FB LIVE RECORDING I The special forum: Can the Mekong and its tributaries have “legal rights”?

The overview by Professor Emeritus Dr. Philip Hirsch of University of Sydney’s School of Geosciences

“First, please note that I am a geographer by training, not a lawyer, so this short presentation is a set of notes from someone with an intense interest in rivers – especially the Mekong and its tributaries – and their interconnectedness with people, communities, cultures, societies and political systems, but not with any special expertise in law!

“The idea that a natural phenomenon has legal rights is both ancient and recent. Totemic systems in many cultures do not make the distinction between the human and non-human worlds that we tend to do in modern societies and legal systems. But at the same time, it is quite a recent idea to consider that something like a river can have “rights” in the same way that individual human beings, or human entities – such as communities or corporations – do. Nevertheless, the idea of “environmental personhood” is gaining traction.

“Recognition of legal rights for rivers started in New Zealand, where the Whanganui River was granted personhood in 2017 following a Maori challenge. In the same year, Indigenous advocacy recognized the Yarra River in the Australian state of Victoria as a living entity, and similarly the indigenous Innu people of Quebec, Canada managed to secure for the Magpie River nine rights including right to flow, right not to be polluted and right to sue.

“In Bangladesh in 2019, a law was passed that gave rivers the same rights as humans, and it entrusted protection of those rights in a new government-appointed National River Conservation Commission – a move that raised concerns of advocacy groups that this might lead to large-scale evictions of riverside communities deemed to be damaging the rivers. One key issue raised here is that of guardianship – in whose hands are legal rights of representation entrusted? Clearly, there are all sorts of complications and implications.

“What are some of the implications of legal rights for rivers? Presumably, it means that certain activities that threaten the health – or even the life – of rivers would become more restricted. Rights are a form of protection. While rivers themselves might not be able to “sue”, in other words take culprits to court, others (those considered guardians) may be able to do so on their behalf.

“Who or what, then, represents the river in a legal sense? What determines what specific rights rivers have and what constitutes an infringement of such rights? Damming a river such as the Mekong might be an obvious example, but what about farmers whose pesticide use damages the river’s ecological health?

“A huge difficulty in acting on legal rights to rivers is identifying the culprits who infringe those rights, especially when rivers are under attack from so many different activities, places and scales of impact.

“In an international river system such as the Mekong, what legal regime would be drawn on to grant and protect such rights? Only one of the six riparian countries – Vietnam – is a signatory to the most significant international legal instrument, the United Nations Watercourses Convention, and the 1995 Mekong Agreement provides no obvious legal recourse even to existing practices.

“This means that, if legal rights to rivers are to be advocated, it would probably make sense to start with tributaries that lie within single countries, at least in the first instance. The Chi and Mun systems would seem to be obvious candidates, although past activities and associated impacts might not be covered. Who would be the guardians of these rivers?

“A further issue on recognizing rivers as juristic entities is whether they can themselves in turn be sued if they cause damage, for example through flood events.

“Ultimately, perhaps the most significant value in recognizing rights to rivers in the Mekong system is symbolic rather than a realistically enforceable legal option. But who knows… I look forward to hearing the views of others at this meeting who have long been advocating for the river and those who depend most intimately on its well-being.”