The debate on rights for nature and rivers reaches Switzerland. The liberal right-wing daily Neue Zürcher Zeitung (NZZ) sees it as a philosophical question…
When nature goes to court: Why should the river Reuss become a legal entity?
With its intensive agriculture, the canton of Lucerne in central Switzerland is known as the “pig valley”. Lakes and rivers have suffered for four decades. Now the initiators want the water to have rights too. But is this possible?
A philosophical question could soon be on the ballot paper in the canton of Lucerne: Should it be possible to defend a river in court? Yes, say the authors of an initiative (legal popular campaign collecting signatures to enforce a vote/referendum). If a farmer or a factory pollutes the river Reuss with liquid manure or poison, if the Department of the Environment fails to enforce limit values for pollutants, then this should not go unpunished.
The association “Rechtsperson Reuss” (Rightholder Reuss) has been collecting signatures for a little over a week. Their initiative states: All members of society, including non-human members, should be able to rely on the constitution and assert their rights in court.
The proposal calls for all public waters in the canton to be granted basic rights. They should also be given legal personality – that is, the status of a subject that can become active in the legal system, defend itself and take legal action. But is this possible for a river or a lake?
Markus Schärli is one of the co-founders. The 70-year-old says: “Companies or associations also have the status of a legal entity, even assets in the form of a foundation – but not nature. He wants to change this.”
The initiators propose the following: The cantonal parliament should appoint an independent committee of experts, such as hydrologists or environmental engineers. They would act as advocates for the waters. They would monitor compliance with the standards. They would take legal action if violations were found.
Schärli is president of the association Rechtsperson Reuss. He holds a doctorate in economics, was a journalist for Swiss Radio SRF and began studying law towards the end of his professional career. He wrote his bachelor’s thesis in legal philosophy on the rights of non-human nature. He says: “Legal personality is the crucial currency. If you don’t have it, you have no say in the legal system and you are marginalised.”
Laws are not respected
That’s the situation today: People have rights, but our environment still does not. There are laws that protect our waters. But in the eyes of the initiators, they are not being consistently implemented in Switzerland either.
Under the current federal law on water protection, for example, the canton can fine a farmer for misconduct. “But the fines are minimal and do little harm,” says Schärli. The farmer would rather continue polluting than take expensive measures. Besides, the fine goes to the state. There is no guarantee that the state will use the money to restore the lost biodiversity.
The initiative wants to go beyond individual cases. The overall situation is much more serious. “It’s not individuals who pollute the water, it’s all of us together,” says Schärli, “and that’s why a fundamental measure is needed.”
Swiss waters too often polluted
Water quality is a cause for concern in many parts of Switzerland. The Federal Office for the Environment writes: “Although water quality has improved in some areas, in many places it does not meet the minimum legal requirements.” Pesticides from agriculture and pharmaceuticals from urban run-off affect many streams and rivers in the Central Plateau and valleys. “Groundwater is widely contaminated with nitrates and pesticide degradation products. As a result, its use as drinking water is limited in some places.”
The canton of Lucerne is a special case study. It is no coincidence that this initiative is being launched here, in the so-called “pig valley”. Lakes Sempach, Hallwil and Baldegg are home to the largest concentration of pig farmers in Switzerland. For a long time there were more pigs than people in the canton. They generate an annual turnover of 1 billion euros, provide 3,500 jobs – and a polluted environment.
Lucerne’s lakes are gasping for air. The reason is an excessive concentration of phosphorus. It enters the lakes via rainwater from stables and over-fertilised fields. Once there, it causes algae to proliferate. They then die, depleting the water of oxygen and killing fish species such as whitefish.
The situation in the lakes has improved considerably in recent decades, according to the Lucerne Department of Construction, Environment and Economic Affairs. But: “Lakes Sempach, Baldegg and Hallwil do not meet the legal requirement of at least 4 milligrams of oxygen per litre of water at all times and must therefore be artificially aerated.”
This has been the case for forty years. According to an SRF investigation, the canton of Lucerne has spent more than 130 million Swiss francs of taxpayers’ money to artificially aerate the three lakes. But why?
Environmental agency versus lobby
It’s all about economic interests. Is the canton interfering with the farmers’ freedom of trade? Is it restricting their work, their income, in order to comply with water protection guidelines? The improvements in water quality are proof of this: Yes, something is being done. But still not enough, say the initiators. “The environmental office reports to a government council. This in turn is under pressure from political parties and a strong lobby”, says initiator Markus Schärli. That’s why interests are weighed up. And nature’s interests are usually neglected.
However, Schärli says the initiative aims to raise the legal status of water bodies “to the same level as the polluter”. The Green Party of the canton of Lucerne supports the initiative, as do the Forum for Ethics and Ecology, the Climate Grandparents of Central Switzerland and animal rights organisations.
In times of climate change, the Canton of Lucerne’s idea is not new. In New Zealand, the Whanganui River has been given this status. The Mar Menor in southern Spain was also granted legal personality after two disasters in 2019 and 2021: tonnes of fish died. Too many nutrients from the surrounding agriculture were getting into the salt lagoon.
Muted response to glacier protection
In Switzerland, Lisa Mazzone, the current president of the Green Party, submitted a postulate to the National Council in 2017. She called for melting glaciers to be given legal personality. The Federal Council replied cautiously that “this would run counter to our understanding of the law”. Glaciers are protected by landscape conservation regulations and in some cases by protected zones.
The situation is similar for water bodies. Isabelle Häner, professor of law at the University of Zurich, points this out. A canton could, as in the case of the Lucerne initiative, “certainly provide for ‘fundamental rights protection’ for bodies of water”. However, this would only apply within the framework of federal law. Where the Confederation has already issued binding regulations, the canton cannot impose stricter ones, says Häner.
According to the law professor, the initiative is likely to cause difficulties in implementation, precisely because it would have to be “carefully harmonised with higher-level law”. Häner also raises the question of how much clout the waters actually have as a legal entity and whether they could, in an emergency, go all the way to the Federal Supreme Court. Häner explains that this would only be possible if the constitution – in this specific case that of the canton of Lucerne – enshrined the protection of the fundamental rights of water bodies as a state responsibility and created an authority independent of the administration to enforce these rights.
These are certainly points that the initiators are calling for. “But even then, this authority could only go all the way to the Federal Supreme Court in exceptional cases – for example, if very important public interests are affected. In the case of the construction of a hydroelectric power plant, this could be seen as a serious encroachment on the fundamental rights of the watercourse,” says Häner. The law professor suspects that the initiators have ambitious goals, which they will probably not all achieve.
The fundamental question is philosophical. It is also idealistic. That is why the initiators are not afraid of the legal hurdles. “The whole legal system is a man-made construct,” says Markus Schärli. Everything is possible if you want it to be. The question is: do the people of Lucerne want it?
