Editor’s note: This post is part of the EJIL:Talk! Symposium on ‘Expanding Human Rights Protection to Non-Human Subjects? African, Inter-American and European Perspectives.’
What role, if any, do human rights courts have in the protection of the natural world?
Advisory Opinion 23 by the Inter-American Court on Human Rights marked, in my view, a potentially critical turning point in the approach by human rights courts to the protection of nature. The dictum introduced new, non-human elements into the realm of human rights protections. Components of the environment “such as forests, rivers and sea” were acknowledged by the Court to be “legal interests in themselves” (even in the absence of the certainty or evidence of a risk to individuals). The Court declared these components of the environment to be subject to protection of the right to a healthy environment conceived “as an autonomous right” [§62]. From this perspective, the right to a healthy environment “protects nature and the environment, not only because of the benefits they provide to humanity or the effects that their degradation may have on other human rights, such as health, life or personal integrity, but because of their importance to the other living organisms with which we share the planet,” which in words of the Inter-American Court, “also merit protection in their own right” [§62].
The enunciation of these principles soon found a concrete application in contentious cases. In La Oroya, a case arising from an Andean town contaminated by mining activities which led to high concentrations of lead in children’s blood, the Court found that Peru had violated the residents’ right to live in a healthy environment and unequivocally held that “States are obliged to protect nature not only for its usefulness or effects with respect to human beings, but also for its importance for other living organisms with which the planet is shared.” [§118; Author’s translation]. Put it simply, this is a first clear pronouncement by a human rights court asserting that States are obliged to protect Nature.
These developments in the Inter-American system may raise a string of questions: (1) What does the idea of autonomous protection of the environment mean in concreto? (2) Is such a concept of environmental protection, which is detached from human beings, also conceivable in other human rights systems (Europe/Africa)? (3) To what extent is the concept related to the protection of indigenous peoples only – a challenge that is not equally present in Europe? I turn to exploring these questions from two gateways: the expansionist model and the non-anthropocentric model.
- The expansionist model within the current framework
Let’s start with a bold enquiry. Can non-human entities such as Nature have rights and if so, can human rights courts expand their protection to include such a non-human subject?
Non- human entities as litigants in human rights courts?
The idea isn’t nonsensical. The notion that non-human entities can have human rights is a reality in the European Court of Human Rights. Corporations have ‘human rights’ in the European System of Protection of Human Rights. The first time that a corporate claim was brought before the European Court goes back to 1978, when a private media corporation brought a dispute against the United Kingdom [See ECtHR, Sunday Times v United Kingdom (Application no. 6538/74), Judgment of 26 April 1979]. In essence, as put by Emberland, companies are “welcomed in the European Convention of Human Rights’ legal order”. [Marius Emberland, The Human Rights of Companies: Exploring the Structure of ECHR Protection, OUP (2006), p. 25]
The term everyone in article 1 of the European Court of Human Rights has been interpreted by the European Court of Human Rights to cover both individuals (natural persons) and legal persons. This, in effect, means that the substantive provisions of the European Convention on Human Rights protect not only individuals but also companies. In addition, Article 1 of Protocol 1, explicitly refers to legal persons as enjoying the right to property.
In Do Arbitrators dream of electric parties? Michael Black KC brought my attention to the fact that the Northern District Court of California had held that the Ooki Dao (a derivative trading platform) was ‘a person’ under the Commodity Exchange Act and thus could be held liable for violations of the law. Legislation that attributes legal personality to certain software entities is likely to spread beyond the US, possibly in Europe as well. If these new legal persons found themselves under the European jurisdiction, legal personality would entitle them access to the European System of protection of human rights. For example, protection under Article 6 (fair trial), right to property, and remedies.
So why could it not be the case that a river (to pick a component of the environment) that attains legal personality in the jurisdiction of a State party to the European Convention on Human Rights, might end up, similarly to other non-human entities (i.e. corporations), litigating before the Strasbourg court?
