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Max Planck Encyclopedia of Public International Law [MPEPIL]

Nature, International Protection

Kerstin von der Decken, Moritz von Rochow

Content type:
Encyclopedia entries
Product:
Max Planck Encyclopedias of International Law [MPIL]

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Max Planck Encyclopedia of Public International Law [MPEPIL]
Article last updated:
January 2025

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 25 April 2025

Subject(s):
Indigenous peoples — Natural resources — Endangered species — Climate change — Environmental disputes — Pollution — Precautionary principle — International humanitarian law

Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020). 

Original version by Kerstin von der Decken August 2010; update by Kerstin von der Decken July 2015; substantive update by Moritz von Rochow January 2025.

A.  Definition

1  Etymologically, the word ‘nature’ is derived from the Latin word natura (birth, basic constitution, condition). It comprises the entire external world that has not been created or significantly changed by man, in contrast to culture, art, and technology. Nature is the most important element of the broader term ‘environment’. The latter comprises all physical, chemical, and biotic factors that determine life on Earth. Nature is one of these factors. Other environmental factors are climate, temperature, humidity, and light, for example. While the notion of ‘environment’ comes from an anthropocentric perspective and literally means ‘surrounding’ and covering what surrounds humans, the notion of ‘nature’ respectively means those parts of the earth that remained largely untouched by humans. Thus, the notion of ‘nature’ comes from an ecocentric perspective. Both notions are combined in the term ‘natural environment’, meaning humans’ untouched surroundings.

2  The protection of nature covers a wide field: the conservation of natural resources; the protection of biological diversity (Biological Diversity, International Protection); the protection of rare, migratory, and endangered species (Migratory Species, International Protection; Endangered Species, International Protection; Fish Stocks; Marine Mammals; Marine Living Resources, International Protection); the protection of living spaces like wetlands and forests (Forests, International Protection), or of complete ecosystems like the polar regions (the Arctic Region and Antarctica); the protection of the air (Air Pollution, Transboundary Aspects); the marine environment (Marine Environment, International Protection); the groundwater (Groundwater Protection); the soil (Desertification); the creation of nature reserves and national parks; the protection of natural landscapes; and the protection of the world natural heritage; as well as rules against certain behaviour (Marine Pollution from Ships, Prevention of and Responses to); and compensation regimes (International Oil Pollution Compensation Funds).

3  The protection of nature is reflected and incorporated into trade and investment agreements (Adinolfi (2020) 15) and border treaties (von Rochow (2024) 420) and is even protected by international humanitarian law (‘IHL’) (Arts 35(3) and 55 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (1977) (‘AP 1’); Humanitarian Law, International). As the natural environment underlies every area of international law as the basis for life (Natarjan and Dehm (2019)), the protection of the environment goes far beyond the realm of international environmental law in sensu stricto.

B.  International Treaties and their Historical Development

4  Already in classical antiquity, nature was a topic of thinking and writing (Zirnstein (1996) 26–30; Robinson and Westra (2002)). Moreover, nature (and its degradation) was probably one of the decisive factors for the stability and later for the decline of ancient Greek and Roman cultures (Hughes (2014)). Nevertheless, it was not until the eighteenth century that the first international treaties having a certain impact on the protection of nature, in the form of bilateral agreements on hunting and fishing rules, were concluded. For example, the idea to protect animals as living beings is an idea rooted in the Age of Enlightenment, leading to the first laws on animal protection in the 19th century (Schumann (2009) 183). In the nineteenth century the earliest regional fishery treaties emerged (Sand (2001) 35). However, the aim of those agreements was merely the management of living resources and their exploitation by various states. Still today, for the most part, international law treats nature as a resource to be exploited for the wealth generation of humans, while environmental degradation is considered an economic externality (Natarjan and Khoday (2022) 23). Since Emer de Vattel, the effective exploitation of nature was considered a yardstick for civilization and thus the ability to become sovereign. This perception was mirrored in the League of Nations mandate system, classifying former colonies into A, B, and C mandates, depending on the degree of transformation towards a more productive use of nature (Natarjan and Khoday (2022) 38; Mandates; Colonialism). The idea that less exploitive land management strategies, for example nomadic pastoralism (von Rochow (2024) 419), might potentially be more sustainable and thus more suitable for certain regions, could prevail in neither the socialist East nor the free West.

5  The intention to protect nature for its own sake developed later and still stands in the shadows of the perception of nature as human livelihood (anthropocentrism), for example, in IHL (Dienelt (2022) 22). Generally, the year 1902 is considered to mark the genuine beginning of the international protection of nature. At that time, the Convention for the Protection of Birds useful to Agriculture was concluded. Since then, there has been a steady but somewhat uncoordinated increase in international law-making regarding the protection of nature. The legal development may be subdivided into three phases (Korn, Stadler, and Stolpe (1999) 17–21).

1.  Beginning and Institution-Building (1900–69)

6  The development of international legal instruments for the protection of nature started slowly. An initiative of the US President Theodore Roosevelt to convene a world conference at The Hague in 1909 ‘on the subject of world resources, and their inventory, conservation, and wise utilization’ failed (Roosevelt (1913) 410–11). One of the earliest treaties explicitly protecting nature is the 1900 Convention for the Preservation of Wild Animals, Birds and Fish in Africa (which never entered into force).

