I’m about to present a very lofty aspiration for International Law, one on recognising nature as a living person. But is this possible and practical?
Under new legislation, the Whanganui River in New Zealand became the first major river in the world to be recognised as a living entity. The river was afforded legal personality – the legal status of a human being, combining “western legal precedent with Maori [customs]”.
In the space of 24 hours, the Indian High Court at Uttarakhand declared the sacred Ganges and Yamuna rivers a legal “person” in a bid to save it from pollution. In light of these events, would recognising nature as a living person having rights and obligations be possible and practical in actualising environmental protection on the international scale?
These recent developments in the law reflect a shift in society’s view of nature as a mere resource to an entity that deserves fundamental rights. This view is not at all a new take on environmental protection. In the 1960s and 1970s, environmental groups were facing enormous difficulties in satisfying the standing requirements of the courts for participating in environmental litigations. In Sierra Club v Morton, the Supreme Court refused to recognise the Sierra Club’s right to intervene and contest the building of a dam that received government approval for construction. Justice Douglas asserted that natural resources ought to have a standing to sue for their own protection in his famous dissent:
“Inanimate objects are sometimes parties in litigation. A ship has legal personality … So it should be as respects valleys… rivers, lakes… or even air that feels the destructive pressures of modern technology and modern life. … The voice of the existing beneficiaries of these environmental wonders should be heard.”
In the recent Indian High Court case of Salim v State of Uttarakhand nearly 45 years later, the same sentiment echoes. The ruling in that case was made in response to a writ petition against pollution from industrial waste and mining amidst mounting pressures from the public and international community to clean up the river.
This clearly illustrates that the concepts of legal entity and artificial personality exist to serve the needs of the law and can be flexible to respond to the changing needs of society. A change in international law to reflect this is very possible.
But, will the governments’ recognition of Nature’s inherent right be practical in tackling environmental pollution?
My answer is no, unless its undesired legal implications are negated. Affording nature the rights and obligations of humans is fraught with a number of unwitting legal consequences. Also, there are difficulties in the enforcement and recognition of nature having legal personality.
For once, Nature will answer for its actions in Court. This raises the question about who is to be responsible for exercising nature’s rights and obligations.
The Indian High Court and NZ Parliament have similar views in that the rivers will possess the legal position similar to that of a church – status of an infant:
“[The government] is declared in loco parentis (in place of their parent) as the human face to protect, conserve and preserve [the rivers] … while exercising the parens patrie jurisdiction (government’s prerogative to protect those without capacity protect themselves) over [the rivers] declared as a legal person.”
But will governments around the world be willing to take the brunt of actions against their rivers, knowing that they would be liable in torts and crime? They would no doubt be able to seek recourse against environmental polluters, but would also be liable to be sued for running dry, freezing, flooding, and causing damage to vessels, etc. Furthermore, victims of environmental pollution, wild weather, landslides and natural disasters would also be able to sue for damages. This would not be the case if the rivers had not been declared as having legal personality, and thus any tort or crime would be taken as having occurred force majeure or as an act of god.
That said, would all UN member states have a similar position as India and New Zealand in light of the unwitting legal consequences?
Article 93 of the UN Charter mandates that all UN member states are parties to the ICJ Statute. Article 38(1)(b-c) of the ICJ statute states that the Court will apply ‘international customs’ and the ‘general principles of law’. These include principles of consent and reciprocity. A juridical concept that is not universally recognised and consented to by most if not all member states would render it useless and unenforceable in international law, no matter what benefits it might bring. Furthermore, the lack of cross-border recognition would only serve to fragment ties between states, especially those with rivers used as international waterways such as the Danube, Amazon and Mekong rivers.
Declaring the rivers (and Nature) a legal person may aid in protecting and preserving the cultural and religious heritage associated with the rivers, but would not be a sound environmental protection solution in light of the present legal challenges it brings.
Jing-Zhi (Benjamin) Wong is in his final year of his Bachelor of Science (Engineering Science & Law and Society) at The University of Western Australia. He aspires to be a Lawyer/Barrister and spends his time day-dreaming about lawyering in the Assizes of Clarendon and Northampton.
 Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (NZ) s 12.
 Al Jazeera News, “New Zealand river is the world’s first ‘legal person’.” Al Jazeera News, March 16 2017. http://www.aljazeera.com/news/2017/03/zealand-river-world-legal-person-170316091153248.html
 Sierra Club v Morton, 405 US 727 (1972).
 Salim v State of Uttarakhand, WP PIL 126-2014 (High Court of Uttarakhand, Mar. 20, 2017).
 Phillip Blumberg, The Multinational Challenge to Corporation Law: The Search for a New Corporate Personality (Oxford University Press, 1993) 209, 214.