How do you expect to communicate with the Ocean.

if you can’t even understand one another? (Lem, 1987)

1 Introduction

The destruction of ecosystems, the worldwide extinction of species, and the global warming are progressing rapidly. Yet political attempts to counteract these trends are having little effect, partly because there is a lack of political will; national economic interests are given priority and major players, such as transnational companies, are not sufficiently involved in compliance with environmental protection regulations, they even sometimes act destructively to weaken the provisions. The following contribution is therefore based on the assumption that nature is inadequately protected. If they are left to the good will of states and economic actors, and if they are not protected institutionally in such a way that the existing gaps in legal protection are closed, they will have a hard time surviving. We should think of a system that would be able to protect our environmental heritage.

The beginning of the discussion we can find in the development of the idea of the “common heritage of mankind”. It means that some places belong to the whole of humanity and that the resources of these places should be available to all people. It also means that the needs of future generations and developing countries have to be taken into account. When the idea of the “common heritage of humankind” was first introduced in the 1960s, a controversy arose. The unclarified problems of this concept relate to the questions of scope, content, and status, as well as to its relationship to other legal concepts (Taylor, 2012).

The issue has been discussed for the last 60 years while environmental degradation has been progressing. In recent years, there has been a shift in opinion as to whether the concept is no longer relevant, since it is not applied in practice (for example, in seabed mining) and has been rejected by modern environmental conventions. Many, however, consider it a persistent principle of international law (Taylor, 2012). The question is whether there is a way of protecting it. In recent years a new concept has appeared – the concept of environmental personhood, which could help to protect the common heritage of mankind. The article shows the development of both concepts and traces current trends in legal personification of non-human persons. It asks legal-theoretical questions about the limits and possibilities of opening up the concept of legal personhood for non-human legal persons in the existing legal frameworks. Moreover the article considers the idea of solving the problem of protection by creating new institutions and giving impulses for creating a society which considers environmental problems as paramount.

2 The Concept of the Common Heritage of Mankind

The “father of the Law of the Sea Convention”, Maltese Ambassador Arvid Pardo (1914–1999), was the first who officially mentioned the concept of the common heritage of mankind – in his speech to the United Nations in 1967 (Pardo, 1967). Pardo proposed that the seabed should be considered as common heritage of mankind, and therefore beyond national jurisdiction. His speech was the starting point for the negotiations of the United Nations Convention on the Law of the Sea (UNCLOS III) of 1982.Footnote 1 But the idea of the common heritage of mankind has a much longer history, which Pardo made use of when he developed it as a legal concept for the oceans. The idea was also presented by his wife and environmental activist Elisabeth Mann Borgese. She considered the Common Heritage of Mankind to be an ethical concept, based on new forms of cooperation, economic theory and philosophy and of great importance for the future (Poertner, 2020). As we look at history, we can see the ethical core of mankind’s common heritage: the responsibility of human beings to care for and protect the environment of which they are a part (Taylor, 2012).

The concept of Common heritage of mankind can be also found in other acts of international law. The “world constitution” draft from 1948 (Garrett, 1948). provides that the Earth and its resources should be the common property of humankind and should be managed for the benefit of all. Another example of the usage of the concept was proposed for nuclear resources, which should be considered as common property jointly managed (Taylor, 2012). The concept of the common heritage of mankind can be found in the UN Outer Space Treaty of 1967.Footnote 2 However, it was only in the context of the law of the sea that the concept really gained weight. The World Peace through the Law Conference of Geneva in 1967 designated the high seas as the “Common Heritage of Mankind” and declared that the seabed should be placed under the sovereignty and control of the UN (Frank, 1968; Taylor, 2012). According to Taylor it probably was the concern about the impact of new technologies and militarization, as well as, growing disparities and insecurity which led Arvid Pardo to the idea that all marine space (i.e., the ocean surface, the water column, the seabed and its living resources) should be declared the common heritage of mankind, regardless of whether or not national sovereignty claims its ownership. The intention was to replace the outdated legal concept of the “freedom of the seas”Footnote 3 by declaring the oceans to be an international Commons (areas with significant natural resources, beyond the territories of sovereign states) (Taylor, 2012; Pardo, 1975). Accordingly, the maritime space and its resources beyond a certain border could not be the property of states if they were considered as commons. The sea would be open to the international community of states, but its use would be subject to international management in the interest of the common good and humanity as a whole. Where areas of the sea and their resources are within national jurisdictions, states would regulate their use, but again for the benefit of all mankind and not just in the national interest (Pardo, 1975).Footnote 4 The 1967 Malta proposal led to a number of important developments – including the Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction, adopted by the UN General Assembly in 1970.Footnote 5 The declaration laid out the principles necessary to implement the idea of the common heritage of mankind and helped to build consensus for the negotiation of the new Convention on the Law of the Sea, UNCLOS III. Unfortunately, the result was very limited. The common heritage principle was limited to a few deposits (for example, mineral resources such as manganese nodules) that lie on the seabed of the deep sea ( Taylor 2012). Part XI of the Convention on the Law of the Sea deals with the seabed beyond national territories. Article 136 declares only this area and its resources as the “common heritage of mankind”. According to Article 137, they may not be claimed, appropriated or declared to be property of any state or person. Art. 140 states that all rights to resources belong to all mankind. The interests of developing counties should be secured by the International Seabed Authority (IMB), which shall guarantee equal financial sharing and participation in the benefits derived from activities in the relevant area.Footnote 6 An international administrative and management regime was created but for only a fraction of international common parts: the protected area and its resources. Despite this strict limitation, the application of the concept was still revolutionary enough to stop the United States of America – among other reasons – from initially joining UNCLOS III (Taylor, 2012).