7  In the years to follow only a few global treaties were concluded. Most of them were still based on the principle of utilitarianism (see, e.g., the International Convention for the Regulation of Whaling of 1946, which replaced the earlier Conventions of 1931/1937; Whaling). At the regional level, however, slowly advancing from utilitarianism, some comprehensive agreements were signed, which aimed more and more at protecting nature for its own sake: The Convention relative to the Preservation of Fauna and Flora in their Natural State (London Convention of 1933) (nine African and European ratifications) and the Convention on Nature Protection and Wild Life Preservation in the Western Hemisphere (1940) (19 ratifications from the Americas). When colonialism started to come to an end, some African authorities recognized the need for a new treaty to conserve nature, beginning with the 1961 Arusha Manifesto, authored by Julius Nyerere. In 1963, the member states of the Combined Commission for Technical Cooperation in Africa South of the Sahara (‘CTCA’), an organization, which despite its colonial origins had by that time opened up to a number of newly independent African states, adopted the African Charter for the Protection and Conservation of Nature. Shortly after, in 1964, the United Nations Economic Commission for Africa and the United Nations Educational, Scientific and Cultural Organization (UNESCO) recommended revising the London Convention of 1933, leading to the adoption of the African Convention on the Conservation of Nature and Natural Resources with an annexed list of protected species in Algiers on 15 September 1968. At the global level, the most important development was the foundation of several international organizations and institutions for the protection of nature, like the International Waterfowl and Wetland Research Bureau (‘IWRB’) in 1946, the International Union for the Protection of Nature (‘IUPN’) in 1948, and the World Wildlife Fund (‘WWF’) in 1961.

2.  Establishment and Consolidation (1970–79)

8  A new phase in the development of the protection of nature started with the ‘Man and the Biosphere’ (‘MAB’) programme of the UNESCO in 1970. More important, however, were the events in 1972: the Stockholm Declaration of the United Nations Conference on the Human Environment (see Stockholm Declaration (1972) and Rio Declaration (1992)), especially its Principle 4 related to nature conservation, and the establishment of the United Nations Environment Programme (UNEP). The rapid growth in the number of treaties at that time is intimately linked to these events. In fact, most of the treaties drafted during the early 1970s were adopted in connection with the UN Conference on the Human Environment (see, for example, the Convention on Wetlands of International Importance, especially as Waterfowl Habitat (1971) (‘Ramsar Convention’); the Convention for the Conservation of Antarctic Seals (1972); and the Convention for the Protection of the World Cultural and Natural Heritage (1972)).

9  UNEP, for its part, became one of the main forums for drafting important conventions (see, for example, the Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora (1973) and the Bonn Convention on the Conservation of Migratory Species of Wild Animals (1979) (‘Bonn Convention’)). Furthermore, the Regional Seas Conventions were developed under its auspices (see, for example, the Convention on the Protection of the Marine Environment of the Baltic Sea Area (‘Helsinki Convention’) (1974, later replaced by the new convention of 1992); the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (1976, revised in 1995); or the Kuwait Regional Convention for Co-operation on the Protection of the Marine Environment from Pollution (1978)). Later, most of the Regional Seas Conventions were supplemented with additional protocols and/or revised to adapt them more specifically to nature protection.

10  Furthermore, the Council of Europe (COE) began to devote considerable attention to the protection of nature. It designated the year 1970 as the first European Conservation Year (the second European Conservation Year was 1996), and started to draft both treaties (COE Convention on the Conservation of European Wildlife and Natural Habitats (1979)) and programmes (creation of a European Network of Biogenetic Reserves by the following Resolutions: COE Committee of Ministers, ‘Resolution on the European Network of Biogenetic Reserves’ (1976); COE Committee of Ministers, ‘Resolution concerning the Rules for the European Network of Biogenetic Reserves’ (1979); and COE Committee of Ministers, ‘Resolution concerning the Framework for the European Network of Biogenetic Reserves’ (1979)).

3.  Integrative Approach (since 1980)

11  The current phase is characterized by an integrative approach towards nature. It has been strongly influenced by a series of documents. The first one was the ‘World Conservation Strategy’ elaborated by the International Union for Conservation of Nature (‘IUCN’), UNEP, and WWF in cooperation with the Food and Agriculture Organization of the United Nations (FAO) and UNESCO in 1980. Its objectives were to provide an intellectual framework as well as practical implementation guidelines for maintaining essential ecological processes and life support systems, preserving genetic diversity, and ensuring the sustainable utilization of species and ecosystems. An updated version was published in 1991. From the same year on, several species-related conventions have been adopted, most of them now under the auspices of UNEP and connected to the Bonn Convention, which in its Article IV(3) and Article V calls on range states to conclude such supplementary agreements for the conservation and management of individual species or groups of related species. Those species-related conventions include the following agreements:

12  These agreements are administered by their specific secretariats and organize regular conferences of the parties (‘COP’; Conference (Meeting) of States Parties). The Bonn Convention provides in its Articles V–VII guidelines for these agreements and the COPs. Other species are protected by less formal Memoranda of Understanding under the auspices of the Bonn Convention and include the following (available at <https://www.cms.int/en/cms-instruments/mou> (accessed 21 October 2024)):

13  Furthermore, some species are dealt with in Special Species Initiatives, for example, the African Carnivores Initiative, the Central Asian Mammals Initiative, the Central Asian Flyway, and the SaheloSaharan Megafauna. Beyond the Bonn Convention framework, certain species are protected by independent international organizations, for example, the Whaling Moratorium of 1982, issued by the whaling authority according to the International Convention for the Regulation of Whaling (‘ICRW’), which remains in place today. Apart from regulating commercial whaling, the International Whaling Commission (‘IWC’) also sets catch limits every six years on aboriginal subsistence whaling. Special permit (or scientific) whaling is regulated differently. The ICRW only sets out that countries undertaking scientific whaling should report to the IWC on issued permits as well as on the scientific information gained through research.

14  Another important document was the ‘World Charter for Nature’ adopted by United Nations General Assembly (‘UNGA’) Resolution (‘Res’) 37/7. It raised awareness of the planetary dimension of nature protection and proclaimed the ‘principles of conservation by which all human conduct affecting nature is to be guided and judged’ (preamble in fine). The so-called Brundtland Report ‘Our Common Future’ of 1987, published by the World Commission on Environment and Development, adopted and developed some of the ideas of the World Conservation Strategy, especially the notion of sustainable development, which became one of the guiding principles of the 1992 UN Conference on Environment and Development (‘UNCED’) in Rio de Janeiro, which led to the Rio Declaration on Environment and Development of 14 June 1992. According to the Brundtland Report, the protection of nature constitutes one of the foundations of sustainable development (for more on the follow-up of the UNCED, see UNGA Res 47/191 ‘Institutional Arrangements to Follow up the United Nations Conference on Environment and Development’ (22 December 1992) and UNGA Res 55/199 ‘Ten-Year Review of Progress Achieved in the Implementation of the Outcome of the United Nations Conference on Environment and Development’ (20 December 2000)).

15  The new awareness of nature and its interdependence with other environmental and social features led to a new kind of international convention. The global treaties of the 1970s and early 1980s mostly dealt with single species or with special problems. Most global treaties concluded since the late 1980s and 1990s, however, follow a more holistic and integrative approach (see McNeely and others (1990) 56–62 on the necessity of such an approach). This is especially true for the Convention on Biological Diversity (1992). It combines aspects of conservation and protection of nature with the principle of sustainable utilization of natural resources. Another example is the Convention on Environmental Impact Assessment in a Transboundary Context (1991) (‘ESPOO Convention’; Environmental Impact Assessment). It regulates ‘any effect caused by a proposed activity on the environment including human health and safety, flora, fauna, soil, air, water, climate, landscape and historical monuments or other physical structures or the interaction among these factors’ (Art. 1(vii)). A similar all-embracing approach was developed at the regional level. The ASEAN Agreement on the Conservation of Nature and Natural Resources (1985), for example, aims at the conservation and management of natural resources in the ASEAN region, including the preservation of genetic diversity and the protection of endangered species.

16  The new holistic, integrative approach has influenced former treaties as well. Nature protection has been included in existing conventions with the help of protocols (Protocol on Environmental Protection to the Antarctic Treaty (1991)) or amendments (the Helsinki Convention was amended in 1992 and a new provision on nature conservation and biodiversity (Art. 15) was integrated).

17  Another consequence of the new approach is the stronger focus on the protection of habitats and ecosystems, rather than of single species. ‘Species-based’ protection is being complemented by an ‘area-based’ protection (Sand (2001) 35) as, for example, in the following instruments: the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (‘OSPAR Convention’); the Protocol on the Implementation of the Alpine Convention of 1991 relating to the Conservation of Nature and the Countryside (Protokoll zur Durchführung der Alpenkonvention von 1991 im Bereich Naturschutz und Landschaftspflege (1994)); and the European Landscape Convention (2000). Most area-based protection treaties are concluded at the regional level. Besides, comprehensive regional treaties continue to develop as well; see, for example, the Benelux Convention on Nature Conservation and Landscape Protection (1982) and the Maputo Convention (Revised African Convention on the Conservation of Nature and Natural Resources (2003)).

18  In 2021, the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (‘Escazú Agreement’) entered into force, being the first international agreement on environmental protection in Latin America. Notably, the agreement connects the protection of nature to human and indigenous rights, focusing particularly on the rights to information and participation (Environment and Indigenous Peoples; Indigenous Peoples). It is the first agreement explicitly safeguarding the rights of ‘[h]uman rights defenders in environmental matters’ to defend human rights in environmental matters free from threat, restriction, and insecurity.

C.  Customary International Law, General Principles, and Soft Law

19  The great variety of topics and problems in nature protection has led to a multitude of different treaty regimes containing specific rules for narrowly defined issues (Beyerlin and Marauhn (2011) 209). Therefore, common customary rules (Customary International Law) for the protection of nature as a whole are difficult to identify. Even for specific and especially urgent problems of nature protection, like the protection of endangered species, universal customary law can hardly be identified. The principle of equitable utilization of shared resources developed by the International Law Association (ILA) and UNEP applies as a rule of customary law only to common water resources (Odendahl (1998) 165–76). It has, however, meanwhile evolved as a general principle of international law.

20  In the broader field of international environmental law, the development of customary law has been discussed extensively. But the results can only partially be applied to the particular field of nature protection, mostly due to a lack of universal coherent practice. Furthermore, the legal scope of the general principles of international environmental law—such as the responsibility not to cause damage to the environment of other states, the principles of preventive action, of cooperation, of sustainable development, and of common but differentiated responsibilities, the precautionary approach/principle, and the polluter pays principle (Sands and Peel (2018) 197–251)—is neither uniform nor without controversy. The International Court of Justice (ICJ) has accepted the principle of prevention in Pulp Mills on the River Uruguay (Argentina v Uruguay) (2010) (para. 101) and its 2015 judgment on Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) (2015) (para. 104) as a rule of customary international law. The same assessment is undoubtedly true for the no-harm rule, including the responsibility to ensure that activities within a state’s jurisdiction or control do not cause damage to the environment of other states (see also Due Diligence). The principle of cooperation (Cooperation, International Law of), however—although present in most international environmental agreements—has no uniform meaning when it comes to details.

21  The other principles of international environmental law, such as the polluter-pays principle, the precautionary principle/approach, or the principle of sustainable development share a disputed status as sources of international law: Whereas some assert them with a sui-generis status (Dienelt (2022)), others see them as general principles of international law (von Arnauld (2022) 58; General Principles of Law). The former approach is based on the assumption that general principles must necessarily be derived from domestic legal systems, where these environmental principles do not universally resonate. The International Law Commission (ILC) in its 2022 Draft Conclusions on General Principles of Law (Draft Conclusion 7), however, accepts that general principles may also be genuinely formed within the international legal system, if the community of nations has recognized the respective principle as intrinsic to the international legal system. These criteria are met by most of the environmental principles as has been most recently proven by the adoption of the Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (‘BBNJ’).

22  As of the time of writing, the BBNJ, adopted in June 2023, is the latest global treaty dealing with the protection of marine nature. Article 7 lists general principles and approaches that have been widely recognized, inter alia the polluter-pays principle, the principle of common heritage of humankind (Common Heritage of Mankind), the principle of equity and fair and equitable sharing of benefits, and an ecosystem approach (Equity in International Law). Notably, although Article 7(e) references ‘the precautionary principle or precautionary approach, as appropriate’, the treaty language in Article 19 (Proposals) and Article 24 (Emergency Measures) specifically adopts the precautionary approach.

23  Most documents that enshrine so-called soft law are purely declaratory instruments and do not have a real impact on the protection of nature. Some instruments, however, have achieved a quasi-binding status and provide operational legal frameworks (Sand (2001) 44). Worth mentioning are, for example, the UNESCO MAB Programme ‘Statutory Framework of the World Network of Biosphere Reserves’ (1995) or the FAO International Undertaking on Plant Genetic Resources. The latter led to the adoption of a binding international agreement in 2001: the FAO International Treaty on Plant Genetic Resources for Food and Agriculture ((2001); Plant Genetic Resources, International Protection).

D.  Specific Spheres and Sustainable Development

24  In 2015 all UN member states adopted the 2030 Agenda for Sustainable Development, containing its 17 Sustainable Development Goals (‘SDGs’). The SDGs cover a broad spectrum of natural resources, including, inter alia, water, forests, landscapes, and biodiversity (Espa (2022) 77). SDG 14 deals with life below water and goal 15 with life on land. SDG 12 covers the sustainable management of natural resources, including air, and SDG 13 emphasizes the need for actions that not only mitigate climate change but also protects ecosystems and biodiversity. The goals are to be achieved by accomplishing a variety of targets set out for each SDG. With regard to the timeframe, the targets are given varying aspirational dates, some of which already lie in the past (as of the time of writing). Nevertheless, the goals remain ongoing despite the fact that their aspirational dates have passed or will soon pass.

1.  Water

25  SDG 14 calls on states to inter alia prevent and significantly reduce marine pollution by 2025, to sustainably manage and protect marine and coastal ecosystems, to minimize and address the impacts of ocean acidification, and to effectively regulate harvesting, end overfishing, illegal, unreported and unregulated fishing, and destructive fishing practices, and implement science-based management plans in order to restore fish stocks in the shortest time feasible, to conserve at least 10% of coastal and marine areas, to prohibit certain forms of fisheries subsidies which contribute to overcapacity and overfishing, and to eliminate subsidies that contribute to illegal, unreported, and unregulated fishing and to refrain from introducing new such subsidies—all by 2020.

26  One of the first global conventions to protect the maritime environment is the 1973/78 International Convention for the Prevention of Pollution from Ships (‘MARPOL’) of the International Maritime Organization (IMO), which specifies certain areas where, for oceanographic and ecological purposes, the adoption of a higher level of protection compared to other parts of the seas is deemed necessary. In June 2023 the Intergovernmental Conference on Marine Biodiversity of Areas beyond National Jurisdiction adopted as a third Implementation Agreement to the United Nations Convention on the Law of the Sea (‘UNCLOS’) the BBNJ. The BBNJ’s objective is to ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (High Seas). The BBNJ provides guidelines for marine genetic resources, for the creation of area-based management tools, including marine protected areas, environmental impact assessments, and capacity building, and the transfer of marine technology. After its entry into force, it will be the first global treaty devoted to the holistic protection of marine nature. Freshwater resources are protected by the Helsinki Rules (Convention on the Protection and Use of Transboundary Watercourses and International Lakes (1992)) and the Convention on the Law of the Non-Navigational Uses of International Watercourses, as well as numerous bilateral, multilateral, and regional agreements on rivers, aquifers, and lakes (Rieu-Clarke (2021) 130 et seq.).

2.  Soil

27  SDG 15 targets the sustainable management of forests, combatting desertification, and halting and eventually reversing land degradation and biodiversity loss. The targets under SDG 15 include the conservation, restoration, and sustainable use of terrestrial and inland freshwater ecosystems (forests, wetlands, mountains, and drylands) by 2020. Furthermore, deforestation shall be halted, degraded forests restored, and afforestation and reforestation globally increased. Degraded land shall be restored by 2030 and a land degradation–neutral world shall be achieved.

28  One of the most important conventions—if not the most important—protecting global soils is the United Nations Convention to Combat Desertification (1994) (‘UNCCD’). The convention contains general obligations in its Article 4 and special obligations of affected country Parties (Art. 5) and of developed country parties (Art. 6). According to the convention’s general obligations the Parties shall ‘adopt an integrated approach addressing the physical, biological and socio-economic aspects of the processes of desertification and drought’, including cooperation in the fields of environmental protection and the conservation of land and water resources, as they relate to desertification and drought (Art. 4(2)(a)). Affected developing country Parties are eligible for assistance in the implementation of the Convention.

29  Arid and semi-arid regions, shaped by so-called non-equilibrium environments, are particularly prone to soil degradation and desertification. ‘Land grabbing’ and the erection and closure of national borders, separating rangelands and water sources, especially pose a serious threat to non-equilibrium environments, which are characterized by an unpredictable variable climate and scarce natural resources. Nomadic pastoralists have for millennia evaded drought and allowed rangelands to regenerate by flexibly roaming from one pasture to the next, depending on current weather conditions. National borders and the privatization of fertile land, for example for the purpose of irrigated farming, have deprived populations of this extensive land management strategy, exposing rangelands to soil degradation and eventually desertification (von Rochow (2024) 415 et seq.).

30  According to UNCCD’s 2022 Global Land Outlook (2nd edn), rangelands are a major store of carbon with great potential for achieving environmental and development goals. Nomadic pastoralism is nowadays considered the most economically, culturally, and socially appropriate strategy to simultaneously secure livelihoods, conserve ecosystems, and promote wildlife conservation (von Rochow (2024) 419). This strategy, however, requires open spaces without borders. In consequence, especially the African regional organizations (Economic Community of West African States (ECOWAS); Central African Economic and Monetary Community (CAEMC/CEMAC); and Intergovernmental Authority on Development (‘IGAD’)) as well as the African Union (AU) have recently moved away from the Eurocentric concept of closed borders, now allowing free, safe, and orderly cross-border mobility of transhumant livestock and herders in search of pasture and water. The respective international agreements and legislative acts of the regional organizations include livestock corridors, transnational grazing areas, and transhumance certificates to contain disease spreading (von Rochow (2024) 423 et seq.).

31  The 2003 Maputo Convention on the Conservation of Nature and Natural Resources, which entered into force in 2016, deals with land and soil protection in its Article VI and compels parties to take effective measures against land degradation by developing long-term integrated strategies for the conservation and sustainable management of land resources, including soil, vegetation, and related hydrological processes. They shall adopt measures for the conservation and improvement of the soil, to, inter alia, combat its erosion and misuse as well as the deterioration of its physical, chemical, and biological or economic properties. Beyond Africa, the ‘Alpenkonvention’ is the only existing international treaty that explicitly and comprehensively protects soils (Markus (2015) 215).

3.  Air

32  Natural protection of the air requires mainly combatting pollution (Air Pollution, Transboundary Aspects) and promoting biodiversity of birds and bats. Whereas the latter aspect is dealt with in the next section, the former is regulated by the first multilateral convention of international environmental law, the Geneva Convention on Long-Range Transboundary Air Pollution (1979), and its eight protocols:

4.  Biodiversity

33  Biodiversity means the many different populations and species of organisms (flora and fauna), together with their evolved reservoirs of genetic material, and the ecosystems sustaining these species (landscapes) (Robinson (2018) 28). According to Article 2 Convention on Biological Diversity (‘CBD’), biological diversity means the variability among living organisms from all sources including, inter alia, terrestrial, marine, and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species, and of ecosystems. The supplementary Cartagena Protocol on Biosafety (2000) and the Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety (2010) deal with the biosafety risks raised by the proliferation of genetically modified organisms, while the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (2010) governs the fair and equitable access to genetic resources.

34  The 2022 United Nations Biodiversity Conference of the Parties (‘COP15’) in Montreal provided a new landmark agreement with regard to the protection of biodiversity: Its Global Biodiversity Framework (‘GBF’) contains four goals for 2050 and 23 targets for 2030. The goals include, inter alia, to enhance or restore the integrity, connectivity, and resilience of all ecosystems, substantially increasing the area of natural ecosystems. Human-induced extinction of known threatened species shall be halted, and the extinction rate and risk of all species shall be reduced tenfold. The genetic diversity within populations of wild and domesticated species shall be maintained, safeguarding their adaptive potential. Most notably, target 2 shall ensure that by 2030 at least 30% of areas of degraded terrestrial, inland water and coastal and marine ecosystems are under effective restoration. Furthermore, target 3 shall ensure that by 2030 at least 30% of terrestrial, inland water and of coastal and marine areas are effectively conserved as protected areas in addition to other effective area-based conservation measures. Legal mechanisms protect wildlife either by a species-based approach, by an area-based approach, or by an activity-based approach (Techera (2021) 118). Major instruments are the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora, the Bonn Convention, the CBD, the BBNJ Agreement, the Ramsar Convention, and the World Heritage Convention.

E.  The Natural Environment in Armed Conflicts

35  The ICJ in its Nuclear Weapons Advisory Opinions pointed out that states must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives (Environment, Protection in Armed Conflict). The ILC has stipulated 27 principles on the protection of the environment in relation to armed conflicts (UNGA, ‘Resolution 77/104: Protection of the Environment in Relation to Armed Conflicts’ (2022)). Whereas some provisions of IHL refer to the environment in general, a few of them explicitly cover the natural environment. Humanitarian treaty law covers the protection of the natural environment in Article 35(3) and Article 55 AP 1, which was drafted in the immediate aftermath of the deployment of Napalm and deforestation agents in the Vietnam War. Article 35(3) AP 1 prohibits the employment of methods or means of warfare that are intended, or may be expected, to cause widespread, long-term, and severe damage to the natural environment. (For interpretation of these cumulative criteria cf. Dienelt (2022)). Furthermore, according to Article 55 AP 1, care shall be taken in warfare to protect the natural environment against widespread, long-term, and severe damage, which includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population. Additionally, attacks against the natural environment by way of reprisals are prohibited.

36  In humanitarian law, the natural environment is understood as meaning the biological environment in which a population is living. Whether nature is to be protected as a human resource, necessary for a civilians’ survival (anthropocentric approach), or for its own sake (ecocentric approach), was disputed among the contracting parties of AP 1 (Dienelt (2022) 44). In the end, the anthropocentric approach prevailed in Article 55(1), whereas the wider Article 35(3) reflects the ecocentric approach, showing that the two aspects are not mutually exclusive (ibid 52). In addition to being explicitly protected, the environment, in general, is implicitly protected, for example by provisions aiming at nuclear power plants, dams, and dykes.

37  The 1976 UN Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques (‘ENMOD’), in its Article II, defines environmental modification as follows: ‘…the term “environmental modification techniques” refers to any technique for changing—through the deliberate manipulation of natural processes—the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere, and atmosphere, or of outer space’. The Convention basically prohibits weaponizing the natural environment (Dienelt (2022) 60).

38  Article 2(4) Protocol III (Incendiary Weapons) to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (1980) (‘Convention on Certain Conventional Weapons’) explicitly prohibits to make forests or other kinds of plant cover the object of attack by incendiary weapons, except when such natural elements are used to cover, conceal or camouflage combatants or other military objectives, or are themselves military objectives.

39  In 2005 the International Committee of the Red Cross (ICRC) identified 161 rules of customary IHL (Henckaerts and Doswald-Beck (2005)). Of these, Rules 43–45 explicitly cover the natural environment: According to Rule 43, no part of the natural environment may be attacked, unless it is a military objective. Destruction of any part of the natural environment is prohibited unless required by imperative military necessity. Launching an attack against a military objective that may be expected to cause excessive incidental damage to the environment in relation to the concrete and direct military advantage is prohibited. Rule 44 calls for due regard to the protection and preservation of the natural environment. Furthermore, according to Rule 45, the use of methods or means of warfare that are intended, or may be expected, to cause widespread, long-term, and severe damage to the natural environment is prohibited. Article 8(2)(b)(iv) Rome Statute of the International Criminal Court (1998) declares the intentional launching of an attack, knowing that consequences according to Rule 45 may emerge, to be a war crime (International Criminal Court (ICC); War Crimes). The destruction of the natural environment may not be used as a weapon.

40  At sea, paragraph 11 San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), which is a codification of customary law, encourages parties to a conflict, reflecting Article 194(5) UNCLOS, to agree that no hostile actions will be conducted in marine areas containing (a) rare or fragile ecosystems; or (b) the habitat of depleted, threatened, or endangered species or other forms of marine life. The San Remo Manual also classifies destruction of the natural environment as collateral damage, which according to paragraph 46 shall be avoided or minimized by all feasible precautions. Paragraph 44 of the San Remo Manual stipulates that methods and means of warfare should be employed with due regard for the natural environment considering the relevant rules of international law. Damage to or destruction of the natural environment not justified by military necessity and carried out wantonly is prohibited.

41  The 2009 Harvard Manual on Air and Missile Warfare, drafted as a restatement of customary law, codifies similar rules, for example the prohibition of wanton destruction of the natural environment and the obligation to give due regard to the natural environment, when planning and conducting air or missile operations. The 2017 Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations protects the natural environment in its Rule 143, by declaring it a ‘civilian object’ and extending the scope of Article 35(3) AP 1 to cyber warfare.

F.  The Role of International Organizations

42  The number of international organizations and non-governmental organizations (‘NGOs’) in the field of nature protection is probably higher than in any other area of environmental law. The most important inter-governmental institution remains UNEP (Boyle and Redgwell (2021) 617–27). Another important international organization, especially with regard to fishery regimes, is the FAO. UNESCO as well as regional law-making organizations like the COE, the Association of Southeast Asian Nations (ASEAN), the Organization of American States (OAS), and the African Union (AU) work in specific areas. All these international organizations draft treaties or act as focal points for administrative matters. A different but very important role is played by the European Union (‘EU’). Due to its large competences in the field of environmental protection, it has adopted several important regulations and directives for the protection of nature. Especially worthy of mention are the Habitats Directive (Council Directive 92/43/EEC) and the Birds Directive (Directive 2009/147/EC). The Habitats Directive protects over 200 special types of forests, meadows, wetlands, etc. (so-called ‘habitat types’) and over 1,000 animal and plant species of importance to Europe. The Birds Directive aims at creating a comprehensive protection for all wild bird species within the EU.

43  A unique role at the global level is played by the IUCN (Boyle and Redgwell (2021) 617–35), a dual-membership organization based in Gland, Switzerland. Established in 1948, the International Union for the Protection of Nature (‘IUPN’), as it was originally named, was the world’s first global environmental organization. In 1956, it changed its name to International Union for Conservation of Nature and Natural Resources and is commonly known as the International Union for Conservation of Nature. Among its members, there are more than 80 states, more than 200 government agencies, more than 900 NGOs, and about 11,000 voluntary scientists and experts. Due to this hybrid structure bringing together governmental and private actors, the IUCN assumes a key role for the promotion of instruments and strategies dealing with nature protection. The IUCN has drawn up important documents, like the World Conservation Strategy in 1980 (see para. 11 above), and acts as an initiator and co-sponsor of international treaties. Besides, it has developed its own Red Lists, categories of protectorates, and inventories.

44  The importance of NGOs in nature protection results from their constant and active participation in the law-making process, sometimes even by assuming the role of guardians of common interests (Charnovitz (1997) 235–36; Raustiala (1997) 549–51). One of the best-known among the thousands of NGOs is probably the WWF. Founded in 1961 and also based in Gland, Switzerland, the NGO changed its original name ‘World Wildlife Fund’ into ‘World Wide Fund for Nature’ (except in North America) in the 1980s. WWF has almost 6 million supporters and has funded over 13,000 conservation projects. It is one of the few NGOs that influence both the local and the global level of work.

45  Nevertheless, nature protection is far from being an exclusive domain of large and traditional NGOs based in the industrialized countries of the northern hemisphere. The spectrum of NGOs has become much more heterogeneous in recent years. Especially in developing countries, many new NGOs engaged in nature protection have been established. The increasing number of NGOs in Africa, Asia, and Latin America corresponds to the growing awareness of environmental problems in developing countries—a fact that is also reflected in the increasing amount of legal literature (see, for example, Dzidzornu (2004); Tripathi (2007); Mushkat (2004); Rojas Quiñónez (2004)).

46  Apart from NGOs specialized in nature protection, the activities of the ILA are also worth mentioning. As an international NGO having a consultative status within a number of UN specialized agencies (United Nations, Specialized Agencies), it fosters the study, clarification, and development of international law including the law on nature protection.

G.  Rights of Nature

47  Since the 1970s, academic discussion orbits around the question of granting nature itself—or at least some of its components—legal capacity and material rights as well as procedural legal standing (Mührel (2024) 186 et seq.) in international (and national) law (Rights of Nature) (Stone (1972) 456 et seq.; Arling (2023); Gilbert and others (2021); Matz-Lück (2024)). Among the advocates of Rights of Nature, numerous concepts are being discussed, like legal capacity, legal rights, legal personhood, or locus standi (Mührel (2024) 188). These concepts have in common that they turn nature or at least some of its features from passive beneficiaries of someone else’s legal duties into equal members of the legal community with their own enforceable interests, legally protected for their own sake (Mührel (2024) 188). These concepts differ, however, as they describe the status of intrinsic legal relevance at different chronological stages: First, an entity can have legal capacity, which will be ascribed implicitly when acknowledging legal rights. Second, legal rights require an enforceable interest of the bearer and must be expressly ascribed by the law-maker or the judiciary. Third, following the ascription of legal rights, an entity may be considered a legal person, taking part in legal life among equals (Mührel (2024) 188). Legal capacity can be understood as the potential to be the bearer of subjective rights. With the actual assignment of these rights by the legislative body or the judiciary, an entity becomes a legal subject or person. Legal standing, however, has its own specific requirements depending on the respective jurisdiction and its procedural rules. An entity will usually have locus standi if it has legal capacity or holds rights and is thus considered a legal person (Mührel (2024) 188).

48  Since Christopher Stone’s 1972 essay ‘Should Trees Have Standing?’, Peter Singer’s famous 1975 book ‘Animal Liberation’ (2023), and the granting of legal personhood rights to all great apes by the Balearic Islands in 2007, the debate has stepped up pace (on rights of animals, cf. Peters (2020); Stucki (2023)). Courts and lawmakers in Ecuador, Bolivia, the United States, Colombia, Argentina, India, New Zealand, Australia, Uganda, Bangladesh, and Spain have since recognized nature as a whole, or certain features, as entities with legal personality entitled to subjective rights. The ‘Rights of Nature’ approach views humans as part of ecosystems rather than separate from them and focuses on holistic, ecosystemic health, therefore better reflecting and accounting for interrelations between humans and nature (Arling (2023)). Consequently, from the Rights of Nature perspective ‘legal provisions are seen as a tool to achieve this goal of systemic transformation’ (Kauffman and Martin (2021) 7). Nature is considered to be a subject with fundamental rights, including the right to exist, to survive, to persist, and to generate vital cycles or simply to thrive (Borràs (2016) 114; Gilbert and others (2021) 52).

49  Globally, an increasing number of natural entities has received legal personality under national legislation and jurisprudence, for example rivers, forests, and most recently, in 2022, a marine bay in Spain, the Mar Menor (Gilbert and others (2021) 49, 62; Matz-Lück (2024)). (An overview of national legislation and jurisprudence, granting ‘rights of nature’ to certain natural features, can be found at <http://www.harmonywithnatureun.org/rightsOfNature/> (accessed 25 January 2025)). Since 2009, the UN General Assembly has adopted 14 resolutions on ‘Harmony with Nature’, calling ‘into question the mainstream Western anthropocentric and exploitative approach that has dominated international environmental law for decades and has accommodated perspectives from the Global South at the discipline’s margins’ (Mührel (2024) 366). These resolutions have been accompanied by at least nine Secretary-General reports and multiple interactive dialogues (Gilbert and others (2021) 56). Notably, the 2016 report recognizes the ‘fundamental legal rights of ecosystems and species to exist, thrive and regenerate’ (para. 36). Furthermore, Rights of Nature have been acknowledged by the UN’s 2030 Agenda for Sustainable Development (Kauffman and Martin (2021) 2). Following the soft-law ‘Universal Declaration of the Rights of Mother Earth’ (2010), international law-makers and academics have inter alia debated about a ‘Charter of the Fundamental Rights of Nature’ or an ‘International Tribunal for the Rights of Nature and Mother Earth’ (Maloney (2016); Matz-Lück (2024)) as well as a ‘Declaration of the Rights of the Moon’ (Gilbert and others (2021) 59). In 2022 the Kunming–Montreal Global Biodiversity Framework in its Annex (Section C, para. 7) calls Rights of Nature and rights of mother earth an integral part of the framework’s successful implementation for those countries that recognize them.

