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.’
As is well known, unlike most other international human rights instruments, the European Convention of Human Rights and Fundamental Freedoms, to give it its full title, and the Protocols thereto (hereafter, also collectively, “the Convention” or “ECHR”) provides some protection for non-human subjects in the form of “legal persons”. After all, the Convention expressly confirms, in Article 1 of its First Protocol (“Article P1-1”), that “every natural and legal person is entitled to the peaceful enjoyment of his possessions” and provides, in Article 34, for a right of individual petition to the European Court of Human Right (“the Court”) inter alia for “any … non-governmental organisation … claiming to be a victim of a violation”(as well as for “any person … or group of individuals”). Beyond these two most obvious examples, reference should also be made to the fact that, e.g., Article 10 § 1 expressly refers to “broadcasting, television or cinema enterprises”. As a consequence, as Dopplinger rightly identifies, the “everyone”, whose rights and freedoms the High Contracting Parties to the Convention undertake to secure (under Article 1 ECHR – as long as they are “within their jurisdiction”) and who is the named rights holder in the overwhelming majority of the substantive provisions of the Convention, either by affirming that “everyone” has a particular right (e.g. in Arts. 2, 5, 6, 8, 9, 10, 11, 13, P4-2) or the prohibition that “no one” shall be subjected to a particular treatment or deprived of a particular right (e.g. Arts. 3, 4, 7, P4-1, P4-3), must, in principle, be capable of including not only human beings (or “natural persons” as they are referred to in Article P1-1) but also “legal persons”. The clearest exceptions hereto are Article 12 (the right to marry), which, importantly, is limited to “men and women of marriageable age” and Article P1-2 (the right to education), which may be denied to “no person”. Article 14, which prohibits discrimination in “the enjoyment of the rights and freedoms set forth in this Convention”, in principle, should be applicable to legal persons where the underlying “right or freedom” is also capable of being enjoyed by “legal persons”. This appears to be confirmed by Article P12-1, which provides for a free-standing right not to be discriminated against in the enjoyment of any right set forth by law and, in sub-paragraph 2, expressly states that “no one” shall be discriminated against by any public authority. See e.g. Granos Organicos Nacionales S.A. v. Germany (no. 19508/07, § 57, 22 March 2012, concerning differential treatment in respect to legal aid between natural and legal persons and between national and foreign legal persons).
In the daily work of the Court (a Court which, according to the 2024 Annual Report, decided some 27,085 applications in that year alone, of which 1,097 were judgments), both those pleading before the Court (i.e. the applicant(s) as well as the respondent Governments and third party interveners), in their submissions, and the Court, in its consideration of the applications before it, appear to accept that this is so and rarely discuss in any detail, if at all, either whether it is right that this should be so or what the philosophical underpinning of this inclusion might be. Personally, I cannot recall having seen any submissions to this effect in the cases with which I have so far been concerned.
As consequence, the Court will generally not hesitate to extend to legal persons those rights guaranteed by the Convention which, by their very nature are susceptible of being exercised by legal persons (see Dopplinger; for a detailed consideration of the protection of fundamental rights of companies, see Oliver), such as e.g. the right to a fair trial (Article 6), the right to respect for its “home” and correspondence (Article 8), and the right to freedom of expression (Article 10). At § 229 of the Court’s Guide on Article 8 of the European Convention on Human Rights it is rightly noted that “The Court has, to date, expressly left open the question of whether the private life aspect of Article 8 protects the reputation of a company (Firma EDV für Sie, EfS Elektronische Datenverarbeitung Dienstleistungs GmbH v. Germany (dec.), 2014, § 23). However, under Article 10, it is worth mentioning that for the Court, the “dignity” of an institution cannot be equated to that of human beings (Kharlamov v. Russia, 2015, § 29). Similarly, in Margulev v. Russia, 2019, § 45, the Court emphasised that there is a difference between the reputation of a legal entity and the reputation of an individual as a member of society. Whereas the latter may have repercussions on one’s dignity, the former is devoid of that moral dimension (see also Freitas Rangel v. Portugal, 2022, §§ 48, 53 and 58)”.
