Introduction to the EJIL:Talk! Symposium on ‘Expanding Human Rights Protection to Non-Human Subjects? African, Inter-American and European Perspectives’
Editor’s note: This post is part of the EJIL:Talk! Symposium on ‘Expanding Human Rights Protection to Non-Human Subjects? African, Inter-American and European Perspectives.’
Will we envision human rights courtrooms that are accessible to animals, ecosystems, robots, corporations, and humans?
Human rights practice is at a crossroads in addressing the inclusion of non-human subjects. Regional human rights courts have already extended human rights protection to certain non-human entities (corporations, nature), but the judicial practice is divided across regions. This divergence highlights that the treatment of non-human subjects is causing a shift in the foundation of human rights, leading to an uncertain future: What does thehuman in the concept of human rights mean? What are the implications of the European Court of Human Rights (ECtHR) granting human rights protections to corporations as independent legal subjects while denying protection against the ‘general deterioration of the environment,’ whereas the Inter-American Court of Human Rights (IACtHR) extends human rights protections to elements of nature – but not to corporations? The underlying texts of the Conventions may differ (Article 1 of Protocol No. 1 to the ECHR explicitly expands the right to property to ‘natural or legal person’), but this alone does not fully explain the varying approaches taken. The discrepancy in judicial practice (I will explain further in the following) extends beyond the common regional variations in human rights interpretation and application, as it directly challenges the very foundation of human rights justification: Who – or what – should be entitled to international human rights protections, and on what instrumental, political, or moral grounds? The Courts do not clearly present their underlying legal theoretical considerations. While Upendra Baxi’s reflections on the state of human rights in a ‘post human’ world have been enriching the human rights discourse for one and a half decades, and while important studies exist that explore whether and how the concept of legal personhood or rights can be applied to non-human entities (see, for example, here, here and here), there is no comprehensive legal theory of human rights protection that encompasses the diverse range of non-human entities (cf. however, the one rights approach related to animal rights).
In seeking a justification for the inclusion of non-human subjects, we could understand human rights protection as a tool for addressing global crises. States around the world share the common challenge of addressing the Triple Planetary Crisis while promoting corporate accountability for environmental and human rights violations. In this context, wouldn’t it be prudent, for instrumental reasons, to adopt the Inter-American approach globally, excluding corporations from human rights protections while extending them to natural entities, and implementing this uniformly across all regions – in order to strengthen judicial nature protection worldwide?
In recent articles, I elaborate from the perspective of a European lawyer, on why I do not believe this to be the most suitable approach for European human rights law. The specific political and economic background in Europe, coupled with a strong commitment to the rule of law, provides justification for extending (albeit limited) fundamental rights protection to corporations (see further discussion here). As the entry into force of the EU Directive on corporate sustainability due diligence (Directive 2024/1760) proves, this does not hinder fostering sustainable and responsible corporate behavior. Moreover, I argue that a comprehensive approach to nature protection and restoration that goes beyond human benefit, can – to a large extent – be realised through an ecological reorientation of human rights thinking and doctrine (see further discussion here). While extending human rights protection to nature is an option to discuss, this should not divert attention from the critical need for this ecological shift in the anthropocentric approach to rights protection, which I regard as both essential and doctrinally possible.
All of these different aspects, the foundations in positive law that could justify the inclusion of non-human subjects in human rights protection systems, overarching political or moral motives for doing so or refraining from it, and ultimately, the legal and factual consequences of such inclusion, must be the subject of our academic debate. This EJIL:Talk! Symposium Expanding Human Rights Protection to Non-Human Subjects? African, Inter-American, and European Perspectives’ provides a forum to do so.
There is even more reason to discuss: The inclusion of certain non-human subjects in human rights frameworks creates – worldwide – what can be called ‘coherence demands’ to consider extending protections to others, such as animals and artificial intelligence. I will outline these demands later in this introductory post. Do states and courts have a duty to address human rights subjecthood in a consistent and coherent manner? Most importantly: Do we have to deal with this matter coherently across world regions due to the common heading of ‘human rights protection’ or can and should there be, as it is the case now, different regional approaches to the protection of different non-human subjects despite this common heading? The blog posts in this EJIL:Talk! Symposium take a look at these questions and deal with different types of coherence demands with regards to the (human) rights protection of different non-human subjects in different world regions. The authors analyse the protection already afforded to various non-human subjects in regional human rights systems or explore the rationale for including or rejecting those subjects that have not yet entered the international human rights arena.
