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Legal Rights of Rivers- Practice and Importance

Introduction

A crane was standing on a floating branch, waiting for a fish. At a distance, some fishermen were quietly drawing their nets. As we were moving upstream, we encountered village people bathing and washing clothes in the river Ganga near West Bengal, where most people’s daily lives are at ease as they depend on the river. But amid this serene and calm environment awaits the harsh reality of industrialization and polluting the river. Unfiltered chemical waste flowing directly to the river, hydroelectric dams interrupting the river’s natural flow, and river interlinking plan to reshape the riverine ecology are some of the most common issues most rivers face around the globe.

According to a report by IPCC, the scale of recent changes by humans across the climate system as a whole are unprecedented over many centuries to many thousands of years. According to the latest report by the Central Pollution Control Board of India, there are 45 critically polluted and over 300 polluted rivers and water bodies in India

Building dams or hydropower plants are another way of harming the rivers. No doubt dams are built to help civilization grow and prosper. But excessive damming obstructs the river’s natural flow and affects its ecology.

For example, a study in 2018 on the Mekong River in Asia shows that fish stock has reduced to 40% due to a dam built on it. We believe that every drop of water flowing into the ocean is wasted; thus, we try everything to redirect the water and use all the water for us. But incidents of landslides, flash floods in the Himalayas, or droughts in the Northern states indicate the effects of large water-based power plants or projects.  We all know about the Etalin project in Arunachala Pradesh, where a 3,097-megawatt (MW) hydroelectric project is proposed. Imagine if the Dibang River had the right to flow. Or the tributaries Tangon and Dri, where run-of-the-river projects are proposed, had the right to live just like humans? 

The Rights of Rivers

The right of rivers is a modern idea of recognizing the river’s value and giving them a chance to live and flourish just like humans. Some countries have recognized their river as legal persons, and some have directly given them the rights as a river.  The concept was first developed by the Earth Law Center in 2017, and they have incorporated the fundamental universal rights of the rivers in the Universal Declaration of River Rights. This declaration is documented based on practical experience of river rights worldwide and recognizes six minimum rights (para.3, UDRR, 2020) that every river possesses. The rights include, 

  1. right to flow, 
  2. right to perform essential functions within its ecosystem, 
  3. right to be free from pollution, 
  4. right to feed and be fed by sustainable aquifers, 
  5. right to native biodiversity, 
  6. right to regeneration and restoration.

The UDRR also recognizes the rights not only of the rivers but also of the river basin and the areas surrounding the rivers.

Do rivers need rights?

Should rivers have the same legal rights as humans? Do they even need legal rights? A growing number of voices say yes to this question. Giving or status of legal person to rivers in courts of law is a sign of change that we are thinking about our environment and climate change. Nature is not simply a property that we can exploit. Instead, the environment should be considered a subject and given legal personhood. Rivers come within this scope, and they should be given the status of a legal person. Despite having protective laws, rivers are suffering damage, and their condition is deteriorating. According to a 2019 policy report by the IWRA, by giving rivers equal legal rights as humans, we can better protect rivers and the surrounding environment. It gives the rivers a voice in the policy debates and helps to build a balanced ecosystem service.  Moreover, when a river is granted legal status, it becomes a legal entity of a country, and the government is bound to protect it from all evil and wrongdoing. More importantly, by giving a river legal status, it can protect itself from getting damaged or violated.

Rights of rivers in practice

The rights-based approach to protecting the rivers significantly improved in 2017 when four rivers worldwide were given legal rights. These attempts promoted the importance of environmental protection. Following the year, some other countries also gave their water bodies legal recognition. However, these rights so far have only been incorporated in national legislation. There are no mentions of it in international conventions or treaties. 

In many countries, the court of law has taken forward the legal doctrine to give the rivers legal entity, and very few countries have special legislation recognizing the rights. 

Ecuador, in 2008 recognized the constitutional right of mother earth and included a new chapter in its Constitution. Bolivia followed a similar path in 2010, passing Laws on the Rights of Mother Earth, giving nature a “legal person of public interest” recognition.

In 2017 New Zealand passed national legislation providing Lake Waikaremoana and Whanganui River legal personality. Same year Constitutional Court of Colombia granted the Atrato river legal rights

Another instance of judicial recognition was observed same year in India. The High Court of Uttarakhand recognized legal personhood to two rivers- Ganga and Yamuna. In 2019 the High Court of Bangladesh gave legal rights to the Turag River and all of its rivers. The Canadian government gave the most recent recognition to Magpie, also known as the Muteshekau-shipu River, in 2021.

Implementation of the rights

Implementing the rights given to the rivers is as important as giving them the rights. There is an increase in an attempt to give rivers a right to flow or other rights. But how we will implement the rights should also be clear. For example, the Magpie River in Canada has the right to flow, but how it will exercise the right is still being determined in any documentation. On the other hand, the Uttarakhand HC gave several government organizations and independent lawyers the custody of the river Ganga and Yamuna. In a follow-up order, the HC also included the Chief Secretary of the State of Uttarakhand and a maximum of seven public representatives. Similarly in Bangladesh, the National River Conservation Commission was declared “in loco parentis” for the rivers of the country. It is imperative to appoint an agency or entity as a legal guardian of these rivers. Similarly to a human baby or a disabled person, a river cannot implement its rights. So there should be clear and appropriate principles of guardianship or custodian. Awarding rivers legal rights is not enough there should be a proper mechanism to implement the rights on their behalf.

Concluding Remarks

The most condemnatory obstacle is protecting the river’s rights with the current development model. There is a basic contradiction between the extravagant development of industry and the rights of rivers or nature. Whenever there is a contradiction between growth development and conservation of the environment, in most cases, the latter is sacrificed. That is why countries should measure any planning with a potential threat to the environment effectively.

Secondly, rivers cannot be bound by political boundaries, nor can we force them to. For example, the Indus River follows through China, Pakistan, and India. All three countries must recognize their right to flow. Otherwise, a dam in China can affect the downstream in Pakistan and India. Just like in Farakka Barrage in India has heavily affected the natural flow of Ganga in Bangladesh. Therefore, the rights open up possible collaboration between neighboring countries that share the same rivers. And finally, environmentalists and nature communities have been promoting the need for cultural change that brings ethical care to the development and conservation of nature. Indigenous people around the world have views of living in harmony with nature. We should harmonize the ways of living with nature, not against it. Ultimately, as human beings dependent on rivers and as nature, we should respect nature not so much for its legal rights but because it is the humane and right thing to do.

Author(s) Name: Fardeen Bin Abdullah (University of Rajshahi, Rajshahi, Bangladesh)