Do Rivers Have Rights? The Legal Standing of Rivers as a Reflection of the Societies in Which They Flow by Aoibh Manning

Do Rivers Have Rights? The Legal Standing of Rivers as a Reflection of the Societies in Which They Flow

By Aoibh Manning, JS Law & French

We do not give rights to nature, nature has rights. This assertion, often espoused by environmentalists, raises the question – when it comes to the rights of rivers, is it a matter of giving, or merely recognising? When we think of rights, we think of the freedoms and protections accorded to individuals by law, but there are rights that go beyond this. Such rights are universal and timeless, not limited by the limits of the law – moral rights. Some argue that the inherent moral rights of nature, derived from its intrinsic value, render the attribution of legal rights a simple task of recognition. Equally, others have rejected this conception, upholding the idea that moral rights are distinct to humans. However, this does not preclude the granting of legal rights to non-human elements of nature. Irrespective of moral understandings, an externalist strategy can be employed, and this legal structure utilised as a defining framework to protect rivers and the ecosystems that revolve around them.

This approach has already been adopted in several countries outside of Europe, with a clear intersection developing between the rights of rivers and those of indigenous peoples. Yet, as political scientist Mihnea Tănăsescu has pointed out, this does not stem from any philosophical affinity between the two, especially as rights are a typically Western legal category. Even still, a strategic relationship between the rights of rivers and indigenous communities has developed.

Intersection of the Rights of Indigenous Peoples and the Rights of Rivers

The Māori cosmovision of New Zealand’s indigenous community reflects the intrinsic value of nature. By rejecting the hierarchical conception of anthropocentric visions, these communities perceive humans as an integral part of nature, viewing the relationship between themselves and elements of nature like that of family - “I am the river and the river is me.” But how has this cosmological understanding contributed to the legal manifestation of rights for rivers? Since the end of the 19th century, the Māori have been fighting to defend the interests of the Whanganui river, using the legal tools available in the system imposed in their country. In 2017, following one of New Zealand’s longest-running court cases, the river was granted a legal personality and an official acceptance of the Māori cosmovision was observed in terms of jurisprudence. This was crucial to the process of regaining the reciprocal relationship with the river that had been lost during colonisation.

It could be argued that this attribution is more related to the protection of the indigenous community than the river itself. While such anthropocentric leanings are evident in the sense that these rights were conceived as a means to better protect the rights of the indigenous community and their cosmovision, the cosmovision itself offers a non-anthropocentric view of nature. As such, accepting these indigenous narratives into legal texts brings with it a recognition of living entities with intrinsic values. It becomes a matter of “protecting the cosmovision that protects the environment,” as posited by Catherine Mallaganes.

Water Page 14 In 2008, a new constitution was ratified by the Ecuadorian people, with a chapter entitled Rights for Nature. Although less pronounced than in New Zealand, reference to indigenous cosmology (Pacha Mama) is present and takes place at a far more fundamental level, reflecting the indigenous movement’s central role in laying the foundations for this environmental constitutionalism.

Beyond this Binomial – Varied Conceptions of the Rights of Rivers

Although Ecuador was first to establish this constitutional recognition of nature rights, the United States was the first to establish legal structures to recognise these rights – albeit on a municipal level, beginning with the Tamaqua Borough in 2006. Notwithstanding the subsequent recognition of nature rights by Native American communities in their tribal constitutions, this first step was taken by people outside these communities. Thus, despite their undeniable value and importance, indigenous cosmologies do not constitute the sole, inextricable basis of the rights of rivers. This is important to note in relation to Europe, where such a traditional cosmological link with the environment is less obvious. This perspective is furthered by the 2017 judgement of the High Court of Uttarakhand in India which recognised the legal personhood of two rivers. The judges’ reasoning in this case established an important dichotomy, explicitly relying on Hinduism to support the sacred status of these rivers, while supplementing with statistical and scientific knowledge. This type of frontier thinking could prove useful in introducing the rights of rivers within Europe, where science has dominated environmental concerns.

Evolution of Western Perspectives – From Anthropocentric Tradition to Cultural Maturity

Ironically, the concept of rights is often seen as a distinctly liberal European and Western Enlightenment idea. Rights are a shortcut for expressing a belief that an entity must be protected, which may then be validated by various beliefs and arguments – including both indigenous cosmologies and scientific realities. The Western cultural construction of rights can thus offer a potentially universal concept of nature protection, with a diverse assortment of cultures having already proven capable of working with the powerful normative language of rights. Yet, if rights naturally fit into European legal perspectives, why have they not been used to protect our rivers thus far?

The problem lies with another Western liberal concept – individualism. Unlike many indigenous communities, current Western attitudes are less disposed to collectivist values, which more readily embrace ecocentric conceptions of nature. As we have seen, Māori embrace nature as part of their collective, recognizing that they are part of it and vice versa. This does not fit with the standard paradigm of environmental protection in Europe, where nature is protected as something separate from humans. In fact, the laws ‘protecting rivers’ in Europe often amount to nothing more than a further extension of human rights. This perfectly demonstrates the instrumentalist perception that has dominated Western thinking on the subject for far too long. Since the Industrial Revolution, nature has been perceived as a stock of resources subject to the domination of an exploitative economy. A change of mentality is necessary. To give rights to rivers in Europe we must affirm a new vision of humanity, one which recognises a relationship of reciprocity and co-evolution. Awareness of the climate crisis and scientific alerts on the loss of biodiversity are already beginning to infuse the population. We are beginning to see a shift away from this anachronistic vision of our relationship with nature and towards cultural maturity. Is Europe ready to adopt a new ecocentric philosophy and, in doing so, recognise the rights of rivers?

Citizen Mobilisation In considering how this might be done, we must consider the power of citizen mobilisation. From a structural perspective, certain movements and organisations aim to bring the debate to the political level by building momentum and mobilising opinion. Global Alliance for the Rights of Nature (GARN) is a key actor in this area. One essential aspect of the work done by this organisation takes the form of public events hosted to raise awareness among the general public and public authorities about the protection of ecosystems through the Rights of Nature doctrine. One such event, that will take place later this year in June, is the Tribunal for the Rights of Europe’s Aquatic Ecosystems. This tribunal will follow an emblematic and educational approach; imagining how, if the rights of rivers were recognised, they would be defended in a justice system. A similar pedagogical experiment,