On the fundamental rights of foxes

It is not for want of clauses, that much is certain. The German state protects the nature and animals within its boundaries in a wide variety of statutory regulations. These laws even regulate certain German landscapes in great detail, from the sandy beaches of the North Sea coast and the forests of the Central German Uplands down to the Bavarian Alps. Furthermore, the state has enshrined environmental protection as a national objective in the constitution. Yet for all that, Jens Kersten reckons that the German legal system “needs a serious environmental overhaul.” In particular, he views the national objective clause in Article 20a of the constitution as outdated: “That’s because it recognizes only one actor: the state. In Germany, the state is the sole arbiter of whether, how, and above all to what extent nature and animals are to be protected.” Kersten thinks this needs to change. The professor of law, who holds the Chair of Public Law and Governance at LMU, strongly advocates making nature itself a legal person.

This makes Jens Kersten part of a global movement of lawyers and environmental organizations that wants to give conservation more weight at the constitutional level and grant basic rights to the environment. “The philosophy is no longer to view people as the sole actor and nature as an object, but to create a relationship between the two on equal terms.”

It is a debate that has been rumbling away since the 1970s. When asked why he is writing academic papers about the subject at this specific moment and has published a book titled The Ecological Constitution (German: “Das ökologische Grundgesetz”), Kersten replies emphatically: “The climate catastrophe, no question. Climate change is not just something off on the horizon; we’re already in the midst of a catastrophe.” As such, Germany needs “more than a national objective clause in the constitution that has no practical effect.”

German nature conservation law – “sprawling and chaotic”

Article 20a merely states: “Mindful also of its responsibility towards future generations, the state shall protect the natural foundations of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.” But this provision is “much too wishy-washy in terms of legal enforceability” according to Kersten.

Moreover, says Kersten, German conservation law has been as “sprawling and chaotic” as the wilderness it is supposed to protect. Certainly, there are new legislative approaches afoot in the states of the former East Germany concerning the relationship between nature and property. “In this context, Brandenburg, Saxony, and Saxony-Anhalt, inspired by the pioneering ecological innovations of the East German civil rights movement, have made the right to property explicitly subject to the safeguarding of natural resources.” And the European Union is also coming up with innovative regulations, notes Kersten, particularly in relation to environmental information, environmental impact assessments, and the rights of environmental NGOs to challenge EU laws.

But these initiatives still do not go far enough for Kersten’s liking. And the same goes for the “intertemporal guarantee of freedom,” which the Federal Constitutional Court introduced in its climate ruling of 2021. This principle obliges the legislator to lay the foundations for future climate protection, thus establishing fundamental freedoms for the generations to come – which we would respect, for example, by using fossil fuels as sparingly as possible. “But that can only be the start in view of the urgent problems that we’re already facing: species extinction, climate catastrophe, global litter crisis,” says Kersten.

Moreover, Kersten thinks, the guiding principle of sustainability, which is based on the weighing of social, economic, and environmental interests, has been superseded: “Nature will not weigh up and negotiate with us, not about biodiversity, not about extreme weather, and not about the melting of the polar ice caps.”

Consequently, he thinks we need an “ecological emergency brake,” as he puts it. “We have to fundamentally alter the way we live, and a key part of this is an ecological transformation, a revolution in our constitutional order,” says Kersten. “Just as previous revolutions brought us civil rights and social rights, so now we need a third revolution, an environmental one, in which ecological imperatives are advanced at the constitutional level.”

Ecuadorean model: protecting “Pacha Mama”

There are models for this principle in South America. A leading light is Ecuador, where the constitution accords nature the right to integral respect for its existence, its life cycles, and its evolutionary processes. This grants fundamental rights to ecological cycles, which can be defended not only by citizens of Ecuador, but by people from all over the world by means of collective legal actions. “The reason why the environment is so comprehensively protected in that part of the world is the very strong indigenous influences on legislation not only in Ecuador, but also in Chile and Bolivia,” explains Kersten. Nature is called ‘Pacha Mama’ – Mother Earth – there. “It’s a whole other, non-western conception of nature,” says Kersten.

On the question as to what such a revolution could look like in Germany, there are two schools of thought. One says Germany should just append the corresponding passage from the Ecuadorean constitution to the national objective clause. Kersten prefers the other route: “First I would incorporate ecology into the fundamental norm established in Art. 20 Para. 1 of the German constitution, where it would join the principles defining Germany as a democratic and social federal state under the rule of law. And so it would become part of the DNA of our state and permeate the entire constitutional structure.”