The divergent approaches to non-human subjects in regional human rights practice
Where do we stand? In the highly regarded Advisory Opinion 23/17 from 2017 and in a judgment rendered in 2020 in the case of The Indigenous Communities of the Lhaka Honhat v. Argentina, the Inter-American Court of Human Rights (IACtHR) stated that the human right to a healthy environment (Article 11 of the Protocol of San Salvador) is encompassed by Article 26 of the American Convention (Progressive Development) and is a multifaceted right: It protects human beings individually and collectively and addresses, beyond that, ‘as an autonomous right’, ‘components of the environment, such as forests, rivers and seas, as legal interests in themselves, even in the absence of the certainty or evidence of a risk to individuals’ (para. 62, para. 203). Consequently, this right protects components of nature as such, that is, as independent subjects. According to the Court, natural entities deserve their own protection not only due to the benefits they offer to mankind, but also due to their importance for living organisms in general. The Advisory Opinion and the 2020 judgment were seen as signs for the IACtHR’s openness to recognising ‘Rights of Nature’ in line with ecocentric worldviews in the framework of the Inter-American human rights system (‘Right to a Healthy Environment as “Rights to Nature“‘ (RoN)). In a further landmark decision of 2023, Community of La Oroya v. Peru, the IACtHR set another important precedent for the right to a healthy environment as an autonomous right, recognising its collective nature, for the first time, in a case not concerning Indigenous people. To date, the IACtHR has not ruled on standalone nature-related claims that are independent of human protection concerns. The 2020 case centered on Argentina’s violations of indigenous groups’ rights to community property, a healthy environment, cultural identity, food, and water. In the 2023 case, the Court held Peru internationally responsible for violating the right to a healthy environment due to mining activities that exposed La Oroya’s residents to toxic pollution. However, the IACtHR’s repeated references to nature’s autonomous protection interests suggest that it has opened the door to potential human rights claims brought independently on behalf of nature, even without evidence of harm to individuals (see also here and here on this view). Granting robust legal rights to nature aligns with RoN proponents, who present two key arguments for why elements of nature deserve autonomous rights. The first is a moral argument, asserting that recognising nature’s legal rights is essential to preserving ‘intrinsic value’ of nature. The second argument is instrumental. It underlines that acknowledging environmental personhood and original rights of nature is a decisive tool in fighting the escalating global ecological degradation. The fact that standing to file an individual petition with the Inter-American Commission is not limited to the individual victim, but is instead open to ‘any person or group of persons, or any nongovernmental entity legally recognized in one or more member organizations’ who may submit petitions alleging violations of the Convention by a State Party (Article 44 of the American Convention), makes the step to include nature protection into the Inter-American human rights system – on a procedural level – easier than in the European human rights system (see on standing requirements Tim Eicke’s contributions in this symposium).
The European Court of Human Rights, has, on different occasions and with regards to different Convention rights, recognised that human rights and the environment are interrelated (see here on relevant case-law) and acknowledged in the KlimaSeniorinnen judgment that Article 8 of the European Convention on Human Rights (ECHR) encompasses a right to effective protection by the State authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life, thereby creating what the author of the dissenting opinion (and author in this Symposium), Judge Tim Eicke, called a ‘new right’ (partly concurring partly dissenting opinion of Judge Eicke to ECtHR KlimaSeniorinnen, para. 59 et seq.). Nevertheless, ECtHR continues to decline granting human rights protection related to the ‘general deterioration of the environment’ (see, for example, Kyrtatos v. Greece, para. 52, confirmed in the KlimaSeniorinnen judgment, para. 446). The long-awaited introduction of a European right to a healthy environment could be the turning point that grants the ECtHR the political impetus to adopt a more holistic understanding of the relationship between humans and nature (see my reflection on this here).
The divergent approaches to recognising human rights protections for non-human subjects persist in the realm of what has been critically termed ‘corporate human rights’ protection: Some courts, including the ECtHR, the European Court of Justice (ECJ), and the ECOWAS Court of Justice (ECCJ) (see my analysis on the latter two here), recognise that the artificial legal construct ‘company’ is protected by human rights law. The ECtHR, for example, assumes that companies do not only enjoy economically relevant rights, such as procedural rights, or the protection of property (see, e.g., Oao Neftyanaya Kompaniya Yukos v. Russia), but also so-called first-generation freedoms, such as respect for home (see, e.g. Société Colas Est et al. v France) or freedom of expression (see, e.g., Autronic AG v. Switzerland), even if exercised purely for commercial purposes. With regards to corporate protection, we see a cross-regional convergence between the European and an African system: The ECOWAS Court of Justice held, on several occasions, that there is a catalogue of ‘fundamental rights’ to which corporate bodies are entitled to enjoy and be protected (right to fair hearing, right to property and right to freedom of expression, see, e.g., Dexter Oil v. Republic of Liberia or La Société Bédir Sarl vs. Republic of Niger). In this context, the ECCJ – articulating its position with greater linguistic and theoretical clarity than its European counterpart (the ECtHR largely lacks a robust theoretical or doctrinal justification for corporate protection) – distinguishes between the (limited catalogue of) fundamental rights protection afforded to companies under the human rights framework and the protection of human rights that is exclusively owed to vulnerable human beings. In contrast, the Inter-American Court of Human Rights explicitly refuses to recognise companies as autonomous rights holders and instead applies what can be called a ‘derivative rights’ approach. This approach assumes that companies can only rely on human rights to the extent that natural persons behind them are entitled to human rights protection. In a landmark Advisory Opinion OC-22 issued in 2016 (see the unofficial English translation here), the Court held that a legal person such as a company does not enjoy the rights guaranteed by the American Convention. However, the Court acknowledged that natural persons should not suffer any disadvantage and allowed natural person claiming rights linked to the activities of a legal person to address a complaint directly to the Inter-American System in order to claim a violation of the legal person’s rights (even if domestic legal remedies have been exhausted only by that legal person).
Calls for a coherent approach to granting (human) rights to non-human subjects
The fact that in some – mainly European human rights – systems, human rights protection is granted to corporations that ‘do not breathe, drink, or eat,’ but often mainly aim for profit maximisation, is met with strong criticism (see, for a prominent example, here). Some commentators transcend the argument against granting human rights protection to corporations into the proactive demand that no lower level of protection should be granted to other non-human subjects in order to avoid moral contradictions. Coherence demands apply to different types of non-human entities: Advocates for animal rights protection raise the question “if corporations can have some personhood rights, why not animals, too?”. Proponents of Rights of Nature ask: If Corporations Have Rights, Shouldn’t Nature Too? — Earth Law Center or If Corporations Have Rights, Why Doesn’t Nature?. Those who advocate for ‘robots rights’ claim ‘Robots Are People, Too. If courts are going to treat corporations like humans, they should do the same for robots.’ If we take a closer look at the various non-human subjects mentioned in the quotes, it is evident that these claims do not concern the duty not to treat equals unequally (as arising from the general principle of equality). Qualities or properties of an ocean can hardly be compared to those of a corporation. Corporations are inevitably operated by humans, thus, a human nexus remains. In contrast, nature exists and thrives independently of human presence or activity. If coherence is not about comparability, rather, it is about an argument a fortiori: If even non-sentient, non-creative, non-vulnerable corporations, which sometimes significantly contribute to the worsening of the Triple Planetary Crisis and severe human rights violations, are granted (human) rights protection, then all the more so should subjects that are capable of suffering or autonomous decision-making, more deserving of protection and more relevant for the survival of humanity. This call for coherence can be complemented by others that take different nature and properties of the subjects (How are animals? What are robots?) or governance consequences of their (human) rights protection (What is enabled or caused by corporate human rights protection?) into account.
Coherence perspectives reflected in this Symposium
As the blog posts illustrate, various demands for coherence offer diverse analytical frameworks for addressing the issue of human rights protection for non-human subjects. The posts of this Symposium are not based on one consistent theory of human rights protection for non-human entities. In part, they engage with theoretical debates related to specific non-human entities in order to discuss their inclusion in judicial practice – or they argue from the historical or doctrinal logic of various judicial systems about how the extension of human rights protection to different subjects could be explained and justified. By doing so, they make a crucial contribution to developing a comprehensive theory for the potential and limits of granting judicial human rights protection to non-human entities in the future. This theory will have to take the fundamental differences of the diverse entities, mentioned above, as well as the different historical and cultural origins of the regional human rights systems into account. I am convinced that uncovering and critically evaluating the various dimensions of coherence and consistency is essential for the future development of human rights theory and practice. It lays the foundation for empowering courts, lawmakers, and civil society to engage in informed decision-making, whether in support of or against protecting non-human entities in the framework or on the level of human rights.
In their post‘Corporate Human Rights and International Law: Obstacle or Precursor to Human Rights Accountability?’, Michael Waibel and Rebecca McMenamin examine the coherence question with regards to the relationship between human rights protection for corporations and corporate accountability for human rights violations across the three regional human rights systems. They conclude that ‘protection and accountability is not an either-or-proposition’ and argue that the different systems have intentionally chosen to extend protection to different actors in varying degrees.
By contrast, Monica Feria-Tinta’s post, ‘Rights of Nature in Human Rights Courts or a Parallel Protection System?’, envisions the future potential for expanding human rights law to include Nature across regions, within the Inter-American, African, and European human rights systems. She identifies the global ‘ecological and climatological state of our world that is triggering this adaptation of the law’ as the key coherence argument driving such developments worldwide and across legal systems. In doing so, Monica Feria-Tinta can highlight recent developments in Europe detached from indigenous contexts, such as granting legal personality to Mar Menor, a coastal saltwater lagoon under Spanish law, and the motion to explore the rights of the River Ouse, passed by the Lewes District Council in England.
Saskia Stucki does not yet see a cross-regional consensus with regards to recognising strong legal rights for animals. In her post‘Emerging Animal Rights and Their Anthropo-, Zoo-, and Ecocentric Justifications’, she draws attention to regional disparities, emphasizing that the recognition of legal rights for animals has predominantly been ‘spearheaded by judges from the Global South.’ Saskia Stucki points to the ‘interplay of anthropocentric, zoocentric, and ecocentric rationales that is driving the emergence of animal rights alongside human rights and environmental rights’ and to what she calls ‘justificatory pluralism’. Assessed from the perspective of coherence, the ‘zoocentric frame of reference,’ Saskia Stucki points to, which highlights ‘intrinsic qualities of animals, such as their dignity or inherent value, sentience, personhood or subjecthood, or vulnerability,’ underscores the parallels between the protection needs of humans and animals.
In my post‘Robots and Human Rights: A Matter of Coherence?’ I explore a topic that may initially seem like something from a science fiction novel, but is, in fact, more pressing than some might realise: the idea of extending rights – at the level of human rights – to intelligent synthetic humanoid robots or, more broadly, to AI. The call for coherence made by proponents of robot rights takes various directions. Alongside the parallelisation of corporate and AI protection, one key argument relevant to all human rights systems across regions is that AI ‘properties’ such as rationality, intelligence, autonomy, (machine) consciousness, self-awareness, and sentience compel the recognition of AI as rights-holders. I contend that, primarily because – unlike animals – AI’s existence is human-made and dependent on it, the properties of AI do not automatically compel the recognition of (human) rights subjecthood for AI. Instead, from a functional perspective, and similar to corporate human rights protection, we must consider the potential role of AI entities as either a tool – or an obstacle – in addressing the current governance challenges surrounding the use of AI.
Finally, the Symposium benefits from the insights of two insiders from regional human rights systems that already, albeit to varying degrees, address the rights of non-human entities. In her post‘Science, Technology, ‘Human’ Dignity, and Rules’, Judge Verónica Gómez, writing from the perspective of an IACtHR judge, reflects on the extension of human rights protection to non-human entities in light of human dignity as the foundation of international human rights protection as it evolved after World War II. She underscores its particular significance for the Americas, for indigenous peoples, and Afro-descendant individuals and communities. In this context, she implicitly calls for coherence in two ways. First, she argues that discussions on the legal status of transnational corporations and the recognition of AI as a protected entity should not delay or overshadow the necessary intercultural and democratic dialogue within human societies. Second, regarding nature protection by the IACtHR, Verónica Gómez highlights the interdependence of our species with fauna and flora, an essential balance that sustains the conditions for our collective survival on this planet – which, in her view, warrants legal protection.
Judge Tim Eicke reflects on ‘Human Rights Protection of Non-Human Subjects from the Perspective of an ECtHR Judge’. He explains the historical origins and considerations for the inclusion of ‘legal persons’ in the protection system of the ECHR and identifies this inclusion, even when the ECtHR refers to corporations as an ‘independent living organism’, as an expression of human endeavour and therefore, ‘at heart very human centric’.This leads Tim Eicke to two different aspects of coherence: For him, the focus on humans and their protection serves as the current starting point, from which the protection of non-human subjects, such as animals, occurs within the ECHR system – more as a secondary effect rather than a primary objective. A new aspect of coherence in granting ECHR protection to non-human subjects might arise if legislative changes occurred at the national level with regards to the concept of ‘legal persons’ – such as the recognition of ‘animal legal persons’ or granting robots the status of a ‘legal person’, similar to the approach already taken by the Spanish Parliament in the case of the Mar Menor lagoon and its basin. Without speculating on the likelihood of such developments, Tim Eicke anticipates that, at some point, the Court may need to determine whether the Mar Menor lagoon qualifies as a ‘person … claiming to be a victim’ under Article 34 ECHR and whether ‘special circumstances’ justify its representation by humans who are not themselves victims. Again, without claiming to predict future developments, for Tim Eicke, given the ECtHR’s reasoning in KlimaSeniorinnen case, it seems unlikely that threats to the lagoon would meet the exceptional criteria applied in the climate-change case.
Introduction to the EJIL:Talk! Symposium on ‘Expanding Human Rights Protection to Non-Human Subjects? African, Inter-American and European Perspectives’
Written by Patricia WiaterWill we envision human rights courtrooms that are accessible to animals, ecosystems, robots, corporations, and humans?
Human rights practice is at a crossroads in addressing the inclusion of non-human subjects. Regional human rights courts have already extended human rights protection to certain non-human entities (corporations, nature), but the judicial practice is divided across regions. This divergence highlights that the treatment of non-human subjects is causing a shift in the foundation of human rights, leading to an uncertain future: What does the human in the concept of human rights mean? What are the implications of the European Court of Human Rights (ECtHR) granting human rights protections to corporations as independent legal subjects while denying protection against the ‘general deterioration of the environment,’ whereas the Inter-American Court of Human Rights (IACtHR) extends human rights protections to elements of nature – but not to corporations? The underlying texts of the Conventions may differ (Article 1 of Protocol No. 1 to the ECHR explicitly expands the right to property to ‘natural or legal person’), but this alone does not fully explain the varying approaches taken. The discrepancy in judicial practice (I will explain further in the following) extends beyond the common regional variations in human rights interpretation and application, as it directly challenges the very foundation of human rights justification: Who – or what – should be entitled to international human rights protections, and on what instrumental, political, or moral grounds? The Courts do not clearly present their underlying legal theoretical considerations. While Upendra Baxi’s reflections on the state of human rights in a ‘post human’ world have been enriching the human rights discourse for one and a half decades, and while important studies exist that explore whether and how the concept of legal personhood or rights can be applied to non-human entities (see, for example, here, here and here), there is no comprehensive legal theory of human rights protection that encompasses the diverse range of non-human entities (cf. however, the one rights approach related to animal rights).
In seeking a justification for the inclusion of non-human subjects, we could understand human rights protection as a tool for addressing global crises. States around the world share the common challenge of addressing the Triple Planetary Crisis while promoting corporate accountability for environmental and human rights violations. In this context, wouldn’t it be prudent, for instrumental reasons, to adopt the Inter-American approach globally, excluding corporations from human rights protections while extending them to natural entities, and implementing this uniformly across all regions – in order to strengthen judicial nature protection worldwide?
In recent articles, I elaborate from the perspective of a European lawyer, on why I do not believe this to be the most suitable approach for European human rights law. The specific political and economic background in Europe, coupled with a strong commitment to the rule of law, provides justification for extending (albeit limited) fundamental rights protection to corporations (see further discussion here). As the entry into force of the EU Directive on corporate sustainability due diligence (Directive 2024/1760) proves, this does not hinder fostering sustainable and responsible corporate behavior. Moreover, I argue that a comprehensive approach to nature protection and restoration that goes beyond human benefit, can – to a large extent – be realised through an ecological reorientation of human rights thinking and doctrine (see further discussion here). While extending human rights protection to nature is an option to discuss, this should not divert attention from the critical need for this ecological shift in the anthropocentric approach to rights protection, which I regard as both essential and doctrinally possible.
All of these different aspects, the foundations in positive law that could justify the inclusion of non-human subjects in human rights protection systems, overarching political or moral motives for doing so or refraining from it, and ultimately, the legal and factual consequences of such inclusion, must be the subject of our academic debate. This EJIL:Talk! Symposium Expanding Human Rights Protection to Non-Human Subjects? African, Inter-American, and European Perspectives’ provides a forum to do so.
There is even more reason to discuss: The inclusion of certain non-human subjects in human rights frameworks creates – worldwide – what can be called ‘coherence demands’ to consider extending protections to others, such as animals and artificial intelligence. I will outline these demands later in this introductory post. Do states and courts have a duty to address human rights subjecthood in a consistent and coherent manner? Most importantly: Do we have to deal with this matter coherently across world regions due to the common heading of ‘human rights protection’ or can and should there be, as it is the case now, different regional approaches to the protection of different non-human subjects despite this common heading? The blog posts in this EJIL:Talk! Symposium take a look at these questions and deal with different types of coherence demands with regards to the (human) rights protection of different non-human subjects in different world regions. The authors analyse the protection already afforded to various non-human subjects in regional human rights systems or explore the rationale for including or rejecting those subjects that have not yet entered the international human rights arena.
The divergent approaches to non-human subjects in regional human rights practice
Where do we stand? In the highly regarded Advisory Opinion 23/17 from 2017 and in a judgment rendered in 2020 in the case of The Indigenous Communities of the Lhaka Honhat v. Argentina, the Inter-American Court of Human Rights (IACtHR) stated that the human right to a healthy environment (Article 11 of the Protocol of San Salvador) is encompassed by Article 26 of the American Convention (Progressive Development) and is a multifaceted right: It protects human beings individually and collectively and addresses, beyond that, ‘as an autonomous right’, ‘components of the environment, such as forests, rivers and seas, as legal interests in themselves, even in the absence of the certainty or evidence of a risk to individuals’ (para. 62, para. 203). Consequently, this right protects components of nature as such, that is, as independent subjects. According to the Court, natural entities deserve their own protection not only due to the benefits they offer to mankind, but also due to their importance for living organisms in general. The Advisory Opinion and the 2020 judgment were seen as signs for the IACtHR’s openness to recognising ‘Rights of Nature’ in line with ecocentric worldviews in the framework of the Inter-American human rights system (‘Right to a Healthy Environment as “Rights to Nature“‘ (RoN)). In a further landmark decision of 2023, Community of La Oroya v. Peru, the IACtHR set another important precedent for the right to a healthy environment as an autonomous right, recognising its collective nature, for the first time, in a case not concerning Indigenous people. To date, the IACtHR has not ruled on standalone nature-related claims that are independent of human protection concerns. The 2020 case centered on Argentina’s violations of indigenous groups’ rights to community property, a healthy environment, cultural identity, food, and water. In the 2023 case, the Court held Peru internationally responsible for violating the right to a healthy environment due to mining activities that exposed La Oroya’s residents to toxic pollution. However, the IACtHR’s repeated references to nature’s autonomous protection interests suggest that it has opened the door to potential human rights claims brought independently on behalf of nature, even without evidence of harm to individuals (see also here and here on this view). Granting robust legal rights to nature aligns with RoN proponents, who present two key arguments for why elements of nature deserve autonomous rights. The first is a moral argument, asserting that recognising nature’s legal rights is essential to preserving ‘intrinsic value’ of nature. The second argument is instrumental. It underlines that acknowledging environmental personhood and original rights of nature is a decisive tool in fighting the escalating global ecological degradation. The fact that standing to file an individual petition with the Inter-American Commission is not limited to the individual victim, but is instead open to ‘any person or group of persons, or any nongovernmental entity legally recognized in one or more member organizations’ who may submit petitions alleging violations of the Convention by a State Party (Article 44 of the American Convention), makes the step to include nature protection into the Inter-American human rights system – on a procedural level – easier than in the European human rights system (see on standing requirements Tim Eicke’s contributions in this symposium).
The European Court of Human Rights, has, on different occasions and with regards to different Convention rights, recognised that human rights and the environment are interrelated (see here on relevant case-law) and acknowledged in the KlimaSeniorinnen judgment that Article 8 of the European Convention on Human Rights (ECHR) encompasses a right to effective protection by the State authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life, thereby creating what the author of the dissenting opinion (and author in this Symposium), Judge Tim Eicke, called a ‘new right’ (partly concurring partly dissenting opinion of Judge Eicke to ECtHR KlimaSeniorinnen, para. 59 et seq.). Nevertheless, ECtHR continues to decline granting human rights protection related to the ‘general deterioration of the environment’ (see, for example, Kyrtatos v. Greece, para. 52, confirmed in the KlimaSeniorinnen judgment, para. 446). The long-awaited introduction of a European right to a healthy environment could be the turning point that grants the ECtHR the political impetus to adopt a more holistic understanding of the relationship between humans and nature (see my reflection on this here).
