Kim Stanley Robinson’s The Ministry for the Future has a compelling premise: a ministry formed specifically for future generations to protect them from policies being implemented today. It’s an intriguing idea to give personhood to the not-yet born. In the book, this has been made necessary by the shocking and unprecedented effects of climate change: we need someone to advocate for the future generations otherwise the present ones will ruin everything in their wake.
Robinson’s book may be fiction but, in the real world, similar demands are being made: if we want to save nature, we are going to have to make it a person.
In this week’s The Global Tiller, we look closely at the calls for giving legal rights to animals, trees and rivers. Which countries have already adopted this law and how has it panned out for them? Is the threat of a lawsuit the only way we can save our planet?
A recent report by the Law Society, the professional body for solicitors in England and Wales, looks into the question of how humans can be better ancestors to future generations of all species and what that would mean for legal ethics. Their answer: granting legal rights and protections to non-human entities such as animals, trees and rivers is essential if countries are to tackle climate breakdown and biodiversity loss.
Dr Wendy Schultz and Dr Trish O’Flynn, co-authors of the report 'Law in the Emerging Bio Age', say that the law profession needs to adapt if it wants to be fit for the future. This means not only looking into the legal ramifications of lab-grown brain tissue, clones and babies growing outside the womb, but also making sure the law protects the environment in a way that gives our children a decent planet to live on. They argue that widespread adaptation of rights for nonhumans allows for a greater role for nature in our decision-making and shows that we are dependent on it for our survival.
However, the idea of giving legal rights to nonhumans is not a new one. The theory of giving rights to nature was proposed in the 1970s by the American legal scholar Christopher D. Stone as a way to allow the environment itself to sue an entity over any violation. But it wasn’t until 2006, when Tamaqua Borough in Pennsylvania became the first US community to recognise the rights of nature within municipal territory, that this theory became reality.
Since then, Ecuador and Bolivia have already enshrined rights for the natural world. In 2017, New Zealand became the first country to give one river legal personhood, followed by India the same year, when it granted legal rights to its sacred Ganges and Yamuna rivers. In 2019, Bangladesh went a step further and gave all of its rivers the same legal status as humans.
Each country and community has had its own reason for granting personhood to nature and the results have been equally mixed. Extractive industries in both Ecuador and Bolivia continue to expand into indigenous territory to pursue oil and mining, even though an NGO successfully argued for the right of nature but didn’t have enough money to sue again when the construction company refused to comply with the court ruling. Bangladesh too ran into trouble with its law because many of its rivers flow into neighbouring India and, since the law doesn’t apply there, Bangladesh cannot force it to comply.
There is also the issue of who gets to represent nature in court. Who are the guardians of nature? New Zealand seems to have figured it out. By recognising its Whanganui River as a Maori ancestor, granting it two guardians who act on behalf of the river, it has ensured that the river will always have someone representing its interests. Recently, when the local government wanted to build a bike path along the river, it had to get clearance from the river guardians.
But making indigenous groups guardians of nature may not work in every situation. For one, not all indigenous groups in the world inherently care for nature. But, even if they did, where will they get the finances and the power to fight for nature in courts where most indigenous communities are already fighting for human rights?
Nevertheless, the debate around giving right to nature is raising questions that we must ask. How can legal structures support second chances at improving human relations with living systems and our planet? If we are pushing for a change in our economic systems to protect our planet, how can we push for similar changes in our legal systems? If we don’t want our economy to be money-centric, should we not want our laws to be so human-centric too?
Until next time, take care and stay safe!
Hira - Editor - The Global Tiller
Dig Deeper
Another legal move that could do some course correction for our planet would be the successful inclusion of ‘ecocide’ to the list of crimes in the International Criminal Court. Find out how activists are nearing this goal:
…and now what?
Today’s theme brings me back to my old turf: law. A framework of rules and systems that allows our societies to work properly, as we’re told when we start law school. Very often, the legal world is seen as rigid, a place where everything is put in a box. Because that’s what it actually does.
But even the law sometimes needs to bend to nature. That’s what lawyers call “legal fictions” (to distinguish from the intrinsic fictional nature of any kind of law). A famous one under the French law is that a soon-to-be-born foetus can be considered a human being if it goes in its own future interest, but only when it comes to inheritance. In all other cases, the foetus has no personhood.
This kind of legal fiction created an interesting paradox in the US when a pregnant woman challenged the fine for driving in a carpool lane, insisting that she was not alone as the Texas criminal law recognises the foetus as a person.
The point is that, eventually, law is just a tool, invented by humans as a way to manage our daily lives, our very human problems within our society. So laws by nature are fictional, not rigid in time and are bound to evolve to adapt to how societies evolve.
It could then make sense, if our societies decide, to consider parts of nature similar (or equal) to humans if it eventually is in the interest of nature (and, in the end, beneficial for humans in the long run). The debate here should only be technical.
But I’ve heard people, as well as legal scholars, fight those ideas. They consider law as a matter of fact, made for and by humans. That it doesn’t make sense to apply those tools to beings or places that are not human.
One can also argue that our current legal tools are not even capable of protecting all humans, so what good would it be to use them to protect nature? Laws are as powerful as our will to respect them. There are way too many examples of existing legal tools that could have prevented major pollutions, major cannibalistic profits by shareholders, so on and so forth. We could have prevented climate change had we chosen to with the tools already existing. So will nature be helped if our laws are applied to it with the same status as for humans?
Given our options, we need to try new ideas and new solutions to convince people, to find loopholes or impacts that would finally provide the expected outcome. So overall, creating personhood for the things of nature is worth a try. It has worked some times.
But maybe we should push our thinking even further. As I said at the beginning, laws are rules and systems that allows our societies to work properly. For too long, we have distinguished humans and nature. We know now that humans are fully a part of nature and that our actions, decisions and societies do impact and are intertwined with nature. So it’s due time we design our rules and laws according to this reality: we are a part of nature and, for our societies to work properly, we need to regulate and organise our way of living by including all things natural: humans, cultures, animals, forests and the likes.
So not only we should think about extending current legal tools to natural elements, we should actually rethink our legal system to include nature as a whole of which we are a part. And consider that the foundational legal principles of our societies (such as our Bill of Rights or the Declaration of the Rights of Man and Citizen) should be written from a broader perspective.
And maybe, at the end, the famous hierarchy of norms designed by Hans Kelsen, the Austrian legal scholar, will put at the top of the pyramid not our constitutions or international treaties, but the laws of nature, those that cannot be bent except at the cost of our survival.
Philippe - Founder & CEO - Pacific Ventury