The only issue which, on occasion, leads to a discussion as to the position of a “legal person” under the Convention, primarily in terms of standing under Article 34 but, therefore, inevitably also in terms of the enjoyment of Convention rights and freedoms, does not relate to its non-human character but concerns the question whether the “legal person” is or is not, in fact, a “non-governmental organisation” (see Slovenia v. Croatia (dec.) [GC], no. 54155/16, ECHR, 18 November 2020 and the case-law cited therein, Dopplinger and Eicke, p. 163).
While I do not want to engage in any detail in the philosophical debate about why rights of “legal persons” are provided for in and continue to be protected under the Convention, it may be helpful to make two final observations.
The first observation is that on a review of the travaux preparatoires concerning Articles 1, 34, and P1-1, there is no indication whatsoever that the drafters of the Convention were at all concerned with the question of whether or not to provide protection to the rights of non-humans. Quite the contrary, they show that the “everyone” in Article 1 was only introduced, replacing the slightly more ambiguous “each person” as a pure linguistic change to align the English text with the “toutes personnes” in the French version (see here, Cour (77) 9). During the negotiations of what, today, is Article 34, it appears that from very early in the negotiations and without any discussion the proposals referred to “any person or corporate body” claiming to have been a victim.
Despite the fact that there appears to have been a general acceptance, building no doubt on Article 17 of the Universal Declaration of Human Rights, that, in principle, a right to property and protection against expropriation was desirable, the vast majority of the early debates concerning what was to become Article P1-1 were concerned with whether or not this right should be included at all within Convention (see here, CDH (76) 36). After all, the Convention was intended to protect civil and political rights while the right to property, as understood by many of the delegates, was an economic and social right which was difficult to delineate and unsuitable for judicial determination by the Court which was to be created by the Convention. Other reasons advanced for not including the right to property related to the fact that e.g. “the right to work and the right to a standard of living adequate for the health and well-being of myself and my family”, which some saw as equally fundamental and essential, were not included (see e.g. p. 17 per M Elmgren (Sweden)). The counter-arguments, which appear to have prevailed, included a reminder that “the totalitarian regimes had a tendency to interfere with the right to own property as a means of exercising illegitimate pressure on its nationals” (per M Pernot (France) at p. 88) and that the European public (and, therefore, the constituents of the members of the Consultative Assembly) would, perhaps as a result, not understand if this right were not protected by the new Convention. M Bastid (France) also reminded his colleagues that “[a]ccording to the French Declaration of the Rights of Man, of 1789, the ownership of property was one of the four fundamental rights on a par with the liberty and safety, which the draft Convention sets out to guarantee” (here, p. 93).
However, once it was decided to include the right to property in the Convention, it seems pretty clear from the debates that while the negotiators were concerned with what one of them described as “not only goods for personal use, but the product of thrift, and the right to own a hereditary family property”, which were “an integral part of the rights of human personality”(here, p. 26), there was no question (and no debate) at all that this right might be exercised by “individuals” as well as “corporate bodies”(see ibid, p. 63/64). This latter term was changed, again without any obvious evidence of much discussion, to “natural and legal person” by a proposal from the Legal Committee of the Consultative Assembly under the chairmanship of M Teitgen (France) (see here, p. 76).
A perusal of the travaux preparatoires of Article P1-1 and the apparently complete absence of debate about extending the right to property to “legal persons” strongly suggest that this was, in fact, taken as uncontroversial perhaps as a result both of the conceptualisation of corporate personhood in Western legal thought (see the discussion here, p. 541) and the (consequent?) understanding of the protection envisaged by Article 17 of the Universal Declaration of Human Rights. This latter provision, of course, provides for a right to own property “alone as well as in association with others” in paragraph 1 and goes on, in paragraph 2, to proclaim that “no one shall be arbitrarily deprived of property”. The central importance of the Universal Declaration of Human Rights in the context of the Convention, which is palpable in the travaux preparatoires of Article P1-1, is of course also reflected in the Preamble to the Convention which cites the UDHR in its first paragraph and, in its second paragraph, explains that the Convention “aims at securing the universal and effective recognition and observance of the Rights therein declared”. Whichever way one looks at it, all of this seems to point to the, or at least one, rationale behind the unchallenged inclusion of rights for “legal persons” within the Convention; the concept of “legal persons” was intuitively understood as constituting the expression, in legal form, of human endeavour. It is, therefore, at heart very human-centric.
