ENVIRONMENTAL PERSONHOOD: SHOULD NATURAL ELEMENTS HAVE LEGAL STANCE?

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Environmental personhood is understood as the legal concept which designates certain inanimate entities the status of a legal person. The legal person standing guarantees to a subject or entity the right to enter into contracts, to sue and be sued, own property, etc. Historically, the word ‘Person’ was used to refer to individual human beings.[1] Nowadays this definition was challenged and extended to inanimate objects and natural entities such as water basins, trees, mountains and other natural elements.

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Should trees have a standing? The origins of Environmental Personhood

Since legal rights are not human rights, for being recognized as a legal person, the subject does not need to be a human being. Corporate personhood is an example: it designates a company as a legal person and it endows it with particular legal rights granting legal distinction between the firm and its managers and shareholders.[2] This concept was already employed as early as 800 BC when India granted legal personhood to an organization operating in the State’s interests. When it comes to environment, the process was much slower. The idea of nature being a legal entity finds its origins in 1972 with Christopher D. Stone’s work “Should Trees Have Standing? Towards Legal Rights for Natural Objects”. In his book, Stone launched a worldwide debate on the basic nature of legal rights that reached the U.S Supreme Court at the time. The book was also a rallying point for the burgeoning environmental movement and was referred to by Justice William Douglas in the Court case Sierra Club v. Morton.[3] In this judgment Douglas’s dissenting opinion was focused on the idea that certain natural elements should have a locus standi before the Court. Promoters of the right of nature perceive a parallelism between the principles of Gaia and the recognition of a legal stance to natural elements. Gaia, or Gaea from means literally “mother earth”, the Greek goddess mother of the titans.[4] As Lovelock defines it, Gaia is the “[…] complex entity involving the earth’s atmosphere, biosphere, oceans and soil [whose] totality constitutes a feedback or cybernetic system which seeks an optimal physical and chemical environment for life on this planet”.[5] This ecocentric view of the Planet wants to underline that the earth’s surface is alive and human and nature should interact in a mutually enhancing manner.

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Legal developments and the role of indigenous populations

The impact of this holistic approach of wholeness and awareness of the identity of the nature can be seen in recent legal developments around the world. From Latin America to New Zealand, judicial pronouncements changed the usual legal narrative characterized by anthropocentric perspectives to one more ecocentric. Ecocentrism advocates for considering nature for its own intrinsic value. Following this perspective, Ecuador, Bolivia, New Zealand and India introduced different legal conceptions of nature’s legal personality.

 

The case of Ecuador: Pachamama as part of the constitution

In Ecuador the environment was given a renewed importance in 2007. This happened as a consequence of the Citizen’s revolution demanding a new constitution for the country. For this new text, the indigenous groups of the country forwarded the request of the incorporation of their concept of Pachamama (Mother Earth) in the constitution. The demand was well received, and the new constitution was approved by a national referendum, including a chapter named “Rights for Nature”. Thus, Ecuador became the first country in the world to incorporate the rights of nature in its constitution. With this novelty, the natural environment is not treated as a property under law but rather as a living system that has the right to exist, persist, maintain and regenerate its vital cycles.[6] It also grants people the legal authority to enforce these rights on behalf of the ecosystem.

Bolivia and the Law of Mother Earth

Bolivia followed just few years later in 2010 with the Universal Declaration of the Rights of Mother Earth. This text was adopted internationally and requires people to “uphold and respect the rights of Mother Earth”. These rights were previously set out by the country itself in 2009 with the Law of Mother Earth and they include the right to: life, diversity, water, clean air, equilibrium, restoration and pollution-free living.[7] Also in this country, the demand for rights of nature was brought about by the indigenous population and campesinos (small-scale farmers).

 

The Whanganui river as a legal personality in New Zealand

As in the previous countries, also in New Zealand the importance of granting rights to nature was highlighted by the Māori, a tribal community living in the country. For more than 140 years this population fought for the recognition of the river Whanganui as their ancestor. Finally, in 2017, after 140 years of legal fight for its legal recognition, the State of New Zealand led to legislation, the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017. This endorses the requests of Māori of granting the Whanganui river with legal personality, with rights that can be judicially enforced by two appointed guardians, one from the Crown and one from the Whanganui tribe. This unique approach sees no differentiation in harming the tribe or harming the river itself since they are considered as one and the same.