One question that arises and has to be cleared before moving to further analysis is how does the concept of “common heritage of mankind” differs from the concept of “nature”? The first difference is the perspective we approach those concepts. Using the concept of “common heritage of mankind” we look from the perspective of people and their economic interests. Not without reason it has been remarked that this view could be behind humanity’s misuse of nature. Using the concept of “nature” means personification of it. Here we look from the perspective of the nature and what will be the best for it. There is a further question whether we really need to personify nature, or natural entities, in order to appreciate them for what they are. Psychologically, giving the nature some human attributes can change people’s understanding of the importance to create the new Earth society (Sect. 4.4., Drogosz 2011). Some environmental philosophers though believe we can assert the intrinsic value of non-human beings and even non-human wholes (species, ecosystems) without personifying them (Naess, 1986). A similar understanding we can also find in the natural law doctrine, where nature is as important as human beings from the beginning of creation not just through human involvement, as we have it in a positive law concept. In a positive law concept nature’s rights or their lack is given or taken by human laws. There are three important types of environmental ethics: anthropocentric - human-centered (or) and biocentric - life-centered. In biocentric philosophy, living things are accorded an ethical status at least equal to that of humans (Nash, 1989).). Ecocentrism is another environmental philosophy. It goes even further and includes ecological systems as a whole, containing both their living and non-living elements (Washington 2017). Such an understanding enlarges the value and recognizes the interconnectedness and interdependence of living things (Washington, 2017). The philosophy of anthropocentrism is opposite to biocentrism and ecocentrism. It puts humans to the center of a worldview. Frequently, advocates for nature rights stress a critique to anthropocentrism as a narrow and disingenuous way of viewing environmental protection (Stone, 1973; Nash, 1989; Taylor, 1986).

In the last years we can see a movement from the concept of “common heritage of mankind” based on anthropocentric philosophy towards the concept of “nature” based on biocentrism. One of the aspects of it is the environmental personhood (Kupper & Wöbse, 2021).

3 The Concept of Environmental Personhood

Jacques Derrida described the attempts to transfer human rights to animals and ecosystem(s) as “sympathetic but unsustainable naiveté” (Derrida & Roudinesco, 2006). Derrida’s critique was aimed at the moral-philosophical argumentations “so bound up with the outmoded paradigm of subjective reason that they could not sufficiently grasp the autonomous rights of nature or even of animals. Instead of the moral philosophical extensions to the system of subjective human rights, the concept of the legal subject itself as well as the idea of consciousness that is linked to the ability to articulate, should be reconsidered and transformed. This transformation should shift the meaning and allocation of rights, basic rights and also human rights in such a way that the environment and animals, i.e. non-human persons, are no longer “’right’-less” (Fischer-Lescano, 2020). In response, some have moved to assign legal standing directly to nature. In 1972, the law professor Christopher Stone penned an essay entitled “Should Trees Have Standing?—Toward Legal Rights for Natural Objects” (Stone, 1972). It may feel beyond our collective imagination to give nature rights, but, as Stone writes, “throughout legal history, each successive extension of rights to some new entity has been a bit unthinkable. Until the rightless thing receives its rights, we cannot see it as anything but a thing for the use of ‘us’—those who are holding rights at the time“(Stone, 1972).

To answer the question, if there are already enough law tools to successfully protect the nature or if more actions are needed, I will first trace the current trends in the juridical personification of non-human persons. Constitutional changes and different court cases will be looked at in order to ask whether and, if so, how the concept of a legal person can be usefully opened up for non-human and non-articulable legal persons. It is then examined, using the concept of the common heritage of mankind, what these findings mean for the question of access of non-human legal persons to the fundamental and human rights jurisdiction on the international level (Fischer-Lescano, 2020).

4 The Methods of Legal Protecting of the Nature

4.1 The Greening of laws

The Rights of Mother Earth echo the vision of many indigenous peoples. Some of the examples we can find in the understanding of the Earth in the Andean region of South America and among the Māori people from New Zealand. In their comprehension, the Earth and cosmos are alive. Humans are not superior towards nature; they coexist together with it and are merely one of its components (Solon, 2018). The division between living beings and non-living beings does not exist. Impulses to acknowledge the rights fo Mother Earth can come from the scientific stream as well. Some positive law shows scientists understanding the Earth system as a whole consisting of the land, oceans, atmosphere and poles, and includes the planet’s natural cycles – carbon, hydrogen, nitrogen, phosphorus and sulphur – as well as deep Earth processes (e.g. geodynamics and seismology). Some of this attempts still show a rather a techno-managerial mindset toward nature.Footnote 7

4.1.1 Green Constitutions

In 2008, Ecuador was one of the first countries to introduce basic rights for the ecosystem of nature (“o Pacha Mama”) in its Constitution.Footnote 8 We can find a relevant statement in art. 10 Sect. 2, which says: “Nature shall be the subject of those rights that the Constitution recognizes for it”.Footnote 9 In Chap. 7 (art. 71–74) of the Constitution we find that the rights of nature called Pacha Mama exist where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes”.Footnote 10 Similarly, in 2010 in Bolivia, nature’s rights were established. The so called “Law of the Rights of Mother Earth”Footnote 11 defines Mother Earth as “a collective subject of public interest.“ This resembles the abovementioned concept of the common heritage of mankind. The concept in the Bolivian Constitution declares both Mother Earth and life-systems (which combine human communities and ecosystems) as titleholders of inherent rights specified in the law (art. 5). The short law proclaims the creation of “Defensoría de la Madre Tierra”, an equivalent of the human rights ombudsman office known as “Defensoría del Pueblo”, but leaves its structuring and creation to future legislation (Solon, 2018).

4.1.2 Green acts

Another example of granting environmental personhood is the case of the national park Te Urewera in New Zealand. In 2016, it was given the status of a “legal person”.Footnote 12 The park now has a recognized “autonomy” before the law, similar to that of a human being, and is treated accordingly. A comparable thing happened to Whanganui River in 2017.Footnote 13 Mr. National Park and Ms. River are represented by an body that represent the interests of the two “legal entities” in court if necessary (Ruru, 2014). I will now look closer at the Te Awa Tupua Act as an example of a legal act giving a personhood to a non-human entity. The Whanganui River was declared as an entity- a legal person with its own rights and protection. I will focus on the most important provisions for the purpose of this article. There are three significant themes covered in the act. First, the river has been fully acknowledged as a “indivisible and living whole” and the special cultural and spiritual ties that the Whanganui Iwi have to it (Te Awa Tupua, 2017, s. 8, 12). The Crown sees the importance of the relationship of the Whanganui Iwi’s and obligates to protecting that relationship. The Act accomplishes this by giving the river a broad definition that encompasses both its physical and spiritual components, recognizing the the Whanganui River as a legal entity, and formally apologizing for past wrongdoings involving that river. Examples of “the intrinsic values that represent the essence of Te Awa Tupua” are stressed out in the statement -“I am the River, and the River is me,”(Te Awa Tupua, 2017, s. 13). The future management of the river, which includes a commitment to empowering the Iwi as guardians of the river, is the second major focus of the text. The appointment of the two official guardians, whose purpose is to “be the human face of Te Awa Tupua and act in the name of Te Awa Tupua” is covered in Sects. 18–20 of the Te Awa Tupua Act. The Act also creates an advisory committee, a strategy group, and a collaborative group to enhance the protection of the Whanganui River’s health and wellness and to offer opportunities for people and organizations with particular interests in the river to get engaged (Te Awa Tupua, 2017, s. 18–25). Finally, a number of passages are devoted to the river’s status as a legal person and the transfer of present ownership of the riverbed from the Crown to the river. The river does not have full ownership rights. Existing property rights to certain areas of the riverbed are still privately owned under the Act (including legal roads, railway infrastructure, and any areas of the riverbed held under the Public Works Act 1981 (NZ) or located in the marine or coastal area) (Te Awa Tupua, 2017, s 41(2)). A further significant restraint on the powers of the Act is that it does not include the water that is inseparably part of the river (Te Awa Tupua, 2017, ss 16, 46). Water cannot be owned under common law, hence Te Awa Tupua’s legal self-ownership is limited to certain areas of the riverbed and leaves water as a separate legal entity (Collins & Esterling, 2019).