In concrete terms, this would mean, for instance, that all government agencies in Germany’s parliamentary system would acquire new environmental remits: “For example, the Bundestag would have to hold an environmental budget debate once a year, and the environment minister would have a right of objection to any significant government decisions affecting the environment.” Furthermore, Kersten would establish new basic rights, such as the right to ecological integrity and the right to environmental information. Ultimately, however – and this for him is the crux of the matter – he would recognize the environment as a legal person with its own, enforceable fundamental rights.

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Here, Kersten takes up Article 19 Paragraph 3 of the German constitution, according to which legal persons can appeal to basic rights, “to the extent that the nature of such rights permits.” Thus, although “economic” legal persons such as corporations and limited liability companies do not have a basic right to freedom of movement, they do have a basic right to things like commercial freedom of action and to property. “And what goes for dead capital should apply all the more to living nature,” says Kersten. “With a provision for ‘ecological persons,’ animals like foxes could acquire the basic right to life, freedom of movement, and physical integrity, and ecosystems such as forests and bodies of water could have a basic right to integrity or the inviolability of their ‘home.’ This would set more effective barriers to the existing basic rights of human persons and economic interests.”

However, Kersten would not transfer all basic rights that humans enjoy to nature. “The inviolability of dignity in Article 1 of the German constitution should be reserved for humans. There are historical reasons why this should be so, going back to the Holocaust and the Second World War.”

The question as to which specific elements of nature are to be recognized as legal persons would be a matter for the legislator to decide, which would have some latitude in how it goes about this. Kersten believes there is no basic impediment to recognizing animals as individual legal persons. It would also be expedient in his view to treat iconic or emblematic plants in this way, whereas plants without these attributes would be protected as part of an ecosystem, such as a river or a landscape, which itself could be recognized as an ecological person. This would mean that mowing grass or plucking daisies would be fine, but poisoning their habitat would be a violation of their basic rights. “Environmental media such as air, climate, and water could then also be recognized as legal persons,” says Kersten.

“Naturally, this all sounds rather strange and unfamiliar. But we’ve got used to companies being legal persons – why not nature?” asks Kersten. He sees parallels in the sphere of digitalization, where the emergence of autonomous forms of artificial intelligence, for example, will make it necessary to recognize new electronic or digital (legal) persons. For nature, meanwhile, economic rights would also be something worth considering, thinks Kersten. “Many people smile when I say that, but: Why shouldn’t a nature park belong to nature?” As for how the possessions of “ecological persons” would be managed, Kersten is of the view that this should be set out in a new ecological legal code.

As legal persons, a lion, an ecosystem, or a giant redwood tree would have the right to bring legal actions before the courts. “This is key. In our liberal society, only those who can file lawsuits are actually heard in the political process. And only then does society change.” According to the constitutional expert, the idea here would not be that nature would always win in the courts, but that it would have a fairer chance to defend its interests when they conflict with other rights.

Every living organism would then require a legal advocate when problems arise. In event of conflict, the legislator could appoint individual people as the advocate for, say, a redwood or a wild animal; and for more complex systems, it could appoint legal associations. But it could also allow collective legal actions as in Ecuador. “In the case of large ecosystems like the Elbe or the Rhine, anyone from anywhere in the world could file a lawsuit: against poison being poured into the river, against construction projects, against a planned straightening of the waterway.”

Of course, conservation groups are already able to bring actions against environmentally destructive projects today. “But this doesn’t happen often enough to do justice to all environmental problems.” Only when there are more legal actions will dynamics be set in motion that would contribute to the ecological transformation of the legal system. As such, Kersten’s advice for “Fridays for Future” activists is to study law – and then to write “the ecological constitution for the 21st century.” With that in in place, Kersten adds, “citizens could effectively demand environmental protection – through litigation if necessary; nature would get a voice of its own.” Many voices, to be precise, as beaches, forests, and animals could then speak up, as it were, against their own destruction and be heard in courts of law.

Text: Anja Burkel

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Prof. Dr. Jens Kersten is Chair of Public Law and Governance at LMU. Born in 1967, Kersten studied law in Heidelberg, Leeds (United Kingdom), and Bonn. He completed his state legal examinations in Cologne and Berlin. Kersten obtained his doctorate at Humboldt University in Berlin, where also completed his habilitation degree. He was a professor at universities in Dortmund and Bayreuth before coming to Munich in 2008. In 2012/13, Kersten was Carson Professor at the Rachel Carson Center for Environment and Society at LMU.

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