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India, animal rights and rivers personhood

Meanwhile, in India, the juridical thinking is trying to navigate an ecocentric course through significant judicial pronouncements. On this line we find the pronouncement regarding the case Narayan Dutt Bhatt vs Union of India And Others on 4 July, 2018.[8] The judgment was a consequence of the increased concern on the health of transport animals (e.g. donkeys, horses) which were used along the 14 km route from the town of Banbasa Uttarakhand, India to Mahendra Nagar, Nepal. This decision by the Uttarakhand High Court recognizes legal personality to the members of the animal kingdom with the aim to “… protect and promote the greater welfare of animals including avian and aquatic animals”.[9] However, the most important judicial pronouncement in the country is from 2017, when the Uttarakhand High Court, in Mohd. Salim v. State of Uttarakhand, ruled that the two rivers, Gangotri and Yamunotri, are to be considered ‘living entities having the status of a legal person with all corresponding rights, duties and liabilities of a living person’.[10] The same recognition as living entities was also given to rivers, streams, rivulets, lakes, air, meadows, dales, jungles, forests wetlands, grasslands, springs and waterfalls. In this way, as seen as in previous countries, any harm caused to these bodies shall be treated as being caused to the human beings. Considering the rights of communities living near the lakes, glaciers and riverbanks, the Court allowed the Chief Secretary of Uttarakhand to co-opt seven public representatives from the State to give representation to such communities.

 

Conclusion

With the shift from an anthropocentric to an ecocentric conception of nature, some countries around the world realized the importance of designating natural element with their own legal personhood. This aims at protecting the environment from damages caused by pollution, overfishing, deforestation and other types of physical violence. In the context of these important outcomes, it is necessary to highlight the role of indigenous populations and tribes and their long and difficult fights to grant inanimate entities with legal personality. However, these rulings and constitutional innovations come with significant limitations. An entity bestowed with legal rights, is also supposed to undertake some duties. For example, a persons’ right to life goes hand in hand with the duty to not endanger others’ lives, a concept that would not work for natural entities. In addition, in the case of rivers, their trans-boundary natures make law enforcement inherently difficult causing unclear responsibilities in the figures of guardians and responsible authorities. At the end of the day, the project of giving nature a voice is becoming less abstract and more feasible. As the world economic forum suggested, recognizing the legal capacity of forests and ecosystems would also grant the recognition of their material assets such as funds. These funds could then be invested in the restoration of damaged sub-ecosystems, expansion of an endangered forest and other ways of marginalizing negative effects on the environment.[11] Nowadays the greatest challenge is being able to listen and understand the voice of nature and grant it with an appropriate and efficient legal representation.

 

 

 

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Note

[1] P. Pathak, The status of legal person defined under private international law, 2019

[2] E. O’Donnell, J. Talbot-Jones, Three rivers are now legally people – but that’s just the start of looking after them, The Conversation, 2017, available at: https://theconversation.com/three-rivers-are-now-legally-people-but-thats-just-the-start-of-looking-after-them-74983

[3] S. Khandelwal, Environmental Personhood: Recent Developments and the Road Ahead, Jursit Legal News and Commentary, 2020

[4] S. Vallejo Galárraga, The international legal personhood of nature and other ecosystems: a legal approach based on ecocentric ethics, 2019

[5] Lovelock, James, and James E. Lovelock. Gaia: A new look at life on earth. Oxford Paperbacks, 2000

[6] Del Ecuador, Asamblea Constituyente. “Constitución de la República del Ecuador.” Quito: Tribunal Constitucional del Ecuador. Registro oficial Nro 449 (2008).

[7] Vidal, John. “Bolivia enshrines natural world’s rights with equal status for Mother Earth.” The Guardian 10 (2011).

[8] Uttaranchal High Court, Judgment of the case Narayan Dutt Bhatt vs Union Of India And Others on 4 July, 2018, available at: https://indiankanoon.org/doc/157891019/

[9] From directions of the division bench of Justice Rajiv Sharma and Lopkal Singh

[10] S. Khandelwal, Environmental Personhood: Recent Developments and the Road Ahead, Jursit Legal News and Commentary, 2020

[11] N. De Toledo, What if nature became a legal person?, World Economic forum Online, 2020

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