It’s time to recognize the legal rights of rivers

Rivers are in peril. The veins and arteries of the planet have been clogged, impounded and polluted, much of their roles defined by and for human interests. According to a recent estimate of the connectivity status of 12 million kilometers of rivers on all continents except Antarctica, only 37% of rivers over 1000 kilometers remain free-flowing. For the rest, their ecosystem functions and services have been impacted to varying degrees by the creation of dams, dikes, etc. These hinder the exchanges of water, energy, matter and biota between the sections of a river, and exchanges with the landscape. Despite a series of environmental laws that exist globally, the damage to riparian ecosystems has continued unhindered.

One possible reason for the weakness of existing legal guarantees is that legal systems treat nature as property that can be exploited, thus creating a false human dogma about nature and undermining the interdependence shared by the two. Often an “environmental threshold” is put forward to operationalize these laws, thereby legalizing environmental damage to some extent and minimizing the net destruction of the natural world. In addition, regulatory mechanisms that ensure compliance with established protocols in developing countries such as India have remained weak. In such a scenario, the emerging environmental jurisprudence of granting legal “personality” to rivers differs from the long-established treatment of rivers as passive objects in need of protection. Instead, it actively empowers them so that they can actively participate in litigation to protect themselves!

Separate lanes, same intention

The earliest example of the recognition of legal rights dates back to the Sierra Club v. Morton (1972) in the United States of America. In this case, Supreme Court Justice William O. Douglas issued the famous dissenting opinion: “The concern of the contemporary public to protect the ecological balance of nature should lead to granting environmental objects the right to sue for their own preservation. ”

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Since then, freshwater sources like rivers, wetlands, aquifers, etc. appeared as the precursor in the claim of legal personality. Legislation has emerged through a wide variety of mechanisms and at different jurisdictional scales, ranging from a river basin specific treaty or region specific ordinance to a national constitutional law. In addition, there are two distinct avenues for operationalizing the rights-based framework. One requires the creation of a legal guardian to safeguard the interests of the river while the other requires the courts to enforce rights through the active participation of the community. Despite the divergence, the objective remains the same: to protect the river from degradation while adopting an eco-centered rather than anthropocentric approach and keeping the interest of the river at the heart.

Piecemeal approach, limited success

In the effort to confer legal rights, little attention has been paid to the connections that define river systems. Despite an iteration of the legislation from an ecocentric perspective, the legislation did not take into account the interactive paths between rivers and the surrounding landscape. Legal personality considerations have often been limited to visible channels, thus undermining the interconnected processes that nourish and support the various types of ecosystems along the river and in riparian areas.

For example, in the case of the Vilcabamba River in Ecuador, the local government allowed the dumping of rocks and excavation material into the river to widen the road and improve access to the “Valley of Longevity”. The court returned its verdict by invoking the rights of nature under article 71 of the Constitution by obliging the authority not to dump the rubble in the river. However, it also allowed the road to be widened, allowing the government to remove the trees that made up the riparian vegetation. Likewise, in the Ganges case in India, the court initially ignored the extent of legal personality to other related elements. It took another public interest litigation for the court to consolidate the legal personality of the river with that of all other natural objects, including its glaciers.

Going forward, it is important to realize that rivers are not only connected to the glaciers that feed them, but also to elements of an interconnected system such as floodplains, aquifers, riparian vegetation, watersheds, l ‘atmosphere and even the seas. Water acts as a conduit for the exchange of sediment, nutrients and biota, thus creating complex and dependent ecological processes. As such, four interactive paths exist: lateral (river-floodplain), longitudinal (across different river sections), vertical (surface water-groundwater interaction) and temporal (biocomplexity of river landscapes, created over time. ). Thus, the extent to which the law of the river can be established must be supported by scientific assessments. The concept of river connectivity and trade routes can be a first starting point.

Fix the ladder

Closely related to the discussion in the previous section, the attribution of legal personality to rivers only makes sense if the river system is treated as a whole. Limitations of laws in terms of territorial jurisdiction have meant that river systems have traditionally been reduced to manageable units. Institutions for their governance have followed suit. Along with the granting of legal rights, this also appears to be a critical bottleneck in the case of large rivers that cross provincial and international borders.

For example, in the historic judgments of the High Court of Uttarakhand (UHC) which extended legal personality to the Ganga, Yamuna, their tributaries and all other natural objects, the verdict was criticized when the government of Uttarakhand appealed to the Supreme Court of India. . In his appeal, government officials cited their inability to act since the regulation of interstate rivers is guided by the Union government and the state government has no role to play. In fact, the Ganges and its tributaries do not only cross state borders, but also international borders!

Thus, reducing the river to manageable sections in accordance with the territorial jurisdictions of the law, as has been the unintended but inevitable consequence of various verdicts, is reductionist and directly conflicts with the founding principles of the ecocentric approach to development. laws. At the same time, basin-level legislations for large rivers are a long way off when riparian nations do not even have cooperation mechanisms and institutions for integrated basin-level management. Perhaps global conventions could be a possible way to overcome this obstacle.

As a first step towards this, a coalition of relevant stakeholders has identified six core values ​​that describe fundamental rights and serve as a legislative starting point for governments keen to seek legal recognition of the rights of rivers. Popularly known as the Universal Declaration of Fluvial Rights, these are –

1. The right to move.

2. The right to perform essential functions within its ecosystem.

3. The right to be free from pollution.

4. The right to be nourished and to be supplied by sustainable aquifers.

5. The right to native biodiversity.

6. The right to restoration.

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Support the movement

The jurisprudence of Earth as a philosophy and practice of law and governance attempts to reverse the popular approach of seeing nature as an object of law by a subject of law. This would require establishing a reciprocal relationship between the river and humans so that humans continue to derive benefits that do not cause irreversible damage to the flow of the river, to the flora and fauna dependent on its environment. flow and the various elements of the landscape it crosses. Essentially, this would result in the abandonment of the current benefits that humans derive from rivers through the construction of dams, dikes, water diversions, etc.

Therefore, the larger question that arises from this discussion is whether human society is even ready for such a transition. Since the dawn of the industrial age, human societies have sought to shape nature according to their interests. Water scarcity and abundance, two challenges on the path to neoclassical growth, were overcome through the use of hydraulic flow control. A reversal of this long-standing human culture would require much more than legislation that gives legal rights to rivers. For this rights-based framework to be more than just a step backwards with symbolic results, it must be synchronized with ideas such as sustainability and nature-based solutions.

The incredible and truly transformative potential of conferring legal rights on rivers would not be realized if verdicts are rendered recklessly and laws reveal ambiguities. Caution must be exercised to avoid juxtaposing rivers for humans and to defend rights that are akin to human rights. Most importantly, the constant growth of scholarship must keep pace with increasing activism for the movement to be anchored on firm ground while gaining the punch necessary to leave lasting impact.

This article first appeared on ORF.

The author is a Junior Fellow at the ORF center in Kolkata. The opinions expressed in this article are those of the author and do not represent the position of this publication.

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