Conventional environmental and nature conservation laws in Luxembourg are actually there to regulate how we humans interact with nature. They define the level of pollution and habitat destruction that we legally tolerate. This is not enough for a healthy relationship with nature and true environmental protection. Rather, one must give nature its rights and define it as a legal entity in the constitution, say Luxembourg lawyer Jean-Jacques Schonckert and his partner Isabelle Faber, system setter, in an interview with Tageblatt.
According to lawyer Jean-Jacques Schonckert, the laws currently in force regarding the protection of nature and the environment do not go far enough. In his opinion, existing legal texts are better than no regulations. Aside from some administrative sanctions for environmental violations, the criminal consequences are quite rare.
At the beginning of our conversation, the lawyer cites the fictitious example of a farmer emptying manure into a stream. In that case, a private individual can do little. The only option left is to notify the police or the environmental agency, which in turn will report the incident to the judiciary. Responsible authorities, such as the prosecutor, would decide whether to bring charges, Schonckert says.
In Ecuador, Bolivia and Uganda, nature has long been called a separate legal entity. In the example above, a private individual could sue in the name of nature, Schonckert says. The lawyer is not primarily concerned with the punishment. Rather, it is important in this legal philosophy to increase and promote people’s sense of responsibility in dealing with nature.
Isabelle Faber intervenes in the conversation and conveys an important message: “People must realize that they form a unity with nature”. If nature is bad, people are bad too. “After all, humans are about 70% water and nourished by nature,” Faber points out.
In recent months, everyone could get an idea of what it looks like when the system goes out of balance, according to the two people we spoke to, who cite climate change, fires or drought as examples.
As a system setter, Isabelle Faber sees the law for nature as an important step forward. Because we are all part of a system, be it a family, a company, an association, a company or nature. If people became more aware of this belonging and the interaction of all systems, they would see nature with different eyes, according to Faber.
Recent actions such as the occupation of the “Bobësch” forest between Niederkerschen and Sanem could also be a step in the right direction for Faber and Schonckert, so that the system moves to renew itself and then return to balance. This could, if necessary, stimulate or accelerate a regulatory process, emphasizing the two advocates of the rights to nature.
Pioneer of Ecuador
In 2008, the Republic of Ecuador incorporated nature as a legal entity into its constitution, recognizing the Native American expression “Pacha Mama”, which means Mother Earth. Article 71 of the Constitution states: “Pacha Mama, in whom life is fulfilled and fulfilled, has the right to be respected throughout its existence. Any person, community, people or nationality can ask the competent public authority to implement the rights of nature “.
These laws were first enforced in 2011. At that time, the Vilcabamba River was under threat from planned road construction. Citizens have filed a lawsuit, arguing that the river must be protected as a natural resource. Damage to the river due to road construction would also undermine the human right to a healthy environment. Both the river and the commoners have succeeded in court. Meanwhile, the Ecuadorian Constitutional Court has stopped other large-scale projects that are harmful to the environment. Other states have followed Ecuador’s example. Bolivia, Colombia, New Zealand and Brazil, for example, have granted their rights to individual rivers, ecosystems and natural parks.
Current regulations better than nothing
Return to Luxembourg. As in all European countries, the Grand Duchy also has laws on the protection of nature and the environment. According to Jean-Jacques Schonckert and Isabelle Faber, these are better than no regulations. But although Luxembourg and other European countries are overly regulated, these laws are far from sufficient for effective protection of the environment and nature.
This is related, inter alia, to the cascade principle in the Luxembourg legal system. Schonckert takes up the fictitious example of the peasant mentioned at the beginning. Suppose the city or the water union has to shut down the supply of drinking water due to this contamination. The citizen, in this case the customer of a supplier, remains only the possibility to sue for breach of contract, or for lack of water supply. The drinking water union should then take the farmer to court and sue for damages. However, true nature conservation is still on the back burner. Because in our legal system, nature is seen only as a “thing,” Schonckert says. Therefore, direct legal action against the farmer is not possible.
The lawyer denies whether natural law would not cause even more chaos in the Luxembourg legal order. On the contrary. According to the lawyer, the creation of a new court would be more accessible than it is today. The current legal situation, also influenced by European legislation, makes it difficult to define the competences of the courts, such as the administrative, judiciary or district court, as well as criminal or civil procedures.
According to Isabelle Faber and Jean-Jacques Schonckert, a specific court for all matters relating to nature conservation and the recognition of nature, i.e. fauna and flora, more abstract landscapes and environmental assets, water and air, as a separate legal entity would simplify many things . Not only in jurisprudence, but also in the sense of responsibility of each individual in the system. New legal strategies could end the destruction of the environment. With the next reform of the constitution, it would be appropriate to think of a right for nature.
Rights of nature
Article 71. Nature, or Pacha Mama, where life reproduces and manifests itself, has the right to full respect for its existence and to the maintenance and regeneration of its life cycles, its structure, its functions and its evolutionary processes .
All people, communities, peoples and nations can ask public authorities to enforce the rights of nature. In order to enforce and interpret these rights, the principles set out in the Constitution must be observed, as appropriate.
The state encourages natural and legal persons and communities to protect nature and promote respect for all the elements that make up an ecosystem.
Article 72. Nature has the right to restoration. Such restoration is excluded from the obligation of the state and natural or legal persons to compensate individuals and communities that depend on the affected natural systems.
In cases of serious or permanent environmental impact, including those caused by the exploitation of non-renewable natural resources, the State establishes the most effective mechanisms for carrying out the restoration and adopts adequate measures to eliminate or mitigate harmful environmental consequences.
Article 73. The State applies preventive and restrictive measures on activities that could lead to the extinction of species, the destruction of ecosystems and the permanent alteration of natural cycles.
The introduction of organisms and organic and inorganic material that can permanently alter the genetic heritage of the nation is prohibited.
Article 74. Individuals, communities, peoples and nations have the right to benefit from the environment and natural resources which enable them to enjoy the good way of life. Environmental services are not allocated; their production, delivery, use and development are regulated by the state.
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