«Water is life: for us, for the planet and for itself»

A river is a habitat. Undisputed. But is a river also a living being? Just as millions of microbes, bacteria etc. live in and on humans, fish, crustaceans, plants etc. live in a river. And just as a person can become ill, rivers can become ill if we pollute them. And a river can also die. Is a river therefore also a personality with a life and rights like a human being?

by Roland Brunner, Blue Community Zurich

The debate about the legal personality of rivers has gained momentum in recent years. The aim of environmental movements that speak out and are committed to defining rivers as legal entities is to protect them from exploitation and - as with humans - to guarantee their integrity. Erin O'Donnell tackled this issue years ago. Here is a review of her book «Legal Rights for Rivers - Competition, Collaboration and Water Governance», which was published by Routledge in 2018 in the series «Earthscan Studies in Water Resource Management».*

Rivers are living organisms

Erin O'Donnell is an expert in water law and policy with more than two decades of experience. And she is a member of the Blue Community Switzerland network, where she writes: «Rivers are living beings with whom we are all in a relationship of mutual interdependence and reciprocity. The sooner we stop dominating and exploiting all waterways, the sooner we can embrace a truly legitimate and sustainable way of life. Water is life: for us, for the planet, and for itself.»

Over 200 pages, in eight chapters and with several graphics, O'Donnell explains how she comes to this conclusion - and where the horses' feet are. O'Donnell asks: «When rivers are legally

people, does that encourage collaboration and partnership between humans and

rivers, or establish rivers as another competitor for scarce resources?» She speaks of an «unexpected paradox»: « giving legal rights to nature may increase its legal power, but in doing so it can weaken community support for protecting the environment in the first place. » If rivers or nature are legal entities, then their rights are also in competition with the rights of other actors. Nature is therefore no longer the basis of all human existence above other needs and rights, but is exposed to a conflict of interest in the legal system and on the market with other legal entities such as corporations etc.

The experiences from the USA and Australia, which O'Donnell processes, serve as examples to evaluate the effects of the creation of legal rights for rivers on water policy. The initial lessons from the new «river people» show how law can be used to improve river protection and how the problems of the paradox can be mitigated.

In the beginning was Bolivia

The book begins with Aotearoa New Zealand's decision in 2017 to recognize the Whanganui River and its tributaries as a legal entity. A few days later, the Supreme Court of the Indian state of Uttarakhand ruled that the Ganga (Ganges) and Yamuna rivers are legal persons with the status of legal minors. Shortly thereafter, the same court granted legal personality to all natural objects in the state of Uttarakhand. And in May, the Constitutional Court of Colombia recognized the «biocultural» rights of the Río Atrato, granting legal rights to the river itself. Bolivia led the way back in 2010 with a law on Mother Earth that fundamentally changed the legal status of rivers.

When rivers are granted legal rights, this means that the law can consider rivers to be legal entities. This creates new legal rights that can be enforced. As O'Donnell writes in the foreword back in 2018: «Globally, the concept of legal rights for nature is becoming part of mainstream environmental law. There is a growing belief that it offers a powerful new approach to environmental protection and an opportunity to transform radically the relationship between people and the environment.»

And indeed, since the book was published at the end of 2018, more rivers have become legal subjects: the Turag and all other rivers in Bangladesh in 2019 and the Mutehekau Shipu/Magpie River in Canada in 2020 (Erin O'Donnell, Repairing our relationship with rivers: water law and legal personhood, 2023). In June 2020, 600,000 Spaniards signed a referendum to recognize the Mar Menor saltwater lagoon north of Cartagena in the Region of Murcia as a legal entity. At the beginning of April 2022, the Spanish parliament passed a corresponding bill, which the Spanish Senate approved in September 2022. In 2023, the Representative Committee was constituted, consisting of three representatives of the central government, three representatives of the regional government and seven representatives of civil society. There is also a monitoring commission made up of representatives from the municipalities on the Mar Menor and a scientific committee. They can take legal action and act as defenders of the Mar Menor and its interests wherever necessary. (Source: Wikipedia)

Inconsistent legislation and unanswered questions

What sounds like a uniform process, in reality is a variety of legal forms, legal regulations, legal interpretations... According to O'Donnell, this creates learning opportunities, but also uncertainty in the legal approach. O'Donnell talks about how «Environmental Water Managers, or EWMs», i.e. organizations responsible for managing water, use these rights in their fight for nature and rivers. She describes and explains various approaches, their scope and their contradictions.

Chapter 8 is explicitly entitled «Legal rights for rivers. A cause for celebration or concern?» The concern that O'Donnell formulates is basically this: If a river is not just a legal object, but a legal subject with the same rights as all other legal entities, then yes, the river should be able to exercise and represent its own rights. «This narrative relies on the private interest origins of regulation: that regulation emerges as a result of competing individual interests.» (Table page 187) At best, this weakens the idea that we humans are responsible for nature and rivers and that we must protect them.

According to O'Donnell, the decisive factor is whether and how the rights of nature are linked to social and cultural values and the people who live there, and how these people understand and defend the rights of nature. «Where these rights have been embedded within strong cultural frameworks, they appear more likely to create a collaborative approach to river management and water governance. (...) Without appropriate measures to connect people and place, and strengthen cultural values, new legal rights for rivers can easily backfire, leading to legal reform that weakens river protections once again. Ultimately, policymakers need to be clear on the role that the new legal persons will play in water governance." (Conclusions, p. 195)

A book for...?

Who is this book for? It should be required reading for lawyers who deal with environmental law. But it is also worth reading for anyone interested in conceptual considerations on how environmental protection can be rethought and practiced. It is doubtful whether the legal body for rivers and nature in general is the last word in wisdom. But it is certainly inspiring and, in specific cases, helpful in the fight against environmental destruction.

Comment from Maude Barlow

You ask the right question, that is how will these local initiatives to protect rivers stand up in court?

That is still an unknown. Unlike other environmental protections that start with lobbying governments to bring in certain laws to protect nature, the rights of nature /rights of rivers is from the ground up, grass roots and community initiated and untested. We in Canada are excited about it because it is Indigenous people who are leading this campaign and they have very clear rights to protect the natural resources in their territory built into the UN Declaration on the Rights of Indigenous People, which Canada has ratified. So, I see in the future, this coming to the Supreme Court wrapped in the question of First Nations rights.

I find it very exciting!


*Legal Rights for Rivers. Competition, Collaboration and Water Governance. By Erin O'Donnell. 212 pages. Published in November 2028 by Routleldge in the series "Earthscan Studies in Water Resource Management". ISBN 9781138603257.

Erin O'Donnell is a Senior Fellow and Lecturer at the University of Melbourne Law School, Australia. She is also an independent consultant on water markets for the World Bank and has worked on water policy in the public and private sectors for more than 15 years. In her work, O'Donnell focuses on indigenous water rights, water justice, legal rights to rivers and water markets.



Recent publications by Erin O'Donnell: