River People

From an environmentalist standpoint, it can be a challenge to apply laws made for humans to the natural world, especially when many of those laws deal with nature solely as property with no inherent legal rights.

Most environmental laws have been crafted to deal with regulating exploitation or protection, but always from the perspective of human requirements or exploitation of resources, land and nature.

Mouth of the Ganges.
Image: Zastavki

But just as the intellectual property rights that were crafted to protect commercial interests have come to be used as a tool to protect indigenous and traditional knowledge from being exploited by commercial interests, so to are laws that surround legal personhood – such as those that protect the interests of companies  and other legal entities – being used to redefine the natural world.

The high court in the north Indian state of Uttarakhand has handed down a ruling that designates the River Ganges as a legal person. This designation was then extended to the River Yamuna, as well as the rivers’ respective source glaciers, Gangotri and Yamunotri, as well as other natural landscapes such as lakes, meadows,  jungles, forests, wetlands, grasslands, springs, waterfalls, and air.

Whanganui River.
Photo: Māori Party

This process took place first in New Zealand with the Te Urewera, an area of forested hills in the north-east that used to be a national park, which became a person for legal purposes in 2014, and the Whanganui River, the country’s third largest, in March 2017.

There have long been cultural and religious beliefs that respect natural elements as gods, deities, living beings worthy of the same respect as any other living creature.

The use of Western-based jurisprudence in this way leverages the human language of ownership by bestowing the fundamental rights we articulate for legal entities upon elements of nature that cannot speak for themselves in a court of law.

It means that, for example, legal action against a factory polluting a river doesn’t require humans to have been harmed or property to have been damaged in order for a river to be considered injured by pollution. The fact that the river is considered invested with fundamental rights means action can be taken on behalf of the river itself.

Yamuna River near Kalindi Kunj.
Photo: Burhaan Kinu/HT PHOTO

It’s a keen strategy, and one that could be very promising. Some have been saying that the Ganges is now considered a person, with all attendant rights. Considering what we humans do to one another, even within the law, this might not be the highest achievement.

But the Ganges and the Yamuna, their sources, the Whanganui River and other ‘persons’ of nature might just be more like something the law consistently protected with more reliability than it has individual people: They are like a corporation or company, legal entities our jurisprudence systems take very good care of around the world.

International Law of the Anthropocene

I found an interesting paper recently, International Law in the Anthropocene: Responding to the Geoengineering Challenge by Karen N. Scott, Professor in Law at the University of Canterbury in New Zealand. In it, she discusses the role of international environmental law in dealing with the impact humans have on the planet.

She focuses her attention on one aspect, geoengineering, defined in her paper as defined as “the intentional large-scale manipulation of the environment”. She describes geoengineering both as a part of the “climate change mitigation tool box” as well as a serious challenge to environmental protection.

She says, “The traditional distinction between humankind and nature and the characterization of the latter as something outside of, or other than, the human sphere no longer accurately reflects the relationship between humankind and the environment in the Anthropocene.”

And even if there is still some dispute over whether to call our current epoch the Anthropocene, Scott’s paper makes some intriguing arguments.

Environmental Projections Projections being what they are, this might not actually be the picture in 90 years – but that doesn’t mean we can’t act as if it might be. Source: EarthandEconomy.com via Visual.ly

In relation to using geoengineering as a tool to steer climate change, Scott says, “Geoengineering is qualitatively different from other mechanisms intended to mitigate or adapt to climate change. Geoengineering technologies and techniques are designed to lower surface temperatures or deliberately alter the carbon cycle on a global scale; all states and all peoples are likely to be affected. Image credit: andreykuzmin / 123RF Banque d'images
However, unlike emissions reductions and adaptation, which inherently require collective action in order to succeed, geoengineering technologies can potentially be deployed by a small number of states or even unilaterally by one powerful state acting in what it perceives to be the best interests of all states.”

“Without an appropriate forum to consider these options collectively, in the context of mitigation and adaptation more generally, the international community risks unleashing a twenty-first century version of the Legend of Phaethon.”

Scott proposes new measures for dealing with geoengineering within international environmental law under the United Nations Framework Convention on Climate Change (UNFCCC).

If the issues we face are global in nature (both literally and figuratively), then a global approach of this kind offers a promising framework, both for positive action and transparent regulation.


Michigan Journal of International Law articleInternational Law in the Anthropocene: Responding to the Geoengineering Challenge by Karen N. Scott