The second observation is that while there is no case-law addressing the definition of “legal person” under Article P1-1 head on, in practice, the Court generally does not adopt what Kulick describes as an “individualistic approach”; i.e it does not start from the assumption that “legal persons” can only “enjoy human rights to the extent that the human beings behind them are entitled to human rights protection (‘derivative rights’ position)”(see here pp. 538-539). The Court’s starting point, at its heart, is perhaps best described in the Concurring Opinion of Judge Rozakis, Joined by Judges Bratza, Caflisch and Vajić, in Comingersoll S.A. v. Portugal [GC] to the effect that “the company is an independent living organism, protected as such by the legal order of the State concerned, and whose rights also receive autonomous protection under the European Convention on Human Rights. It should not be forgotten that Article 34 of that Convention specifically refers to the right of non-governmental organisations to claim to be the victims of violations of the Convention and to seek protection, with all the legal consequences implicit in such a right, including the awarding of just satisfaction. Although I accept that a number of provisions of the Convention may be inapplicable to companies or other juristic persons (for example, Articles 2 and 3), the great majority of them apply directly to such persons as autonomous legal entities deserving the protection of the Convention”. The Concurring Opinion, of course, also highlighted the fact that this was (and is) not always consistently applied and disagreed with one particular aspect of the reasoning under Article 41 in that case on the basis that “I do not see why, in matters of compensation, the Court should be obliged to deviate, even partly, from such an approach and why it should be prevented from accepting, without any reservation, implied or otherwise, that a company may suffer non-pecuniary damage, not because of the anxiety or uncertainty felt by its human components, but because, as a legal person, in the society in which it operates, it has attributes, such as its own reputation, that may be impaired by acts or omissions of the State.” As a consequence, subject to certain exceptions, the case law of the Court is fairly clear that as a matter of principle, shareholders cannot be seen as victims of acts and measures affecting their companies (see also here and here).
The human centric approach identified above is also and will almost certainly continue to be at the heart of the Court’s engagement with the rights of other non-human subjects, reflected both in its approach to “victim” status and standing under Article 34 as well as in relation to the approach to the application of and interpretation of the substantive rights under the Convention.
That said, in the following, I want to engage in a little thought experiment concerning the questions that might arise in the context of some of these other non-human subjects under the Convention if it were to move away significantly from this human-centric approach.
In relation to animals, of course, the Court has only recently again underlined that “unlike European Union (‘EU’) law, which establishes animal welfare as an objective of general interest of EU law, the Convention is not intended to protect animal welfare as such. Thus, it must be observed that Article 9 § 2 of the Convention does not contain any explicit reference to the protection of animal welfare in the exhaustive list of legitimate aims capable of justifying interference with the freedom of everyone to manifest his religion” (see Executief van de Moslims van België and Others v. Belgium, § 93, translated by author). This observation about animal welfare not being listed as a “legitimate aim”, of course, applies to all the provisions setting out qualified Convention rights. However, as the Court in that case went on to note, in relation to any interferences with qualified rights of natural and legal persons under the Convention, “the Court has already recognised on several occasions that the protection of animals constitutes a matter of general interest protected by Article 10 of the Convention [and] that the prevention of animal suffering may justify interference with a right guaranteed by Article 11 of the Convention by way of protection of morals”(ibid., § 94, translated by author, and cases referred therein).
