by Nicolas de Toledo*
-Humans have long treated nature as little more than an exploitable resource - and we are now living with the consequences.
-Granting legal personhood to things like forests, rivers and species could give them the best chance of survival and renewal.
-To achieve this, we must first learn to listen to - and understand - the language of nature itself.
The warnings from scientists are not sufficient anymore. In light of the dramatic biodiversity losses we have suffered over the past few decades, we urgently need to hear the voices of nature itself. Today, elements of nature such as oceans, forests, soils and ecosystems are considered, in most jurisdictions, as mere objects - and are treated as such. What if the elements of nature became, per se, legal persons?
Long regarded as deities, the elements of nature have been at the centre of cults and rituals since time immemorial. It was with the agricultural revolution - the domestication of cattle, rivers and plants - that the separation between human beings and their environment began. The division deepened with nature’s commodification, a consequence of the growth of commerce and demand for natural products such as spices and silk. The progress of science elevated human beings to the rank of observers, from where they began to analyze, understand and ultimately master their environment. From our divine perch, the elements of nature became nothing more than usable and disposable objects, subject to the sole discretion of their ’owner’. Indeed, we get wood from lumberjacks, not forests, and fish from fishermen, not from the ocean. This anthropocentric relationship between humans and nature has reached its limits (see figure below) and the resulting environmental damage has become, according to the UN, the greatest threat to global security.
Justice is no shield
The elements of nature are not protected effectively by our jurisdictions or our governments. Let’s take an example from Christopher Stone’s 1972 article, Should Trees Have Standing?. A polluted water stream does not have the capacity to defend itself against its polluter. It relies on a plaintiff - for example, the riverbank’s owner - to take legal action, provided that the plaintiff has an interest and the means to do so. Should the court find in favour of the plaintiff, the compensation would be assessed based on the damages inflicted to the plaintiff, and not on the damage inflicted to the stream and its ecosystem. Finally, the plaintiffs are the only ones who are compensated; neither the river nor its fish, soil or ecosystem will benefit from the whole process. This needs to change.
The ascent - from legal object to legal person
The law defines a legal person as a human or non-human entity that has legal rights and is subject to obligations. Moreover, a legal person may sue and be sued under its own name. Nowadays, all human beings are considered as legal persons. But there was a time when slaves were legally regarded as objects, without legal capacity. Today, companies are qualified as legal persons too, entitled to take legal action against an individual or another legal person. That change only took place in the late 19th century - and yet, this legal innovation laid the foundation for shareholder capitalism to thrive throughout the 20th century.
More recently, other ’entities’ have been granted legal capacity, such as the chimpanzee Cecilia in Argentina and the Whanganui river in New Zealand. Next could be the robot Sophia, the Costa Rican bees, plants and trees, or Lake Erie in the United States. But granting legal capacity to an entity does not necessarily mean that it would have the same rights that humans enjoy.
Recently I interviewed the French writer, artist and jurist (and distant cousin of mine) Camille de Toledo, who, together with a committee, is working to create an assembly capable of offering legal representation for France’s longest river, the Loire.
"Law should be a tool to build a better equilibrium between humans and the elements of nature, in order to transfer more rights to those ecosystems which were deprived of rights for centuries," de Toledo says. "A legal person could only have rights but no obligations, or vice versa. For example, the elements of nature, as legal persons, could have the right to their ecological wellbeing, their biodiversity: for example, the right of a forest to conserve its biomass; the right of an ocean to be clean and plastic-free; the right of bees not to die from industrial pesticides."
Looking back at the example of the polluted stream, if the stream were to be granted legal capacity, it could defend its interests and its rights. Should those rights be disregarded, the stream could take legal action in its own name, and would receive compensation based on the damage it incurred, which could then be used to restore its ecosystem.
Emerging bio-economic stakeholders
The Davos 2020 manifesto advocates for a reorientation towards “stakeholder capitalism”. Companies, which were granted legal capacity not so long ago, are today involved alongside states and civil society in many initiatives with a significant social and environmental impact. The long-term benefits of acquiring legal capacity are thus not limited to the mere allocation of new rights; it is much more of an emancipation, an accession to the status of active and respected stakeholder.
Therefore, granting legal capacity to the elements of nature may also imply conceding oceans, forests and ecosystems’ representatives a seat alongside the world’s other decision-makers. After all, isn’t it their world too (human beings account for 0.01% of the Earth’s biomass)? It is interesting to note that granting legal capacity to the elements of nature would also imply the recognition of their material assets such as funds accumulated through compensation or through their commercial activities. These funds could be used, for example, to hire lawyers in the case of a polluted lake, or to employ beekeepers to supervise the sustainable exploitation of a bee colony. These same funds could also be invested in the restoration of a damaged sub-ecosystem or the expansion of an endangered forest, alongside existing NGOs. By recognizing ecosystems as key stakeholders and even essential economic actors, this model would give them a chance to survive.
The governance of nature
In order to communicate with natural ecosystems, we must first understand the language they speak. Only then will we be able to think about representing them through legal guardians, boards or assemblies. This new approach obviously raises challenges and questions of a legal and ontological nature, questions that Camille de Toledo’s committee tries to answer by consulting - among others - jurists, philosophers, landscapers and researchers. This assembly – which would bring together all of Loire’s stakeholders (residents, researchers, anglers, plants, soils, water and fishes, for example) – will be the voice of the Loire.
At the end of the day, listening to the voice of nature and learning her language is probably the greatest challenge that we humans have ever faced. If we fail to do so, it could be the last we will face, too. In the words of de Toledo: "Making natural entities legal actors in the Anthropocene era would eventually retransfer rights, powers, and even financial levels to those from which the rights of humans derive, namely the Earth itself and all its non-human components."
*Global Shaper, Shanghai II Hub
**first published in: www.weforum.org