4.1.3 Nature in the Courts

In February 2019, citizens of Toledo, Ohio, recognized Lake Erie’s rights. They passed the Lake Erie Bill of Rights (LEBOR),Footnote 14 a municipal law that gave the lake legal rights. This law provided the means for the city or any resident of the city to sue polluters on behalf of the lake. The LEBOR got international attention. It is an example of the emerging “rights of nature” or “environmental personhood” movement, in which entities of nature (i.e. lakes and rivers) get legal personhood, which enables them to be better protect from pollution and other harms.Footnote 15 The fight began after a toxic algae bloom shut down the city’s water supply for three days in 2014. The blooms were largely caused by agricultural runoff of manure and fertilizer, a source of water pollution that was unregulated in Ohio. The initiative for LEBOR was approved with nearly 11,000 resident signatures (Toledoans for Safe Water [TSW], 2018), and was at first blocked from the ballot by a Board of Elections members. TSW wanted to fill the gap between the values held by the Toledo community and the realities of local environmental policy. According to a lawsuit TSW filed in the Ohio Supreme Court the Board of Elections members abused their authority by removing a citizen-approved initiative from the ballot. The Board of Elections convened a second vote to decide whether or not the proposal may be included on the ballot for the special elections in February 2019, even though the TSW ultimately lost the court case. The board affirmed the public’s right to vote on the initiative to advance LEBOR to the special election. In this way LEBOR was included in the city charter. TSW is a perfect example of the drive and enthusiasm needed to start an activist initiative and promote change at any political level (Huneeus, 2022).

The Lake Erie Bill of Rights was the first in US law based on fundamental rights passed with the intention of defending an entire interdependent environment (CELDF, 2019). The language of the safeguards recognizes that the lake is more than just a body of water and encompasses the lake, its tributaries, and the numerous species it sustains. The structure and substance of the text offer plenty of material for analysis. LEBOR may serve as the foundation for future proposals or legislation of a similar nature. The three-page document opens with six declarative value statements, then seven substantive parts that list the rights of the ecosystem and describe how to enforce those rights. The language and structure of the preamble of the US Constitution are referenced in the opening phrase of each of the values declarations on the first page: “We the people of the City of Toledo” what should underline the importance of the document as well as the will of the local community.Footnote 16

Sections 2 through 4 of the document expressly describe how LEBOR will affect the law. According to the Charter Amendment, it is forbidden for any government or corporation (defined as any legal person engaged in commercial activity) to infringe against the rights expressly set forth in LEBOR. Additionally, it stops businesses or governments from getting around these limitations by not allowing the issuance of permits or licenses that contravene LEBOR. LEBOR satisfies all three of Christopher Stone’s initial requirements for a river to have “its own” rights: (I) a suit would be in the object’s own name (not some human’s); (2) damages would be calculated by loss to a nonhuman entity (not limited to economic loss to humans); and (3) judgment would be applied for the nonhuman entity (Stone, 2010). To radically alter how civilization views ecosystems and other natural systems, each of these requirements is essential. Due to its litigious culture and emphasis on individual rights, the United States frequently does not appreciate something’s value until it has its own set of enforceable rights (Stone, 2010). LEBOR fulfills the requirements for granting rights to Lake Erie, transforming it from a resource for human use by the right holders to one that should be preserved, shared, and repaired.Footnote 17

