though rights of nature do fit into the German legal system with regard to the choice of legal instrument, in terms of content these deliberately include a different view than the fundamental anthropocentric orientation of the German legal system.
Therefore, recognising nature as a legal subject in the Grundgesetz would lead to an ecocentric shift within the German constitution. As a result, recognising the rights of nature in the constitution would lead to a gradual greening of the entire legal system. A constitution which recognises the legal subjectivity of nature will bring forth other legal provisions in qualitative terms than a purely
Mitwelt — Eine Kritik des Umweltrechts am Beispiel des Naturschutzes” (2012) ZfU 376 at 395.
anthropocentric constitution which merely regards nature as a legal object that is to benefit people.90 Moreover, the rights of nature would have to be taken into consideration as part of the overall constitutional interpretation. Constitutionally entrenched rights of nature would of necessity lead to a departure from the legal system of anthropocentrism.A similar effect is hoped for in New Zealand by norming Te Urewera and Te Awa Tupua as legal entities. A decisive task to be carried out by the legislation in the initial years is to bring the awareness of the public and of decision-makers closer in line with the cosmovision held by Māori.91 This is to achieve harmonious cooperation between the authorities and Te Pou Tupua, as well as with the Te Urewera Board. This in turn will help create administrative structures that are beneficial to dealing with nature in general, and with Te Urewera and Te Awa Tupua in particular, in a gentle manner in the long run.92 The laws on intrinsic rights equally set the stage for a rethinking in society and make it clear that humans and nature are on an equal footing legally. The law is frequently in the rearguard of social developments. With regard to the intrinsic rights of nature in New Zealand, the law can now also serve to trigger and consolidate social change.
At least in Germany, greening the law requires a more sufficient equipment of state agencies with specialists in nature conservation. Whilst the legislative and the executive power are already able to rely on some specialist agencies, the judiciary in particular has no such opportunity. A consequence of constitutionally recognised rights of nature would be that the specialist offices of the authorities would have to be further expanded or supplemented by official agencies introduced to enforce the rights of nature. In addition to this greening of the legislature and the executive, there is a need for greater specialist support for the judiciary in terms of nature conservation. The courts can already rely on corresponding specialists, but it is worthwhile in this context to take a look at the other side of the world once again. In Aotearoa, legal disputes under environmental law are being heard and ruled on by a dedicated Environment Court. In addition to a judge these courts are usually staffed with Environment Commissioners who as non-legal specialists have expertise in resource
92 At 273.
management.93 The fundamental concept involved here — namely, to provide the court with specialist interdisciplinary knowledge — could also be used in Germany in order to integrate special environmental chambers into the administrative courts. These environmental chambers could consist of two individuals with a specialist qualification in nature conservation in place of the two honorary judges.
4. CONCLUSION
Rights of nature have not been established yet as a part of the German legal system. The majority of the public, however, is in favour of nature being a legal subject. Also, there is a general demand to acknowledge the fundamental importance of nature legally. Therefore, recognising rights of nature is no longer an unrealistic expectation. Moreover, the legislation in New Zealand makes it clear that it is quite possible to implement intrinsic rights of nature in a Western legal system.94
Rights of nature may not be a short-term overall solution or even assure completely overcoming the ecological disasters of our time, in either New Zealand or in Germany. Ultimately, recognising nature as a legal entity will not prevent environmentally harmful practices overnight. The rights of nature do, however, create a possibility to address such practices in processes in which nature itself is given a voice.95
The current condition of nature in Germany makes it clear that anthro- pocentric environmental law has not succeeded in guaranteeing an adequate protection of nature. Therefore, there is a need to discuss alternative concepts as put forward by New Zealand law. Rights of nature describe a path that deviates from the current one, and which lends greater attention to ecological interests than is presently the case. This inevitably changes not only administrative activity but also the quality of law-making. Therefore, recognising rights of nature can make a major contribution to the urgently needed greening of the entire legal system in Germany.
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URL: http://www.nzlii.org/nz/journals/NZJlEnvLaw/2022/9.html