By Darlene Lee
A Legal Movement to Save Our Planet
Laws safeguarding the environment have not kept apace with rapidly expanding human activity. Earth has lost more than half its trees since humans first learned to wield an axe. According to the WWF, roughly one-quarter of coral reefs worldwide are considered damaged beyond repair, with another two-thirds under serious threat. The good news is that a solution has appeared, in the form of Earth Law.
Earth Law is the growing body of law recognizing that the Earth has inherent rights, and that humans and nature are co-members of a larger Earth Community whose well-being is guaranteed. Rather than treating nature as “property” for human consumption, Earth Law recognizes that nature is an entity with its own rights. Nature's rights are not “given” by humans, but rather are inherent to nature’s existence – just as humans possess inherent rights to life, liberty and the pursuit of happiness.
In the 1970s in the United States, legal scholar Christopher Stone first proposed a well thought out argument on how to give rights to nature. It took a while, but in 2006, Tamaqua Borough in Pennsylvania became the first US community to recognize the rights of nature within municipal territory. Since then dozens of communities have adopted similar local ordinances, including Santa Monica in 2013 – the first West Coast city to adopt a rights of nature law.
Globally, Ecuador became the first nation to amend its constitution to include rights of nature in 2008. In 2012, Bolivia passed the first of two national rights of nature laws, and Mexico City followed in 2017 by including rights of nature within its new constitution. Rights of nature has already won in the courts, too, beginning with a 2011 case in which Ecuador’s Provincial Court of Loja ruled in favor of nature (calling for restoration of the Vilcabamba River, which was harmed by a road-widening project).
Rivers Win Rights in 2017
This year four rivers gained legal rights recognition. New Zealand’s Parliament formally enacted a treaty in March that recognized the Whanganui as a legal person with fundamental rights, including the right to sue. This made it the first river in the world to gain recognized legal rights. Just five days later, the Uttarakhand High Court in India recognized two rivers (the Ganga and Yamuna) as “living entities” with fundamental rights, also allowing designated humans to represent the rivers in court and file complaints on the rivers’ behalf. And most recently, in May 2017, Colombia’s Constitutional Court granted rights to the Atrato River and ordered the government to clean up its waters.
In each of the instances where the rights of rivers were recognized, a dedicated and passionate local group worked with government officials and judges to achieve the positive outcome. In the case of the Whanganui, the question was less about environmental sustainability and more about spiritual and cultural values. “The reason we have taken this approach is because we consider the river an ancestor and always have,” said Gerrard Albert, the lead negotiator for the Whanganui iwi [tribe]. “We have fought to find an approximation in law so that all others can understand that from our perspective treating the river as a living entity is the correct way to approach it, as an indivisible whole, instead of the traditional model for the last 100 years of treating it from a perspective of ownership and management.”
The Whanganui decision also set an important precedent by addressing critical questions of restoration, with a NZ$30 million budget towards improving the river’s health included in the settlement. This will serve as an important model for future legislation since adequate funding to implement nature’s rights is a necessity.
With the Te Awa Tupa Bill setting the stage, two court rulings soon followed that established legal rights for additional rivers. In India, in addition to recognizing the essential protections for rivers arising from recognition of its rights, the case also arose from the traditional Hindu view that regards the universe as a manifestation of the divine. This means that rivers, plants, animals and even the Earth are considered sentient divinities with particular forms, qualities and characteristics.
The second court ruling was in Colombia, where the Colombian Constitutional Court addressed the severe pollution of the Atrato River, located on the country’s northwest coast. This case was brought to the court’s attention thank to the efforts of Colombian NGO Tierra Digna, Afro-Colombian organizations and other indigenous groups, who highlighted extensive negative health impacts both to riverine communities and the aquatic ecosystem itself.
In a major victory for waterways in the Americas, the Court found that the Atrato River is “subject to the rights that implicate its protection, conservation, maintenance and in this specific case, restoration.” The suit also specifically called out the state for its neglectful behavior and ordered that the river be restored to health.
“[T]he human species is only one more event within a long evolutionary chain that has lasted for billions of years and we [humans] therefore, in no way, are the owner of other species, biodiversity or natural resources, or the fate of the planet,” stated the Court, “Consequently, this theory conceives nature as a true subject of rights that must be recognized by states and exercised under the tutelage of their legal representatives, for example, by the communities that inhabit it or have a special relationship with it.”