The methods used to enforce the legislation are likewise very varied: “The City of Toledo, or any resident of the City, may enforce the rights and prohibitions of this law” (LEBOR, 2019). The paradigm outlined in Should Trees Have Standing? by Christopher Stone differs from this enforcement model. Stone favors a guardianship model in which a friend of a natural entity who considers it to be in danger can ask the court to be appointed as the entity’s guardian (this model was used in the Te Awa Tupua Act discussed above 4.1.2.). Guardianship is not mentioned in the document. In the LEBOR concept, community members or resource users actively participate in the specifics and procedures of resource management. LEBOR is an example of empowered local management that prioritizes individual rights over group duty or voluntarism. This unique framework presents new opportunities and possibilities for different iterations of LEBOR in other contexts throughout the U.S. and the world. It shows the change in society’s values and, as such, is a very important sign (Kilbert, 2020. Unfortunately, on 27 February 2020 the law was declared unconstitutional.Footnote 18 Judge Zouhary made his decision in the matter and wrote: “This is not a close call. LEBOR is unconstitutionally vague and exceeds the power of municipal government in Ohio” (Drewes Farm Partnership v. City of Toledo, 2020). The main justification given by Judge Zouhary in his ruling to invalidate LEBOR is its ambiguous nature (Drewes Farm Partnership v. City of Toledo, 2020). His conclusion is highly concerning because it is difficult to determine all possible behaviors or activities that might violate Lake Erie’s right to “exist, develop, and organically evolve.“ From a European point of view this seems a little strange, since in European legal practice it is much more common to use the general clauses in regulations. Also Toledoans’ right to “self-government of their local community,“ was judged to be too ambiguous and invalidated. The ruling by Zouhary demonstrates how environmental management principles and the rights of nature are inextricably linked. Whatever rights are granted to Lake Erie and Toledo residents will ultimately address human-environment interactions through the control of agricultural activities, development, balancing conservation and recreational use, and regulating extractive industry practices. Judge Zouhary indicated that the court is not amenable to broad Rights of Nature rules, especially given that one judge cannot significantly alter the law without setting a precedent (Silverstein, 2009). However, he gave a hint that more specific and detailed laws, maybe in a similar rights-based form, might be needed to combat water pollution. TSW could collaborate with other organizations to establish a baseline for what constitutes “clean and healthy” and identify which specific behaviors or practices ought to be outlawed. What LEBOR lacks is this degree of detail and collaboration between the public, scientists, and the government. Future organizations should take Zouhary’s ruling into consideration when creating new policies or changes, especially those that may face legal challenges. What might be encouraging is that the ruling does not sees giving the personhood to the lake as unconstitutional.

4.1.4 Conclusion

A major task is guaranteeing implementation and enforcement of the law where nature’s rights have already been established. In Ecuador and Bolivia, although legal rights were adopted on the constitutional level, they have not really been implemented. There seems to be a clash between the law in the books and the law in action. Until now, there has not been a single case that can be used as a positive example. On the contrary, there have been several backlashes, where government projects and decisions have been made in clear violation of these rights (Villavicencio Calzadilla & Kotzé, 2018). These rights are most commonly violated by holders of private property rights. In order to put an end to the juridical privileging of corporations rather than nature, we could either consider granting person status to non-human persons on a level below the constitution in order to arm them with tools to defend their rights, or establish an international institution which would protect these rights. It seems that giving legal rights in Ecuador and Bolivia is not enough. A whole system of enforcement on the level below the constitution would have to be established. Why it does not work can have many reasons (corruption, no rule of law, bed education systems). Putting the nature’s rights to the constitution is just a first step of many to be made.

