rights of nature
What does it mean to recognize to a more than human legal rights?
Recognizing legal rights to more than humans is the same as acknowledging natural beings’ legal equality to humans, which is a profound cultural and legal shift in terms of how we relate to, and interact with the earth systems. Legal rights are not the same as human rights, and so a “legal person” does not necessarily have to be a human being or an organization, run by humans.
Understanding more than humans as equal entities is part of a “socio-psychic” element of a visionary paradigm that lawyer Christopher Stone argued in his approach on legal rights for natural objects – "a new “myth” and “consciousness” - to counteract the intellectualized and contained mind-set vision of Western law and liberal human rights vision to a healthy environment".
In this regard, a recognition of a cosmological definition in law could assist and encourage humans, meaning all of us, to foster a kin relationship with the natural world (being it air, water, forest, mountains, …)
"Personifying the environment might re-engender in others the fellow-feeling for other life forms and the feeling that they are connected to the natural world. This connectedness might in turn revive the beliefs in kinship bonds and sacredness which is so sorely needed in this world where nature has very few rights or other protections."
Catherine J. Iorns Magallanes
Why the rights of nature are not recognized as constitutional right in 98% of all nations in the world?
Recognizing legal rights means the law would consider “more than humans” as a legal entity. If rivers were considered legal entities, there would be more strict regulations of exploitation and extractivism to prevent the destruction of ecosystems. Against this backdrop, common arguments against the Rights of Nature are reenforced by actors of social welfare and those with invested economic interests, who want to exploit, pollute, extract or kill the ecosystem without being accountable for it, such as governments and corporations. In the case of corporations, the supreme court has endorsed corporate personhood. So why shouldn't a river be considered as a legal entity?
Currently, nature has no legal status of its own, but is protected indirectly by the subjective human rights. Lawyers call this kind of indirect protection a “legal reflex”: human subjects have rights to life, to physical integrity, and to property. If nature is polluted or destroyed in a way that would affect one of these rights, the affected human subjects have the right to be protected—and nature is protected indirectly by this legal mechanism, too.
An example of how it can be different : How Whanganui River was granted personhood in New Zealand 2017?
Whanganui saying “Ko au te awa, ko te awa ko au” (I am the river and the river is me)
The river is seen as the ancestor of the Whanganui tribes and is said to be the core to the existence of Whanganui Iwi and their health and wellbeing, providing both physical and spiritual sustenance to Whanganui Iwi from immemorial time. This inseparable relationship with and for the river, nurtures the responsibilities of the iwi tribes and hapū subtribes of Whanganui to care, protect, and manage the use of the Whanganui River in accordance with the kawa and tikanga protocols of the tribes.
A brief resume on aspects taken into consideration in the Whanganui River Settlement Agreement:
A brief resume on aspects taken in consideration in the Whanganui River Settlement Agreement:
"(...) recognize the river “Te Awa Tupua" as a legal entity with standing in its own right, powers, duties and liabilities of a legal person, a living entity which is incapable of being ‘owned’ in an absolute sense”,
(...) A key interest of the river is its health and wellbeing. This is specifically addressed through the development of a “Whole of River Strategy”, which will be designed to address and advance the environmental, social, cultural and economic health and wellbeing of the Whanganui River.
(...)In order to act in the name of Te Awa Tupua and to uphold and protect the interests of the river, an official Guardian will be established by legislation, comprising two persons “of high standing,
(...)Granting two guardians, one appointed by the Crown and one appointed collectively by all tribes with interests in the river.(...)This Guardian – called Te Pou Tupua – will “promote and protect the health and wellbeing of Te Awa Tupua and act and speak on behalf of Te Awa Tupua,” and uphold its status as well as the values contained in Tupua te Kawa.(...)It will participate in relevant statutory processes and hold property or funds in the name of Te Awa Tupua. While the official government guardian embodies a co-governance arrangement, with both Maori and non-Maori members, this power is expected to enable stronger legal respect for the environment, more in line with Maori cosmology."
Legal personhood and rights for ecosystems has been recognized in legislation and court decisions in the countries listed below:
New Zealand, Bangladesh, Bolivia, Colombia, Ecuador, India, Mexico City, Uganda and in the USA: Ho Chunk Tribal Council, Ponca Tribal Council.
Articles and books:
Should trees have standing- toward legal rights for natural objects, Christopher D. Stone
Can nature have rights?: Legal and Political Insights, Jens Kersten
Nature as an Ancestor: Two Examples of Legal Personality for Nature in New Zealand,
Catherine J. Iorns Magallanes
Changing the legal status of nature: recent developments and future possibilities, Michelle Malony
The Revelator is an online platform for news and ideas of the Center for Biological Diversity (USA). It provides editorially independent reporting, analysis and stories on politics, conservation, art, culture, endangered species, climate change, economics and the future of wild species, wild places and the planet. Their article on legal rights for rivers reflects on the changes in environmental law when nature has rights.
The International Water Law Project was created by Gabriel Eckstein - also director of the project and Professor of Law at Texas A&M University School of Law. Its mission is to serve as fundamental online resource for international water law and policy issues. We recommend taking a look at their analysis on the case of granted personhood of the Whanganui River in New Zealand.
Founded in 2000, VertigO is an interdisciplinary scientific journal of natural sciences and humanities within the French-speaking community. It promotes and disseminates scientific research and analysis on major contemporary environmental issues. On the platform, we found a greatly detailed article (in English) by Catherine J. Iorns Magallanes on the cases of Whanganui River and Te Urewera National Park, which have been given legal personhood in New Zealand law.