The divergent approaches to recognising human rights protections for non-human subjects persist in the realm of what has been critically termed ‘corporate human rights’ protection: Some courts, including the ECtHR, the European Court of Justice (ECJ), and the ECOWAS Court of Justice (ECCJ) (see my analysis on the latter two here), recognise that the artificial legal construct ‘company’ is protected by human rights law. The ECtHR, for example, assumes that companies do not only enjoy economically relevant rights, such as procedural rights, or the protection of property (see, e.g., Oao Neftyanaya Kompaniya Yukos v. Russia), but also so-called first-generation freedoms, such as respect for home (see, e.g. Société Colas Est et al. v France) or freedom of expression (see, e.g., Autronic AG v. Switzerland), even if exercised purely for commercial purposes. With regards to corporate protection, we see a cross-regional convergence between the European and an African system: The ECOWAS Court of Justice held, on several occasions, that there is a catalogue of ‘fundamental rights’ to which corporate bodies are entitled to enjoy and be protected (right to fair hearing, right to property and right to freedom of expression, see, e.g., Dexter Oil v. Republic of Liberia or La Société Bédir Sarl vs. Republic of Niger). In this context, the ECCJ – articulating its position with greater linguistic and theoretical clarity than its European counterpart (the ECtHR largely lacks a robust theoretical or doctrinal justification for corporate protection) – distinguishes between the (limited catalogue of) fundamental rights protection afforded to companies under the human rights framework and the protection of human rights that is exclusively owed to vulnerable human beings. In contrast, the Inter-American Court of Human Rights explicitly refuses to recognise companies as autonomous rights holders and instead applies what can be called a ‘derivative rights’ approach. This approach assumes that companies can only rely on human rights to the extent that natural persons behind them are entitled to human rights protection. In a landmark Advisory Opinion OC-22 issued in 2016 (see the unofficial English translation here), the Court held that a legal person such as a company does not enjoy the rights guaranteed by the American Convention. However, the Court acknowledged that natural persons should not suffer any disadvantage and allowed natural person claiming rights linked to the activities of a legal person to address a complaint directly to the Inter-American System in order to claim a violation of the legal person’s rights (even if domestic legal remedies have been exhausted only by that legal person).
Calls for a coherent approach to granting (human) rights to non-human subjects
The fact that in some – mainly European human rights – systems, human rights protection is granted to corporations that ‘do not breathe, drink, or eat,’ but often mainly aim for profit maximisation, is met with strong criticism (see, for a prominent example, here). Some commentators transcend the argument against granting human rights protection to corporations into the proactive demand that no lower level of protection should be granted to other non-human subjects in order to avoid moral contradictions. Coherence demands apply to different types of non-human entities: Advocates for animal rights protection raise the question “if corporations can have some personhood rights, why not animals, too?”. Proponents of Rights of Nature ask: If Corporations Have Rights, Shouldn’t Nature Too? — Earth Law Center or If Corporations Have Rights, Why Doesn’t Nature?. Those who advocate for ‘robots rights’ claim ‘Robots Are People, Too. If courts are going to treat corporations like humans, they should do the same for robots.’ If we take a closer look at the various non-human subjects mentioned in the quotes, it is evident that these claims do not concern the duty not to treat equals unequally (as arising from the general principle of equality). Qualities or properties of an ocean can hardly be compared to those of a corporation. Corporations are inevitably operated by humans, thus, a human nexus remains. In contrast, nature exists and thrives independently of human presence or activity. If coherence is not about comparability, rather, it is about an argument a fortiori: If even non-sentient, non-creative, non-vulnerable corporations, which sometimes significantly contribute to the worsening of the Triple Planetary Crisis and severe human rights violations, are granted (human) rights protection, then all the more so should subjects that are capable of suffering or autonomous decision-making, more deserving of protection and more relevant for the survival of humanity. This call for coherence can be complemented by others that take different nature and properties of the subjects (How are animals? What are robots?) or governance consequences of their (human) rights protection (What is enabled or caused by corporate human rights protection?) into account.
Coherence perspectives reflected in this Symposium
As the blog posts illustrate, various demands for coherence offer diverse analytical frameworks for addressing the issue of human rights protection for non-human subjects. The posts of this Symposium are not based on one consistent theory of human rights protection for non-human entities. In part, they engage with theoretical debates related to specific non-human entities in order to discuss their inclusion in judicial practice – or they argue from the historical or doctrinal logic of various judicial systems about how the extension of human rights protection to different subjects could be explained and justified. By doing so, they make a crucial contribution to developing a comprehensive theory for the potential and limits of granting judicial human rights protection to non-human entities in the future. This theory will have to take the fundamental differences of the diverse entities, mentioned above, as well as the different historical and cultural origins of the regional human rights systems into account. I am convinced that uncovering and critically evaluating the various dimensions of coherence and consistency is essential for the future development of human rights theory and practice. It lays the foundation for empowering courts, lawmakers, and civil society to engage in informed decision-making, whether in support of or against protecting non-human entities in the framework or on the level of human rights.
In their post ‘Corporate Human Rights and International Law: Obstacle or Precursor to Human Rights Accountability?’, Michael Waibel and Rebecca McMenamin examine the coherence question with regards to the relationship between human rights protection for corporations and corporate accountability for human rights violations across the three regional human rights systems. They conclude that ‘protection and accountability is not an either-or-proposition’ and argue that the different systems have intentionally chosen to extend protection to different actors in varying degrees.
