How can we legally ensure that nature is protected and biodiversity is preserved?
In principle, biodiversity is protected by both European environmental law and national environmental law.
In addition, biodiversity in Germany is mainly guaranteed by building planning law, since many areas with high biodiversity are located in cities.
In constitutional law, environmental protection is guaranteed as a state goal by Article 20a of the Basic Law.
This regulation states that the state is also responsible for protecting the natural basis of life and animals for future generations.
In other words, our entire environment, which includes not only air, water and soil, but also biodiversity.
However, this is a purely objective claim for protection by the state.
Since the regulation was introduced in 1994 and supplemented by animal welfare in 2002,
They demand that nature be recognized as a legal subject. What is the legal difference when nature is no longer described as an object, but as a subject?
The current rule of defining nature as an object is very static.
There is only one active actor in German environmental constitutional law: the state.
According to Article 20a of the Basic Law, it protects the environment.
This protection is solely objective and legal.
This means that nobody has a subjective right to the environment being protected, neither the citizens nor nature itself. That is ultimately the function of subjective rights: the legal system in their own interest or that of others, for example in the ecological interest, to set in motion.
And that is missing in environmental constitutional law.
Nature or animals have no rights of their own that they or their representatives could sue for.
So far, people have been able to invoke their basic rights to life and physical health and the guarantee of property with a view to ecological problems and the destruction of nature.
However, this has not been very successful in constitutional practice so far.
That is why we need ecological rights, such as the right to ecological integrity, i.e. to an intact environment and the preservation of the natural foundations of life.
Another central problem arising from nature's object status is the lack of sustained juridical fairness.
The principle of sustainability is intended to strike a balance between social, economic and ecological interests.
But with regard to the right to sue, this is not the case: In business, anyone can sue against anything.
Nature has no rights of action.
What ways are there in Germany to recognize nature as a legal subject?
One possibility would be to follow the example set by Ecuador.
The rights of nature were recognized there in 2008 – it is understood as a legal subject.
Nature is understood as a unit, i.e. as a large ecosystem.
The Ecuadorian constitution also stipulates that everyone can sue in the spirit of nature, worldwide.
So also you and me.
This could also be implemented in Germany.
For this, further regulations would have to be introduced in the Basic Law according to Article 20a, which defines nature as an object, in order to also implement the ecological concept of the Ecuadorian constitution in the Basic Law.
As a result, nature would generally be regarded as a legal subject.
Are there other options?