WHAT IF ?

Imagine one of the last wild hamsters, an EU protected species, wandering around on an empty and pesticide-ridden piece of cropland in Belgium. Or take the case of a young she-wolf, straddling the borders between Belgium, the Netherlands and Germany. Let us assume a male following her all the way into Belgium and the pair having cubs together in spring. Five months later, the male reportedly stopped bringing food to the den; the she-wolf had disappeared. Rumour has it that some hunters agreed to secretly kill the she-wolf and her cubs in order to rid their hunting grounds of ‘invaders’ . This leaves the male wolf a ‘lone wolf’ .

Who should speak up for these ‘harmed’ species that are strictly protected under Union law ? In both instances, our legal order does not allow nature to stand up for its own rights. It is to remain voiceless. Nature does not possess legally enforceable rights, not even moral rights. Although wolves and wild hamsters are protected by the 1992 EU Habitats Directive, they can only be indirectly represented in court by environmental organisations or governmental bodies. Yet can one really be serious about the protection of the intrinsic value of species without granting them explicit substantive rights ?Faced with the underperformance of the existing governance structures, the obscure idea of granting legal rights to nature has garnered more attention lately, with explicit recognition of rights of nature in numerous jurisdictions, such as New-Zealandand Ecuador.With rivers and wider ecosystems being endowed with legal personality and legal rights elsewhere in the world, this chapter critically engages with this novel discourse and explores to what extent it can further the protection of the environment in the European Union. It contemplates the specific role of law in the fundamental transition to a sustainable future, straddling the border between morality, on the one hand, and positive law on the other hand.

SYSTEMIC DEFICIENCIES AND RIGHTS OF NATURE AS A NEW NORMATIVE AND MORAL DISCOURSE

The starting point of this analysis is the existing EU environmental legislation, which is the result of many years of growing environmental awareness.