By contrast, Monica Feria-Tinta’s post, ‘Rights of Nature in Human Rights Courts or a Parallel Protection System?’, envisions the future potential for expanding human rights law to include Nature across regions, within the Inter-American, African, and European human rights systems. She identifies the global ‘ecological and climatological state of our world that is triggering this adaptation of the law’ as the key coherence argument driving such developments worldwide and across legal systems. In doing so, Monica Feria-Tinta can highlight recent developments in Europe detached from indigenous contexts, such as granting legal personality to Mar Menor, a coastal saltwater lagoon under Spanish law, and the motion to explore the rights of the River Ouse, passed by the Lewes District Council in England.
Saskia Stucki does not yet see a cross-regional consensus with regards to recognising strong legal rights for animals. In her post ‘Emerging Animal Rights and Their Anthropo-, Zoo-, and Ecocentric Justifications’, she draws attention to regional disparities, emphasizing that the recognition of legal rights for animals has predominantly been ‘spearheaded by judges from the Global South.’ Saskia Stucki points to the ‘interplay of anthropocentric, zoocentric, and ecocentric rationales that is driving the emergence of animal rights alongside human rights and environmental rights’ and to what she calls ‘justificatory pluralism’. Assessed from the perspective of coherence, the ‘zoocentric frame of reference,’ Saskia Stucki points to, which highlights ‘intrinsic qualities of animals, such as their dignity or inherent value, sentience, personhood or subjecthood, or vulnerability,’ underscores the parallels between the protection needs of humans and animals.
In my post ‘Robots and Human Rights: A Matter of Coherence?’ I explore a topic that may initially seem like something from a science fiction novel, but is, in fact, more pressing than some might realise: the idea of extending rights – at the level of human rights – to intelligent synthetic humanoid robots or, more broadly, to AI. The call for coherence made by proponents of robot rights takes various directions. Alongside the parallelisation of corporate and AI protection, one key argument relevant to all human rights systems across regions is that AI ‘properties’ such as rationality, intelligence, autonomy, (machine) consciousness, self-awareness, and sentience compel the recognition of AI as rights-holders. I contend that, primarily because – unlike animals – AI’s existence is human-made and dependent on it, the properties of AI do not automatically compel the recognition of (human) rights subjecthood for AI. Instead, from a functional perspective, and similar to corporate human rights protection, we must consider the potential role of AI entities as either a tool – or an obstacle – in addressing the current governance challenges surrounding the use of AI.
Finally, the Symposium benefits from the insights of two insiders from regional human rights systems that already, albeit to varying degrees, address the rights of non-human entities. In her post ‘Science, Technology, ‘Human’ Dignity, and Rules’, Judge Verónica Gómez, writing from the perspective of an IACtHR judge, reflects on the extension of human rights protection to non-human entities in light of human dignity as the foundation of international human rights protection as it evolved after World War II. She underscores its particular significance for the Americas, for indigenous peoples, and Afro-descendant individuals and communities. In this context, she implicitly calls for coherence in two ways. First, she argues that discussions on the legal status of transnational corporations and the recognition of AI as a protected entity should not delay or overshadow the necessary intercultural and democratic dialogue within human societies. Second, regarding nature protection by the IACtHR, Verónica Gómez highlights the interdependence of our species with fauna and flora, an essential balance that sustains the conditions for our collective survival on this planet – which, in her view, warrants legal protection.
Judge Tim Eicke reflects on ‘Human Rights Protection of Non-Human Subjects from the Perspective of an ECtHR Judge’. He explains the historical origins and considerations for the inclusion of ‘legal persons’ in the protection system of the ECHR and identifies this inclusion, even when the ECtHR refers to corporations as an ‘independent living organism’, as an expression of human endeavour and therefore, ‘at heart very human centric’.This leads Tim Eicke to two different aspects of coherence: For him, the focus on humans and their protection serves as the current starting point, from which the protection of non-human subjects, such as animals, occurs within the ECHR system – more as a secondary effect rather than a primary objective. A new aspect of coherence in granting ECHR protection to non-human subjects might arise if legislative changes occurred at the national level with regards to the concept of ‘legal persons’ – such as the recognition of ‘animal legal persons’ or granting robots the status of a ‘legal person’, similar to the approach already taken by the Spanish Parliament in the case of the Mar Menor lagoon and its basin. Without speculating on the likelihood of such developments, Tim Eicke anticipates that, at some point, the Court may need to determine whether the Mar Menor lagoon qualifies as a ‘person … claiming to be a victim’ under Article 34 ECHR and whether ‘special circumstances’ justify its representation by humans who are not themselves victims. Again, without claiming to predict future developments, for Tim Eicke, given the ECtHR’s reasoning in KlimaSeniorinnen case, it seems unlikely that threats to the lagoon would meet the exceptional criteria applied in the climate-change case.
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