We can already see the first attempts to establish conceptual protection of “Mother Nature” with bigger focus on nature in contrast to the concept of the “common heritage of mankind” with bigger focus on humans that had functioned until now in a national scope. This scope has to be widened. Although vigorous national protection of nature is useful and sets a gut example and tests the effectiveness of new legal concepts (as legal personhood of nature), The nature cannot be seen as existing within national borders. It is one big ecosystem and it should be seen and treated equally, regardless of the existing borders of interest. This idea can be found in the Gaia theory. It was developed in the 1960 and later by James Lovelock, a British scientist, and his follower and co-developed Lynn Margulis. They have put forward a hypothesis that Earth is a self-regulating, self-sustaining entity that is continually adjusting its environment to support life (Lovelock, 2000). Gaia theory is still being studied today, mostly in the domains of Earth system science and biogeochemistry, and it is increasingly being used in studies of climate change (Crunk, 2000). In this understanding we cannot just protect the nature “in pieces” only within the borders of particular countries in which the protection system works from different reasons. There will be countries where the protection laws will not work and also there the nature deserves protection, because it has to be seen a complex system. To protect the nature effectively we should move to the international level and if the laws work at the national level it is even better. There are two main ways of determining the rights of nature, but they cannot work alone: one way is to look at the already existing instruments and laws and change their interpretation, and another to establish new international protection institutions, which would assist in building new social values and helped creating an “Earth society”Footnote 19. One might say that this approach combined with the idea of “humankind’s common ownership of the Earth,“ could rebound. Some overpopulated countries could have a need to cut down the world’s rainforests in order to feed their populations. We have to make it clear that further depravation of the nature has also a big influence on people themselves (i.e. environmental refugees), so even overpopulated counters, driven until now by the economic progress, may soon have a big interest to participate the creating of the new institution, since protecting the nature will have even bigger influence on the well-being of their population at least in the long run.

Thirty years of the “greening” of human rights and of constitutions perhaps even suggest an answer to the question of the legal standing of nature. In other words, does violation of the rights of non-human legal persons justify, de lege lata, a lawsuit before the administrative courts and the transnational fundamental and human rights courts? Or do we have to consider de lege ferenda creating a new institution such as an International Environmental Court, which would have competences to investigate and, where warranted, to try individuals charged with the gravest ecological crimes of concern to the international community?

4.2 Existing Legal Instruments: Fundamental and Human Rights for non-human Persons

Modifications in the legal-dogmatic understanding of a person and in the architecture of legal representation are necessary in order to put forward the concept of natural personhood. Whether the resulting questions of concretization can be legally clarified depends on whether the dogmatic contexts make it possible to provide nature with legal representatives, who are persons of law with rights of action.

4.2.1 The International Covenant on Civil and Political Rights (ICCPR)

Global human rights treaties could also be opened up to non-human persons of law if the interpretation would change in favour of nature. Art. 2 Sect. 1 of the ICCPRFootnote 20 obliges state parties to protect the rights of “all individuals subject to their jurisdiction”. These “persons” can, at least theoretically, also include ecological and animal persons. Individual complaints under the Optional Protocol to the ICCPRs may be filed by “individuals who claim that any of their rights enumerated in the Covenant have been violated”.Footnote 21 The Committee, however, has considered complaints to be inadmissible, if they were filed by companies as legal persons.

A. Fisher-Lescano writes that in order to bring about changes in this dogmatic deadlock in favour of the “natural” legal persons, one would have to start interpretatively with the concept of the “individual” (Fischer-Lescano ,2020). Interpretation of international treaties is carried out according to art. 31 and 32 of the Vienna Convention on the Law of Treaties.Footnote 22 According to them, a norm should be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”, whereby, by way of dynamic interpretation, other international rules applicable between the parties to the treaty are to be taken into account in the work of concretization. At this point, it is relevant that environmental laws have developed rapidly since the end of the 20th century. The protection of the ecosystem has become a central regulatory goal of the international community.Footnote 23 This treaty interpretation practice of the signatory states of the UN Covenant on Civil Rights should be considered. However, the interpretation of the UN Covenant in line with the ecological requirements must not stop at the extension of the scope of protection of the relevant rights, but must also encompass the personal scope of application and open up the concept of individuals to include animals and nature. This would in no way overstretch the wording of the Covenant (Fisher-Lescano, 2020). The concept of the “individual” is sufficiently open to interpretation in order to provide non-human entities with rights and enforcement possibilities.

4.2.2 The European Convention on Human Rights and the Charter of Fundamental Rights of the European Union

In the case law of the European Court of Human Rights (ECtHR), environmental rights have so far not been conceived as autonomous rights of nature as a legal entity, but rather as mediated via subjective human rights (Schmidt-Radefeldt, 2000). Nevertheless, the European Convention on Human Rights (ECHR) is open in its conception with regard to legal personality (Kleinlein, 2017). In art. 2, “everyone” who falls under the jurisdiction of member states has a right to life. Procedurally, this is supplemented by art. 34 of the ECHR, which secures the right of individual complaint for “any person, nongovernmental organization or group of individuals.“ Accordingly, the prevailing opinion is that in addition to “physical persons”, legal persons are also entitled to file complaints under article 34 of the ECHR.Footnote 24 Here, too, an ecological interpretation of the Convention rights must not stop at formulating the substantive content but must also include the personal scope of application in order to take into account the dynamic interpretation requirements of the VCLTFootnote 25 and to avoid contradictory values between the environmental and animal protection conventions concluded within the framework of the Council of Europe (Fischer-Lescano, 2020).

