The Path to Legal Personhood for Rivers

The Rights of Nature Framework poses the idea that aspects of our ecosystem, such as rivers and forests, are entitled to certain fundamental rights in the same way as humans.[1] The Rights of Rivers organization has suggested to government officials across the globe to adopt the Universal Declaration on the Rights of Rivers, which guarantees rivers a number of fundamental rights: (1) the right to flow; (2) the right to exercise essential functions within its ecosystem; (3) the right to be free from pollution; (4) the right to feed and be fed by sustainable aquifers; (5) the right to native biodiversity; and several others.[2] Perhaps most important is the recognition of constitutional standing for rivers, which would give natural entities the ability to seek some form of damages for injuries caused by humans. While this is a broad declaration, it is not only non-profit organizations that are beginning to recognize the importance of a healthy, eco-centric relationship between humans and the natural world.

For example, the Inter-American Court of Rights in an advisory opinion stated, “[t]his court considers it important to [recognize] that the right to a healthy environment [i]s an autonomous right, and unlike other rights, it protects the components of the environment, such as forests, rivers, seas, and others, as legal interests in themselves, even in the absence of certainty or evidence about the risk to individual persons.”[3] Additionally, several countries have already adopted aspects of this framework, such as Ecuador, Colombia, and New Zealand. [4] This international trend has the potential to fundamentally change the way people all over the world interact with and litigate about nature, and its making its way to the forefront through court interpretation of constitutional law, treatises with indigenous groups, and direct legislation.

In some cases, the fundamental rights of rivers can be implied to exist from the language of a nation’s constitution. Article 71 of the Constitution of Ecuador states that nature has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles.[5] The Constitution also states, “The State shall apply preventive and restrictive measures on activities that might lead to the extinction of species, the destruction of ecosystems, and the permanent alteration of natural cycles.”[6] When there is an environmental conflict, nature should prevail because the constitution imposes a duty on the court to protect the environment. [7] This was the case with the Vilcabamba River, when its representatives brought suit against road contractors who deposited construction debris upstream: nature prevailed.[8]

Like Ecuador, the Rights Of Nature Framework was first recognized by Colombia’s laws due to a court’s interpretation of the country’s constitution. In Center for Social Justice Studies, et al. v. Presidency of the Republic, et al., the Supreme Court of Colombia found that the disputed Atrato river was a legal entity, and entitled to protection, conservation, maintenance, and restoration by the State.[9] The court inferred this from the language of Articles 79 and 80 of the Constitution. Additionally, the court relied on the Principle of Precaution defined by the Declaration of Rio de Janeiro, which recommends taking preventative action when faced with uncertainty related to potentially damaging environmental effects.[10]

Other nations have granted rights to rivers through legislative acts. In New Zealand, for example, a treaty was signed between the government and the indigenous Maori iwi, recognizing the Whanganui river as a legal entity, entitled to legal standing.[11] Additionally, a law was passed to grant these same legal protections to the Te Urewera Forest in 2014.[12] The purpose of the act was to “establish and preserve in perpetuity a legal identity and protected status for Te Urewera for its intrinsic worth, its distinctive natural and cultural values, the integrity of those values, and for its national importance…”[13]

There is no doubt that rivers, lakes, and forests contain invaluable natural and cultural features, and nations around the world are beginning to recognize their duty to respect those features. The Rights of Nature framework is just one way of strengthening environmental protection movements. By granting legal standing to bodies of water, nature can effectively take to court those who disrespect the values that humans have assigned to them. As this legal movement sweeps across the Americas, environmental lawyers will be paying close attention to when they can make these arguments in their own jurisdictions.