COURTS in Ohio are wrestling with an unusual question: how do you weigh up the rights of two people when one of them is a lake?
For several years, Lake Erie has been hit by an annual bloom of toxic algae caused by run-off from surrounding farmland. , the contamination is so bad local people are warned against drinking water from their taps.
Existing environmental protections clearly weren’t working. So residents of Toledo, a city at the western end of the lake, took drastic action earlier this year and voted to protect Lake Erie as if it were a person. The legislation gives the lake the right to “exist, flourish and naturally evolve”. But farmers were quick to challenge the law.
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Giving nature rights is a strategy for protecting the environment that is building steam. Rivers in nations including India and New Zealand now have such rights. In July, Bangladesh became the first country to grant all its rivers – some 700 in total – legal personhood. It may sound like a strange tactic, but could it also be an effective one?
The principle of human rights emerged during the 18th century, the idea being that certain fundamental things are allowed of people or owed to them. The 1776 American Declaration of Independence, for example, established a person’s right to life, liberty and the pursuit of happiness.
The case for extending legal rights to the environment was by University of Southern California law professor Christopher Stone in 1972. But other ways of protecting the environment became more mainstream. Many nations have laws that make it illegal to dump pollution. There are also many areas, such as national parks, where human activities that could damage the environment are tightly regulated.
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This may not be enough. In May, a major UN report concluded that environmental destruction is so bad that it threatens human existence. “There is a sense that the current way of responding to the environmental crisis isn’t working,” says Maria Lee at University College London.
Frustration seems to be what fuelled the legal move related to Lake Erie. “With each step the people took in the traditional legal framework, they realised they needed to try a different approach,” says Tish O’Dell at the Community Environmental Legal Defense Fund, a non-profit law firm that helped Toledo draft its law.
Many other stretches of water around the world have been given rights in the past few years (see “Water power”). The strategy could work for other aspects of nature too. Laws in Bolivia and Ecuador offer blanket protection rights to the countries’ ecosystems. New Zealand is also working towards giving forests and a mountain similar rights to those it has already bestowed on the Whanganui river.
There is reason to think the strategy will be helpful. The introduction of human rights proved not to be empty words: the shift in thinking helped abolish slavery by providing a vocabulary for arguing the practice was wrong, says at the Swedish University of Agricultural Sciences.
And although it might seem strange to give rights to inanimate objects, we have already done that on a huge scale. Companies, trade unions and nations all have legal rights. “The organisations that will be challenging the legal status of rivers have not necessarily got any more reason to exist as a legal entity than a river does,” says Peter Higgins at the University of Edinburgh, UK. “It makes you think.”
That may be the lasting power of this movement. Defending nature’s rights in court will force us to reassess assumptions long taken for granted. For Philippe Cullet at the University of London, it is a matter of addressing the anthropocentrism at the heart of environmental law. It will make lawyers consider protection from a standpoint other than how useful a river is to us, he says.
Protection conferred by rights may also be hard to remove or weaken. If a government tried to take away anti-discrimination legislation for human minority groups, the move would be attacked as illegitimate, even if such a law was adopted through a democratic process, says Chapron. “Using rights may therefore act as a moral bulwark against the legal downgrading which has been problematic for nature laws.”
Still, the protection isn’t automatic or absolute. The UN’s Universal Declaration of Human Rights states: “Everyone has the right to life, liberty and security of person.” Yet prisoners have their liberty taken away and soldiers die for their country. “To say that a river has rights doesn’t necessarily mean that the river will be pristine,” says Lee.
What’s more, certain countries choose to ignore human rights. People are arbitrarily locked up or tortured all the time. Rights offer protection only where there is a fair legal system to uphold them.
Even with that in place, it is unclear how environmental rights should be enforced in practice. In some cases, such as India’s legal rights for the Ganges river, human representatives are responsible for acting on behalf of their legal charges. Or it may be that anybody can file a lawsuit if they think nature’s rights are being violated. Either way, unless people keep an eye out and speak up for nature, giving it rights won’t help.
“I don’t think we yet have a foolproof mechanism to ensure that the rights holders can claim their entitlements,” says Cullet. As a case in point, Bolivia and Ecuador – which introduced rights for nature in 2008 and 2010, respectively – have failed to slow their environmental degradation.
A bigger problem will be who pays the legal fees. In a battle between a multinational company and a river backed by concerned citizens, the side with the deeper pockets has the advantage.
In several legal fights that have played out so far, rights haven’t stopped the environment from losing. Take Grant Township in Pennsylvania, where a law recognising the rights of natural ecosystems was held to infringe the rights of corporations.
“Organisations and nations don’t necessarily have any more reason to exist as a legal entity than a river”
Lake Erie’s status is uncertain too. It’s not just challenges from farmers it has to contend with. In August, a business lobby group managed to relating to Ohio’s state budget stating that nature doesn’t have rights. The courts have yet to decide whether this statement or Lake Erie’s rights will win out.
That doesn’t mean rights for nature won’t work though. “History has shown us that when trying to change the status quo and expand rights to a new, non-rights-bearing entity, the first case rarely wins,” says O’Dell. “However, it can ignite a movement.”
Water power
Many rivers and a few lakes around the world are getting rights as if they were people
1 In July, Bangladesh granted personhood to all its rivers. This means that anyone who damages one can be sued by its human representatives on a government-appointed commission.
2 Last year, 25 young people , demanding a plan to preserve the environment. Part of the fallout was a decision to give the Colombian section of the Amazon river legal personhood.
3 The Ganges and one of its main tributaries, the Yamuna – both held sacred by Hindus – have the legal right to not be harmed, and can be parties in disputes.
4 Local Maori consider the Whanganui river (main image) in New Zealand to be an ancestor. But it has become severely degraded. In 2017, the country’s government recognised the river as a legal person in a settlement known as Te Awa Tupua.
5 Because Lake Erie is regularly polluted, residents of Toledo, Ohio, voted this year to give it legal personhood. The move is subject to ongoing legal wrangles, however, with a business group hoping to have the lake’s rights made illegal.