The situation is parallel with the EU’s CFRFootnote 26, which, due to the safeguarding clause of art. 53 of the CFR, has to stay on the same level of protection as the ECHR. In this context, the door to the complementarity principle and thus to the legal personality of non-human persons stays open. So far, the ECJ has used this for legal entities as legal persons. The concept of legal person in view of the importance of protecting the environment and animals in EU law and including non-human persons in the concept of persons does not only seem to make sense but, in view of the urgency of the current ecological challenge, is very meaningful and useful.Footnote 27

The opening of the legal personhood concept for non-human persons seems to be possible under international law. To make the law enforcement more powerful we could think of creating a new institution on the international level.

4.3 Creating new Instruments

Another way to protect nature’s rights it would be to create an International Environment Court, which would investigate and, where warranted, try individuals charged with the gravest ecological crimes of concern to the international community. As a court of last resort, it would seek to complement, not replace, national courts. An international treaty would be needed which would give it a statute.

We should move away from the concept of international management as proposed in the concept of common goods. International management means that nobody in fact feels responsible but instead looks to others to take action. It is the same problem that was present in the communist-socialistic states – nobody really felt responsible for the common good. Creating a new institution, which would have competences and tools to protect nature and the Ocean as the biggest part of it, could bring similarly positive results as the creation of the International Criminal Court. This way we could protect the nature whether or not the violated rights were within national jurisdictions or within international law; it would work because the ecological personhood rights would be violated. Finally, we could see the nature not in “pieces” but as a whole ecosystem – as one person.

4.4 Building the “Earth society”

As Martin Luther King, Jr., said, “Morality cannot be legislated, but behavior can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless”.Footnote 28 The proposal of the “rights of nature”, was developed to use legislation to help restore the balance in our Earth system. The final aim is to build an Earth society and this requires much more than a change in legal structures. The aim of the Rights of Mother Earth movement is to create Earth governance systems at all levels – an Earth democracy that takes into account not only humans but also nature, and which connects the particular to the universal, the diverse to the common, and the local to the global; a living democracy that grows like a tree, from the bottom up (Shiva, 2010). According to Shiva, the challenge of this proposal is how to strengthen and spread these diverse experiences of local governance and to imagine the forms that Earth democracy will have at the national, regional and global levels. In a similar vein, Cullinan 2011 highlights that the main aim of the Rights of Mother Earth movement is to “encourage creative diversity rather than to impose uniformity”, and to “open spaces within which different and unconventional approaches can spring up, perhaps to flourish, perhaps to run their course and die” (Culian, 2011). In this sense, the Rights of Mother Earth are an invitation to think and act in a non-anthropocentric world. In a world where we respect the personhood of nonhuman entities people would be transferred from “homo economicus” to “homo naturalis”. The most crucial element would be probably shifting the economies to more sustainable ones, maybe even limiting the size of them and stabilizing population growth at a sustainable level.

5 Conclusion

Despite the tentative openings achieved in the system of subjective legal protection through class actions, and the greening of the laws, we still currently can see existing gaps in law enforcement, in the area of environmental protection. Collective actions are limited to the enforcement of simple law and the fundamental and human rights of animals and nature cannot be enforced through this mechanism. One way to close this gap is to grant autonomous rights to nature through the concept of environmental personhood, which recognizes legal rights of non-human legal entities. The concept seems to be very promising, although there have been backlashes (LEBOR) and the need to further elaborate the concept and its implementation is obvious. Until now there simply have not been enough cases in which it was implemented what make it hard to evaluate its efficiency. The creating a new institution which would investigate and, where warranted, try individuals charged with the gravest ecological crimes of concern to the international community, would give the nature even more protection. We shouldn’t forget that big potential lays in creation and education of an Earth society witch would help to restore balance in ecosystem and would be sensitive to the needs of the nature.