A positivist approach to rights of nature in the European Union. Issue 2 (October 2021)

• Record Type: Journal Article
• Authors: Epstein, Yaffa; Schoukens, Hendrik
• Is Part Of: Journal of human rights and the environment. Volume 12:Issue 2(2021)
• Page Start: 205
• Page End: 227
• Publication Date: 2021-10
• Subjects: rights of nature -- public interest litigation -- EU law -- Hohfeld -- strategic litigation -- environmental law -- natural entities; Human rights -- Environmental aspects -- Periodicals; Environmental policy -- Periodicals; Environmental law -- Social aspects -- Periodicals; 344.046
• DOI: 10.4337/jhre.2021.02.03
• Languages: English
• ISSNs: 1759-7188

Abstract

Abstract : A growing number of jurisdictions throughout the world have recognized some type of legal rights of nature. This jurisprudential trend has thus far made few inroads in Europe. However, its apparent absence is misleading. In this article we argue that, explicit or not, nature as protected by European Union (EU) law already has certain legal rights in the Hohfeldian sense because other entities have legal obligations towards it. Moreover, we argue that recent decisions of the Court of Justice of the EU can be interpreted to support our claim that nature, as protected by EU law, already enjoys some legal rights that cannot be trumped by mere utilitarian interests, and that these rights can in turn be recognized and applied by national courts. We further suggest that public interest litigation can contribute to developing rights for nature in Europe, even absent any explicit recognition of these rights in EU law or in national legislation.