The idea is not fanciful. The Mar Menor, a coastal saltwater lagoon in Spain recently attained legal personality under Spanish law (Law 19/2022). The Law not only recognised the Mar Menor’s legal personality but it granted it a set of specific rights. In England, a local authority, the Lewes District Council, passed a motion in February 2023, acknowledging the growing global movement of ‘rights of nature’ and set out to explore within two years issuing a ‘Declaration on the rights of the River Ouse’ (an exploration with which I had the privilege of assisting with as counsel). The two examples in Europe show that the concept is not specific to indigenous peoples’ realities. It has moved well beyond such a realm (from where some initial examples of Rights of Nature sprang), to emerge in the context of post-industrialised societies struggling with the impact of massive pollution of the natural world.
But who would authoritatively speak for rivers/Nature or to exercise claims for those elements of Nature that are recognised substantive rights? So far, there have been two main models developing. In current constitutional examples, anyone has the right to seek the protection of the Rights of Nature, including having a procedural standing in courts on behalf of Nature (i.e. the Constitution of Ecuador model). In the ad hoc model (cases in which rights of nature have been declared by courts (i.e, the Atrato River model as seen below), or by local governments (i.e. the example of the Magpie River in Canada referred to further below)) a guardianship system is adopted. This appears to be the model more likely to be used in the European examples. So there is guardianship system set up as part of the mechanism to ensure the rights of the river, the forest, or the mountain whose rights have been declared are enforced. The guardians are the mechanism that speak for the river, forest or element of Nature and the ones that can bring a case on its behalf.
Going back to the comparative example of whether entities other than humans can have any standing in international human rights courts: by contrast to the European System, a non-human entity cannot access the Inter-American System of protection of human rights as a rights holder. In Advisory Opinion OC-22/16 (referred to by Panama), the Inter-American Court examined the question of whether legal entities have standing before the Inter-American System of Human Rights and concluded that they do not because they do not hold human rights (with the exception of indigenous peoples and trade unions [See §§84 and 86). The Court noted that for the purposes of the American Convention on Human Rights, “person” means “every human being” only [Art. 1.2].
The African Charter on Human and Peoples’ Rights, similarly, refers to “every individual” as a right holder under the Charter (Article 2). The African System defines “an individual” to be a natural person in States parties, including non-nationals. (See for example the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Citizens to Social Protection and Social Security). Legal entities do not hold rights therefore under the African System of Protection of Human Rights.
The possible standing of non-human entities in the European Court of Human Rights is novel. This is the first time that such an argument is made in international law. Interesting as it is, one cannot but observe its limitations. The ecological protection of non-human entities in a human rights court is limited to some procedural rights (i.e. due process). It does not cover substantive rights under the Convention.
The ‘La Oroya case’ prototype: the expansion of human rights law to protect Nature
By contrast, the way both the Inter-American system and the African System are likely to be expanding human rights law to protect nature falls rather within the La Oroya paradigm. It is obviously also possible for the European System to do so as well.
It is the ecological and climatological state of our world that is triggering this adaptation of the law. It is not by chance that the prototypal case reflecting a key expansion of human rights law to protect nature has arisen from La Oroya, one of the most polluted places on Earth.
Indeed precisely because of the ecological and biodiversity crisis we face today, the expansion of human rights to protect the natural world has become a reality in current evolving human rights case law. I can see this expansion operating in at least two ways: (i) at the international level, in international human rights courts or international quasi-judicial bodies; and (ii) in domestic systems with Constitutional Courts delivering novel jurisprudential developments.
International level
The La Oroya case is not an isolated example of the expansion of human rights in protecting Nature. The Inter-American System is not alone. The recent Torres Strait Islanders case before the UN Human Rights Committee, a case arising from the climate change crisis, is another good example of this tendency. [Daniel Billy et al, Communication no, 3624/2019; Views adopted on 22 September 2022]. Effectively what the Torres Strait Islanders wanted to do was to save their ancestral territory, their islands, from climate degradation. But their ancestral territory did not stop with the land; it also covered the sea. They denounced that their culture depended “on the continued existence and habitability of their islands and on the ecological health of the surrounding seas.” [§3.5. My emphasis]. Their claim aimed to protect the soil of the islands, the coconut trees (today diseased by saltwater invasion), the climate stability, the culturally significant species like crayfish, the dugong, the many other disappearing species. [§2.5]. The Human Rights Committee found violations of Articles 17 (protection of home) and 27 (cultural rights of minorities) of the Covenant which both protected those ancestral lands [§§ 8.12- 8.14].