The limited nature of the acknowledgements of the protection of animals should perhaps not be overly surprising. After all, even leaving aside the obvious and significant difficulties in bringing an animal within the definition of “everyone” under Article 1 (and the majority of the substantive provisions) of the Convention, the definition of standing under Article 34 has led to a situation where the relatively few animal centred cases to date, i.e. cases in which it might arguably be said that the animal is the victim in a general sense, that have come before the Convention organs have – understandably – always been argued and been addressed from the perspective of the human owner (see e.g. (X v. Iceland (dec), no 6825/74, the Commission decisions of 16 January 1996 concerning the destruction of dogs under the Dangerous Dogs Act 1991 in Brock v the United Kingdom (dec), no. 26279/95, Bates v the United Kingdom, no. 26280/95, Foster v the United Kingdom, no. 28846/95, Bullock v the United Kingdom, no. 29102/95 and Crothers v the United Kingdom, no. 27842/95, and perhaps, the Commission decision in Kleis v Germany, no. 30469/96). As identified above, Article 34 limits standing to “any person, non-governmental organisation or group of individuals” who are “claiming to be the victim of a violation” of a Convention right. Consequently, at least on its face, both the applicant and the alleged “victim” are required to be a natural or legal person. Even in the context of the challenges to the destruction of dogs under the UK’s Dangerous Dogs Act 1991, the arguments therefore tended to be centred around the owner’s relationship with the dog being part of his or her “private and family” life under Article 8, the orders amounting to unlawful discrimination contrary to Article 14 in relation to certain types of the owners’ “property”, irrespective of character or behaviour of the dog or the condemnation of a category of dog, on the basis of physical appearance and characteristics alone (without accepting evidence as to past good behaviour) and/or the owner’s right to a fair trial under Article 6.
The closest it appears that the argument came to be animal-centred in the cases of Bullock and Foster. There, it was argued that “the 1991 Act discriminates against a certain breed of dog irrespective of the character or behaviour of the dog in question” contrary to Article 14 ECHR. While this could, at least on its face, be read as having been an invocation of the dog’s Article 14 rights, the Commission did not engage with this potential aspect of the argument at all but immediately considered it from the perspective of the owner and declared the complaint manifestly ill-founded: “The Commission accepts that the 1991 Act singles out, inter alia, owners of pit bull terriers which stray from owners of other dogs which stray and which by their behaviour show themselves to be dangerous. However, the Commission finds that this difference in treatment has an objective and reasonable justification given that this type of dog is bred for fighting and the experience of pit bull terriers in the United Kingdom. The Commission further finds that such difference in treatment pursues the legitimate aim of public safety and demonstrates a reasonable relationship of proportionality between the means employed and the aim sought to be realised in light, in particular, of the reasonable requirement of control through ensuring that the animal does not stray”.
Thinking outside the box, and not suggesting that this is in any way likely (or even possible), it might however be said that an interesting question could arise in a situation where, as a matter of the national law of the respondent State, an animal (or certain animals in general) were, in fact and law, classified as a “legal person”.
Would this not, at the very least, require the Court to engage, in more abstract terms, with the question of what is meant by the term “legal person” in Article P1-1 and the assumed inclusion of “legal persons” within the “everyone” used throughout the Convention (at least where that is systemically possible and appropriate)? On the premise that it is possible or permissible to include the, for want of a better term, “animal legal person” within those terms, would the question of standing not also take on a different form? After all, the Court and Commission have repeatedly recognised that, in order to render the Convention protection “effective”, special circumstances may arise under which the Court will grant standing, on a representative basis, to persons who are not (or cannot be) direct victims; such as a non-governmental organisation acting on behalf of a deceased mental patient (see here), a husband acting on behalf of his wife who was forced to undergo a compulsory gynaecological examination of applicant’s wife while in custody (here, § 29), a solicitor and guardian ad litem in domestic proceedings acting on behalf of children complaining about the delay in their care proceedings which concerned their placement with their long-term foster parents (here) or, most recently, arguably, “associations, subject to certain conditions, … as representatives of the individuals whose rights are or will allegedly be affected” by climate change (here, §§ 498 et seq). What would be the “special circumstances” that could be invoked in support of those acting for or in the name of such “animal legal persons” and would they be exceptional/special enough?
Similar thought experiments could, of course, also be conducted in relation to other non-human subjects such as nature or robots, as discussed in this symposium. Again, it is important to underline that, as things stand at this point in time and absent their express recognition as “legal person”, it seems to me to be impossible or at least highly unlikely, that either would be protected under the substantive rights laid down in the Convention and/or would be recognised as having standing (whether as direct or indirect victims or through a representative, as above) under Article 34 of the Convention.
