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Modern Law Review
DOI:10.1111/1468-2230.12816
Animals and Nature as Rights Holders in the European
Union
Yaa Epstein∗and Eva Bernet Kempers†
This article argues that EU law can be interpreted to support the current existence of legal
rights for animals and nature. While these rights have not been explicitly recognised in law, the
prerequisites for doing so already exist in the EU legal order.The theoretical justications for
the protection of animals and nature dier,but the protection of both may benet from a rights
approach. Further, such a rights approach helps address jurisprudential questions pertaining to
direct eect and the eectiveness of EU law, and related EU law concepts. In this article, we
examine EU animal and nature protection laws to analyse where these laws can be interpreted
to assign rights to non-human natural entities. We argue that the rights animals and nature
already implicitly have in EU law should have consequences for how non-human protections
should be implemented and enforced in the EU context.
INTRODUCTION
The traditional perspective of law as an inherently anthropocentric institution,
centred around the human being as the only unit of value, has increasingly
been challenged by new laws1as well as in new legal scholarship.2In an eort
to lift the legal protections of non-humans to a level that approximates those
enjoyed by human persons,a small but growing number of jurisdictions around
the world have explicitly recognised some protections for non-humans as legal
rights.3In Ecuador,a prominent example,the r ights of ‘Nature, or Pacha Mama,
where life is reproduced and occurs’have been constitutionally protected since
2008, while in Pakistan, the Islamabad High Court held in 2020 that animals
∗Swedish Collegium for Advanced Study and Uppsala University Faculty of Law.
†University of Antwerp. The authors contributed equally to this article. This work was supported
by the Swedish Research Council Formas under research grant 2019-01450, and by Riksbankens
Jubileumsfond. The funders had no role in study design, data collection and analysis, decision to
publish,or preparation of the manuscript. Thank you to Hendrik Schoukens for discussions of relevant
cases, to colleagues at the Swedish Collegium for Advanced Study for valuable feedback, and to two
generous and thoughtful anonymous reviewers for helping us improve the text.
1 Guillaume Chapron, Yaa Epstein and José Vicente López-Bao, ‘A Rights Revolution for Na-
ture’ (2019) 363 Science 1392.
2 For example Kristen Anker and others (eds), From Environmental to Ecological Law (Abingdon:
Routledge, 2021).
3 As of early 2021, some type of rights of nature had been recognised in law in 17 countries,
and were under consideration in at least 12 other countr ies. Craig M. Kauman, ‘Rights of
Nature: Institutions, Law, and Policy for Sustainable Development’ in Jeannie Sowers, Stacy D.
VanDeveer and Erika Weinthal (eds), The Oxford Handbook of Comparative Environmental Politics
(Oxford: OUP, 2021).
© 2023 The Author s. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023)86(6) MLR 1336–1357
Thisis an open access ar ticle under the terms of the CreativeCommons Attr ibution License,which permits use,distr ibution and reproduction
in any medium,provided the original work is properly cited.
Yaa Epstein and Eva Bernet Kempers
have natural rights not to be tortured or unnecessarily killed.4These recogni-
tions have taken several distinct pathways: in some instances, rights have been
recognised through constitutional amendment, in others through legislation,
and in still others through judicial interpretation of existing rights.5
In Europe, however, despite a number of proposals,6the recognition of na-
ture’s and animals’ rights has been very limited.7Nevertheless, even in Europe,
the legal protection of the non-human world against the detrimental impact of
our species – historically motivated by entirely anthropocentric concerns – now
frequently seems at least in part fostered by authentic regard for non-humans
per se.8A growing body of environmental protection legislation and court de-
cisions places substantial restrictions on economic development, while strong
limitations on property rights over animals are justied in the name of animal
welfare as well as the moral evolution of society.9The constraints that such le-
gal protections put on the utilitarian calculus for the maximisation of human
welfare seem to reect a respect for the intrinsic value of such non-humans.
In some cases, such constraints on human activities arguably approximate legal
rights for non-humans.
The animal and nature rights movements share some similarities and
overlapping rights holders. However, it is important to also be cognisant of
theoretical and practical dierences in the sorts of legal changes they advo-
cate. By ‘animal r ights’ we mean rights for animals as individuals. The focus
of animal rights advocates is most often domesticated animals such as pets
and livestock, or animals that have been taken from the wild. Animal rights
arguments are frequently based on the intrinsic value or dignity of animals and
often concern the wellbeing or suering of individual animals, though some
cases have concerned property rights for individual animals, such as the famous
but unsuccessful ‘monkey sele’ animal copyright case.10 ‘Rights of nature’,
are r ights for natural entities other than individual living beings. Sometimes
these rights adhere to nature as a collective whole,such as ‘mother earth’, or to
other types of collective natural entities such as ecosystems or rivers. Animals
4 Ecuador Constitution, Arts 71-74; Islamabad Wildlife Management Board vMetropolitan Corporation
Islamabad, W.P. No.1155/2019 (2020).
5 David R. Boyd, The Rights of Nature: A Legal Revolution that Could Save the World (Toronto:ECW
Press, 2017).
6 Alex Putzer and Laura Burgers, ‘European Rights of Nature Initiatives’ (IACL-AIDC Blog, 22
February 2022) at https://blog-iacl-aidc.org/nature-animals/2022/2/22/european- rights-of-
nature-initiatives [https://perma.cc/SR7W-PGMF].
7 The exceptions that prove the rule are the 2016 Environmental Code of the Loyalty Islands,in
the French territory of New Caledonia, and the 2022 recognition of the legal personality of the
Mar Menor lagoon ecosystem in Spain.
8 Edwin Alblas,‘Conicting Goals and Mixed Rationales: A Closer Look at the Objectives of EU
Environmental Law in Light of the Anthropocene’ (2018) 27 Review of European, Comparative
& International Law 141, 143-145; Katy Sowery, ‘Sentient Beings and Tradable Products: The
Curious Constitutional Status of Animals under Union Law’ (2018) 55 Common Market Law
Review 55, 56.
9 Vojtˇ
ech Vomáˇ
cka, ‘Animal Welfare before the Court of Justice of the European Union’(2020)
20 ERA Forum 691.
10 Naruto vSlater 888 F.3d 418 (9th Cir. 2018).See also, for a discussion of property rights of wild
animals,Karen Bradshaw,Wildlife as Property Owners: A New Conception of Animal Rights (Chicago,
IL: University of Chicago Press, 2020).
© 2023 The Author s. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(6) MLR 1336–1357 1337