These developments need not stay within the human rights realm. They are penetrating international law as a whole. The recent ITLOS Advisory on Climate Change (21 May 2024) is an addition to that corpus juris. The marine environment which contains rare and fragile ecosystems, understood as “functional units consisting of living organisms, the non-living environment and the interactions within them” [§169] has never before received a more timely focused attention by a Tribunal and protection, than in this ground-breaking dictum.
National Level
National Courts are also exploring unchartered territories. A Constitutional legal action (‘Tutela’), filed by ‘Tierra Digna’, on behalf of a number of Afro-Colombian and other ethnic communities living along the Atrato, a very polluted river located in northwestern Colombia, in the Department of Chocó, paradoxically one of the most bio-diverse regions of the planet, gave rise to a landmark Ruling T-622/16, delivered by the Constitutional Court of Colombia, on 10 November 2016. This ruling declared that the Atrato River is a subject of rights which entail “its protection, conservation, maintenance and in the specific case, restoration”. [T-622/16, §9.32. My translation].
The Court provided that the Colombian State, together with the ethnic communities that live on the Atrato river bank in Chocó, were to exercise the guardianship and legal representation of the River. What is interesting about this case is that this was a purely jurisprudential development (it was not implementing a Constitutional provision on rights of nature unlike other examples in Latin America). In fact, the original claim had not been made on behalf of the river, but it had been advanced on behalf of people’s fundamental rights. The pollution of the river by heavy metals such a mercury, had contaminated the environment, the soil, the fish and had entered the organisms of people. In a documentary called Atrato envenenao: la huella del mercurio (‘Poisoned Atrato: the footprint of mercury’), the level of contamination among people can be seen as including irritation to the eyes, loss of peripheral vision, irritation of skin, and stomach; cough, chest pain, or difficulty breathing, insomnia, irritability, indecision, headache, weakness or exhaustion, among others.
The Court had found that the best way to ensure the rights of those living in (and relying on) such a polluted environment, was to grant rights to the river itself. A deep consideration of the fundamental human right to water, prompted the Constitutional Court to adopt a non-anthropocentric approach to make justice in the case. The Court held that water (the river), is ‘an essential part of the environment and is necessary for the life of the multiple organisms and species that inhabit the planet, and of course, for the human communities that develop around it’. [T-622/16, p. 79]. It granted as a result substantive rights to the river. It also granted the river procedural rights: direct standing before the Constitutional Court. The Court provided that the Colombian State together with the ethnic communities that live on the Atrato river bank in Chocó were to exercise the guardianship and legal representation of the River. It ordered that this system of guardianship had to become operational within 3 months of the notification of the judgment and gave a term of one year, for the commission of guardians to design a plan to decontaminate the water sources of the Chocó, beginning with the Atrato River basin and its tributaries, the riverside territories, recover its ecosystems and avoid additional damage to the environment in the region’.
- The non- anthropocentric model: New Paradigm
So, can a planet have rights? Could it be defended in a court of law? These are questions I pose myself in a forthcoming book I wrote entitled A Barrister for the Earth (Faber, 24 April 2025).
It is clear that today, the protection of components of the environment is moving to a non-anthropocentric model: the granting of legal personhood to forests, rivers, lagoons, mountains. But as we may perceive from above, a non-anthropocentric protection system parallel to the human rights system, is not watertight separated from a human rights system and vice versa. There is a necessary connection between them.
Of course, what the idea of autonomous protection of the environment may mean in concreto, may find its more integral version in this non-anthropocentric approach. This is following three main modalities: (i) Through legislation (either at Constitutional level or via legislation pass by parliament as in the case of Mar Menor; (ii) through local authorities’ own powers (as in the case of Lewes or in the case of the river Magpie in Canada [Province de Québec, Municipalité de Compté de Minganie, Résolution no. 025-21, Reconnaissance de la personnalité juridique et des droits de la rivière Magpie – Mutehejau Shipu]; or (iii) via the work of domestic courts (as in the prototypical case of the Atrato river in Colombia).