50  However, the diversity of approaches within the ‘Rights of Nature’ movement, and associated legal models are still poorly understood and under-theorized (Gilbert and others (2021) 64 et seq.; for an overview cf. Tabasescu (2022) and Kauffman/Martin (2021) 59 et seq. as well as Mührel (2024) 143 et seq.). Furthermore, practical problems will need to be solved, such as: Who is to grant representation for a piece of nature? (Ryan, Curry, and Rule (2021) 2509; Tanasescu (2022) 139). How to balance Rights of Nature against rights of (indigenous) communities and peoples to prosper in self-determination within this part of nature by using and exploiting it? How to balance a certain ecosystem’s right to remain untouched from the building of a railroad, the mining of rare earths, or the harvesting of biofuels against the global community’s interest in reducing carbon emissions by these means? (Ryan, Curry, and Rule (2021) 2454). Promoting the Rights of Nature approach, it would be crucial to resist international law’s universalizing tendencies, which risk sidelining plural worldviews and ignoring local and indigenous relationships with place (Gilbert and others (2021) 67; Tanasescu (2022) 135 et seq.). Already, dispossessing local (indigenous) communities for the sake of environmental protection (‘green grabbing’) and depriving them of a chance to become politically and economically involved in these matters poses a threat to their livelihoods. One approach could be to ‘think about a concept of nature as immediate environment … Nature as place, in other words, cannot admit of totalizing concepts but is instead focused on understanding how life is possible here, in this locality, under these changing conditions, with these participants’ (Tanasescu (2022) 34 et seq.) Taking it one step further, Montes Franceschini and Stilt (2024) argue that rights of nature and animal rights ‘can and should find synergistic connections … to reach some of the most significant planetary threats today, including industrial agriculture’, referring to the Ecuadorian Constitutional Court’s Estrellita decision of 27 January 2022, which ‘establishes and justifies the principle that a rights of nature (RoN) framework can include animal rights’—a conclusion that no court or legislation had reached previously (Montes Franceschini and Stilt (2024) 6).

51  Indigenous peoples and local communities (‘IPLCs’) are increasingly recognized both for their dependency on healthy ecosystems as well as for their essential role in conserving nature and biodiversity through traditional knowledge and sustainable practices that have safeguarded ecosystems over centuries (Parks and Tsioumani (2023)). International frameworks, such as the United Nations Declaration on the Rights of Indigenous Peoples (2007) (‘UNDRIP’), affirm the rights of indigenous peoples to their lands, territories, and resources, obligating states to uphold these rights. The CBD and more specifically its Nagoya Protocol further emphasize the importance of traditional knowledge in biodiversity conservation, promoting equitable benefit-sharing from genetic resources. Additionally, the BBNJ Treaty acknowledges the critical role of traditional knowledge in the sustainable management of marine biodiversity in areas beyond national jurisdiction. International legal bodies, including the Inter-American Court of Human Rights (IACtHR), as demonstrated in Saramaka People v Suriname (2007) have affirmed states’ obligation to consult with IPLCs where they might be affected and to allow for their participation in decision-making processes. Moreover, in the case of Ángela Poma Poma v Peru (2009), the Human Rights Committee (‘HRC’) ‘for the first time ever – expressly promoted and thus strengthened the principle of free, prior and informed consent in cases where indigenous peoples are affected by resource exploitation’ (Göcke (2010) 339). However, making indigenous communities the ‘native’ guardians (Tanasescu (2022) 104) of nature’s rights, risks replacing one anthropocentric approach with another: Nature’s economic value is pushed aside to make way for a certain spiritual value, which some natural sites might have for indigenous communities, further neglecting the intrinsic value, which nature has as an end in itself and which does not orbit around its economic or spiritual usefulness for human beings.

H.  Evaluation

52  The successive shaping of international legal instruments dedicated to the protection of nature illustrates the growing awareness that such a legal framework is necessary to respond to the challenge of effective nature protection.

53  Nevertheless, there remain several problems. One of them results from the extremely high number of legal instruments (for example, under the keyword ‘wild species and ecosystems’, the online treaty collection Ecolex lists over 200 global and regional treaties). The large number of treaties makes it difficult to have an overview of the applicable rules, to avoid duplication or even contradiction of norms, and to assign clear responsibilities. Besides the number of treaties, the multitude of actors at the different levels makes it difficult to determine them. Thus, the international protection of nature requires a new governance structure in order to guarantee a better coordination and promotion of synergies. Most attempts, including in other areas of environmental law, however, have failed so far (Hicks (1999) 1659). Amazingly, in spite of the ‘treaty inflation’, not all elements of nature are equally protected. In particular, the protection of forests, soil, and flora still lacks global and strong conventions.

54  Another problem is the implementation of and the compliance with treaty rules at the national level (Sands and Peel (2018) 449–51). Due to the fact that most regimes concern resources and areas under national jurisdiction, and due to the lack of effective control mechanisms, many protection regimes do not function in the best possible way. The notion of sovereignty and the principle of permanent sovereignty over national resources (Natural Resources, Permanent Sovereignty over) still constitute strong obstacles to a comprehensive and functional legal framework for nature protection, especially as nature still is widely regarded anthropocentrically as a resource of human exploitation, instead of a concern of humankind, deserving protection as an end in itself.

55  Beyond national jurisdiction, namely the high seas, nature is confronted with international law’s inbuilt weakness to control and enforce. Nevertheless, the creation of the International Seabed Authority (ISA) as a global body, governing common resources, might serve as a role model, turning no-man’s-sea into every-human’s-sea, thus evading the tragedy of the commons, an economic theory, according to which common resources are prone to degradation due to overexploitation, if they are not cooperatively managed. The 2023 BBNJ is another step on the path of protecting nature as an end in itself in areas lacking national jurisdiction.

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Cited Documents

Cited Cases