In relation to the starting premise for this thought experiment, it is difficult to predict how likely it is that a robot might be granted recognition under any national law as a “legal person”, whether in qualified or unqualified terms. On the other hand, it is, of course, already the case that aspects of nature have been granted such status. Following the example of the New Zealand Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, which recognised that “Te Awa Tupua is a legal person and has all the rights, powers, duties, and liabilities of a legal person” (Section 14(1); Section 12 defines Te Awa Tupua as “an indivisible and living whole, comprising the Whanganui River from the mountains to the sea, incorporating all its physical and metaphysical elements”), the Spanish Parliament on 30 September 2022, adopted Law 19/2022 for the recognition of legal personality of the Mar Menor lagoon and its basin (translation of “Ley 19/2022, de 30 de septiembre, para el reconocimiento de personalidad jurídica a la laguna del Mar Menor y su cuenca”), by which it declared the “legal personality” of the Mar Menor lagoon and recognised it as “subject of rights”. Article 6 of this law seems to envisage that “[a]ny natural or legal person is entitled to defend the ecosystem of the Mar Menor, and can assert the rights and prohibitions of this law and the provisions that develop it through an action filed in the corresponding Court or Public Administration. Such legal action will be filed on behalf of the Mar Menor ecosystem as the true interested party” (translated by author). While often treated as a recognition of the right of “nature” there is a very legitimate debate whether this is not too narrow an approach, treating it as something “that resemble[s] western conservationist conceptions of ‘wild places’ that need to be locked away from humans” and whether the better way of looking at this is not, in fact, as a recognition of indigenous rights and the authority of indigenous law (see e.g. here).
What would the Court make of this “legal person” if an application were to be made to the Court on its behalf? One does not even have to engage in any analysis of the relationship between the rights “to protection, conservation, maintenance and, where appropriate, restoration” (translation by author of “los derechos a la protección, conservación, mantenimiento y, en su caso, restauración”), granted by Article 2(1) of said Law, and any of the substantive rights under Convention (such as, e.g., perhaps most obviously Article P1-1). Let us just assume a complaint under Article 6 § 1 concerning the right to a fair hearing to raise the “victim”/standing question. Would the Court recognise the Mar Menor lagoon as a “person … claiming to be a victim” under Article 34? Would it recognise the necessary “special circumstances” to allow the lagoon to be represented before the Convention by someone who is not (or cannot be) a direct victim? Is the answer to this question affected by the fact that the national law appears to identify those who have standing to act on behalf of the lagoon and/or the terms in which this standing is granted by national law? It is perhaps notable that, while the Spanish legislation, appears to provide that “any natural or legal person” has standing to defend the lagoon (Article 6), thereby perhaps creating a risk of an impermissible actio popularis, section 18 of the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 establish the “office of Te Pou Tupua” with the purpose of being “the human face of Te Awa Tupua and act in the name of Te Awa Tupua”. Section 19 sets out the functions of Te Awa Tupua, culminating in the catch-all “to take any other action reasonably necessary to achieve its purpose and perform its functions”. While I have no ready answer to any of these questions, it is perhaps worth noting that it seems unlikely that the Court would currently be ready to accept that any threat to the lagoon would come anywhere close to the “special features of climate change”, which the Court set out in § 499 of Klimaseniorinnen to explain and justify why it, exceptionally, recognised the standing of associations before the Court in climate-change cases”. This seems even more unlikely now that the Court, in its judgment of 30 January 2025 in Cannavacciuolo and Others v. Italy (§§ 202-221) just appears to have confirmed that this approach is limited to the “specific context” of climate change ((see also Kobylarz for a discussion of the limitations of the Convention in the context of the broader but potentially connected right to a healthy environment and the possible impact an additional Protocol to the Convention on the right to a healthy environment might have).
However, returning again to the human centric approach underlying the Convention and the Court’s approach to it and to the understanding of the “legal person” under Article P1-1 as an expression, in legal form, of human endeavour, the crucial prior question to any of the above may well be whether, in fact, the alleged “victim” is a “non-governmental” subject. After all, any of the hypotheticals considered are specifically created by the state (which would be the Respondent state in any proceedings before the Court) and have their status and rights conferred by a specific, dedicated statute and can, in that sense, not be described as an expression of human endeavour cast in a generally recognised and abstractly regulated legal status.