This, I submit, is a fundamental paradigm shift for humanity. One that ought to be considered against the background of post-industrialisation. What is happening merits a revision of the international legal framework of environmental law and a process of taking stock.
But what is the ultimate normative value of recognizing ecosystem components (e.g. rivers, oceans, forest cover, etc.) as rights-holders? How does this conferral or recognition of rights result in markedly better protection, than if public interest claims were asserted for such ecosystem components? It is about how we understand substantive rights. Not merely procedural ones. The separation of the protection of the right of life as a notion in international human rights law from the right to exist of other species and Nature was an artificial construction that has led to a wrong anthropocentric vision of the world. Is human life the only, and highest value worth value protecting in a system of values on earth? This separation, I argue, has failed, demonstrated by the planetary (climate, biodiversity) crisis today. Human beings are part of Nature and Nature, treated merely as a resource to exploit, has now reached tipping points in no longer being able to sustain life as it has been able to do. It is simple. Human life is deeply connected to the lives of other species and the planet itself. Our lives are closely connected to the rights of the trees in the rainforest in the Amazon to exist, deeply connected to the uninterrupted functioning of natural systems surrounding us. It is those natural systems that are in need of urgent protection.
Take the example of a cloud forest that was threatened by a mining project. Under the human rights paradigm, as there were no human inhabitants in this forest, a mine could have gone ahead with a mining license and bulldoze DNA that could not be found anywhere else in the world. There was no ‘harm’ because no human rights were ‘affected’. From the perspective of the rights of nature, the extinction of species in Nature is unlawful and therefore such a project could not go ahead. This was Los Cedros case, a case in which I acted and which was examined by the Constitutional Court of Ecuador. It shows the value of a shift in paradigm, discussed in detail in A Barrister for the Earth (2025).
Environmental law, internationally, grew from sets of principles stated in soft law instruments. The core of environmental principles is found in the 1972 Stockholm Declaration. which initiated “a process of normative development” in the environmental area, as noted by Pierre-Marie Dupuy (Pierre-Marie Dupuy, Ginebra Le Moli, Jorge E. Viñuales, Customary International Law and the Environment, C-EENRG Working Papers 2018-2, December 2018, p. 9), and which was expanded and consolidated later with the adoption of the Rio Declaration on Environment and Development in 1992. These, in essence, are both anthropocentric instruments.
In between both Declarations, however, lies “an avowedly ecological instrument which emphasises the protection of nature as an end in itself” (as noted by Philippe Sands and Jacqueline Peel, Principles of International Environmental Law, Fourth Edition (Cambridge University Press, 2018), p. 37): the 1982 World Charter for Nature. Adopted by a vote of 111 in favour, eighteen abstentions and one vote against (The United Kingdom voted in favour of its adoption), the Charter enunciates that “Mankind is part of nature and life depends on the uninterrupted functioning of natural systems” and that “every form of life is unique, warranting respect regardless of its worth to man”.
Underlying this instrument one can see a recognition of the inextricable connection between human life and the environment. The kind of recognition, that has been appraised in the 2017 Advisory Opinion No. 23 of the Inter-American Court on Human Rights and that is coming to light in dictums contained in the Atrato judgment or the La Oroya decision. Have we reached a full circle? Is it time to retake the trajectory recognised by the world with the World Charter for Nature in 1982 but then abandoned?
The interconnectedness between mankind and the natural world reflected in these legal developments does not belong only to indigenous peoples living in close harmony with Nature. It actually has a profound footing in science and in Western tradition, despite what appears on the face of it. Alexander von Humbolt, the 18th century German naturalist and explorer went to the Americas in 1799, and noted in his diary: “Alles ist Wechselwirkung” (Everything [in Nature] is interconnectedness’). I dare say we are currently standing at the very liminal moment in which the law is catching up with such a basic but fundamental truth.