Universal Declaration of River Rights
ELC has been working to integrate these global victories for river rights, as well as ecological principles of river health, into a common set of rights that are universal for all rivers. Working with river and nature’s rights experts from across the globe, ELC drafted a Universal Declaration of the Rights of Rivers (“Declaration”), which defines the minimum fundamental rights to which all rivers are entitled. These fundamental rights include:
(1) The right to flow,
(2) The right to perform 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
(6) The right to restoration.
Recognizing that rivers are part of a larger system, the Declaration asserts that these rights are also intended to ensure “the health of the river basins of which rivers are a part.” Additionally, it calls for appointment of one or more legal guardians to act on behalf of rivers’ rights, with at least one such guardian being an indigenous representative for those rivers upon which indigenous communities depend.
ELC believes that these key provisions, amongst the others included in the Declaration, will set a standard for establishing rights for rivers that can be drawn on by governments across the globe, much like the Universal Declaration of Human Rights and the Universal Declaration of the Rights of Mother Earth. And more broadly, implementing these rights will mean that society can begin to protect rivers for reasons aside from their utility to humans, to the mutual benefit of us all.
While setting a positive vision for the future, the Declaration also recognizes the devastation faced by rivers and river basins worldwide – such as the 57,000 dams choking and drying two-thirds of all major rivers – and pays tribute to those rivers that have already died due to human activities, including “those so over-diverted as to no longer flow, those enclosed within pipes and buried under layers of concrete, and those so polluted as to no longer sustain life.” In recognizing these tragedies and defining a new rights-based path forward, we hope to protect other rivers from similar fates.
Parallel to its Universal Declaration of River Rights, ELC is launching several related initiatives, including working with local partners to secure legal rights for three rivers in Mexico, starting with the Magdalena River in Mexico City. The Magdalena River is Mexico City’s last and only free-flowing river. This is only astounding against the context that Mexico City once had 45 living rivers – now confined to underground pipes and buried under concrete.
To understand what happened to the other rivers, and why the Magdalena River needs recognition of its fundamental rights, it’s important to briefly review history. Almost 700 years ago, the Aztecs founded the city-state of Tenochtitlan in the middle of Lake Texcoco. Here they created effective civil engineering works – including both causeways and aqueducts connecting their island capital to the mainland, as well as lengthy dikes separating the fresh water lakes from the brackish Lake Texcoco, which surrounded the city. The Spaniards, however, let those works fall into ruin while deforesting the surrounding hillsides and filling Lake Texcoco. This contributed to major flooding in 1555, 1580, and 1604. The city was actually underwater (continuously!) from 1629 to 1634.
After several unsuccessful flood control efforts, they started building a massive canal in 1788, which provided some flood relief but did not solve the problem. Although a major engineering feat and symbol of civic pride, part of the reason the 29-mile-long Grand Canal didn’t work is because it was based on gravity. And Mexico City, a mile-and-a-half above sea level, was sinking. Home to 21 million people, who together consume nearly 287 billion gallons of water each year, the city has sunk more than 32 feet in the last 60 years because 70 percent of the city’s water is extracted from its underlying aquifer. Mexico City continues to sink at a rate of 3 feet per year.
Which brings us back to the Magdalena River. While for hundreds of years Mexico (and all other nations) have tried to engineer and control its waterways, these efforts have failed to fulfill their goals of thriving communities. Instead, human and natural communities suffer from water pollution, reduced flows and other negative impacts. We must instead return to our roots and begin to live in harmony with our rivers, restoring them to health. Establishing rights for Mexico’s rivers – including those rights contained within the Universal Declaration of River Rights – is the first step to doing so.
(Click here to read more about our efforts to establish legal rights for the Magdalena River and two other waterways in Mexico, the Atoyac and San Pedro Mezquital.)
Join the Movement
We need your help to secure rights for all rivers worldwide! Here is how you can help today:
1. Donate to ELC
2. Volunteer with ELC
3. Contact ELC if you want to work on your own river rights campaign
4. Have your organization sign the Declaration of River Rights document
Update: Please also consider donating to earthquake recovery efforts in Mexico, where ELC’s partners are fighting for the rights of nature and many other social causes.
 Flows must, at minimum, be sufficient to maintain the ecosystem health of the entire river system. In addition, rivers – not people – own the water that flows within them.
 These include flooding, moving and depositing sediment, recharging groundwater, providing adequate habitat for native flora and fauna, and other essential functions.