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Rights of Rivers in a Changing Climate

In: Climate Law
Author:
Roanna McClelland PhD Candidate and Teaching Fellow, Melbourne Law School, University of Melbourne, Melbourne, Vic, Australia

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Abstract

Climate change presents a risk to drinking water, water supply for industry, energy, and agriculture, and to water-related ecosystems broadly. Parties to the unfccc focused attention on water issues in the 2022 Sharm el-Sheikh Implementation Plan of cop 27, recognizing the critical role of ‘protecting, conserving and restoring water systems and water-related ecosystems in delivering climate adaptation benefits and co-benefits’ and urging the integration of water considerations into adaptation efforts. At the same time, water norms are emerging around rivers and bodies of water, prompting a radical rethinking of the way we manage freshwater. This commentary examines an evolving transnational water norm – rights or personhood for rivers – and considers the limits and possibilities of this norm in a climate change context. Drawing on case law in domestic jurisdictions, it shows that recognizing the limits and possibilities of emerging transnational water norms is a crucial part of the climate-water nexus.

1 Introduction

The critical links between freshwater and climate change are increasingly a focus of climate change decision-making. While adaptation to climate change has long been recognized as necessitating planning for water resource management,1 the integration of water considerations into adaptation measures was mentioned in the Sharm el-Sheikh Implementation Plan following cop 27.2 The United Nations World Water Development Report 2023,3 released in March 2023, outlines a need for bi-directional coordination and understanding between climate decision-makers and water policymakers to integrate water considerations into mitigation and adaptation measures, and to integrate water-related climate risks into national water frameworks.4 The climate-water nexus – which is shorthand for the recognition of the co-constitutive relationship between water-based adaptation and mitigation action and climate goals – is now well recognized at the international level.5

As these efforts for bi-directional coordination are underway, several norms for managing water are developing outside the climate regime.6 Rivers are increasingly sites of legal contestation and protest, often driven by local actors, seeking more sustainable methods for managing water resources or an increased say in water-related decision making.7 Variously described as ‘“transnational” water norms’,8 ‘riverine rights’,9 or ‘national water justice movements’,10 these actions are often prompted by the perceived ineffectiveness of existing regulatory regimes for rivers, and are attempts to incorporate outside norms to shape or transcend those regimes.11 A growing number of these actions around the world have embraced evolving legal mechanisms such as granting rights or legal personhood to rivers (linked to global developments related to granting personhood to non-humans)12 to influence their management or protection. For example, in 2017 the Whanganui River of New Zealand was recognized as a living being (Te Awa Tupua) and a ‘legal person’ with associated rights, powers, duties, and liabilities.13 In this commentary, I use the term ‘transnational water norms’ when discussing the emergence and evolution of norms such as rights for rivers, in acknowledgment that these norms evolve through interactions between the local and international levels.14

I examine the emergence and use of transnational water norms and their potential for contributing to decision-making in a climate change context. Rights for rivers are not the only water norms evolving and shaping water law, but they are illustrative of the impact these norms can have on legal and institutional arrangements and the challenges and possibilities of coordinating the objectives of climate and water law. Where transnational water norms are used instrumentally to change the management of rivers by diverse actors around the globe – including ngos, community groups, and Indigenous or First Nations groups – they are often coupled with broad aspirations for using water law to adapt to or mitigate climate change impacts. But transnational water norms where they relate to rivers have specific legal and institutional implications that may sit in tension with the objectives of the climate law regime.

2 Climate Change and Freshwater

Climate change presents a risk to drinking water, water supply for industry, energy, and agriculture, and to water-related ecosystems. The ipcc refers to a study that found that with a 1°C rise in global mean temperature above the 1990 level, 8 per cent of the global population will suffer a severe reduction in water resources – rising to 14 per cent with a 2°C rise.15 Climate change is likely to cause more severe floods and droughts and increase the intensity of competition for water amongst sectors.16

Water and climate law regimes have historically developed and been negotiated differently.17 Their convergence is a more recent focus of academic and legal work. In water law, studies have focused on the risk climate change poses to water planning and allocation, and potential adaptation and management responses,18 leading to arguments that climate adaptation could potentially become a new transnational or global norm in the water sector.19 Within the climate law regime, measures relating to water were initially infrequent.20 Efforts to include water issues more explicitly in climate discussions increased since 2003,21 particularly as the potential impacts on drinking-water supply became better understood. In 2022, the Special Thematic Report on Climate Change and the Human Rights to Water and Sanitation was released, framed around the notion of a water crisis exacerbated by climate change, and highlighting the socio-economic impacts of climate change linked to freshwater.22 The State of the World’s Drinking Water report, released by the who, unicef, and the World Bank, notes that continued progress in achieving universal and equitable access to safe and affordable drinking water is at risk from a number of factors, including ‘by the ever-increasing impacts and uncertainty of climate change’.23 Around ten thousand participants came together for the UN 2023 Water Conference,24 to urgently refocus global attention on achieving Sustainable Development Goal 6 – On Clean Water and Sanitation. Launched ahead of the conference, the new edition of the UN World Water Development Report, published by unesco, cited a looming global water crisis as increased demand for water and the intensifying impacts of the climate crisis put pressure on water resources.25

The role of water and water-related ecosystems in adapting to climate change is now also better understood. The Sharm el-Sheikh Implementation Plan recognizes ‘the critical role of protecting, conserving and restoring water and water-related ecosystems in delivering climate adaptation benefits and co-benefits, while ensuring social and environmental safeguards’.26 The Implementation Plan also urges the parties to the Paris Agreement to further integrate water considerations into adaptation efforts.27

While water has been recognized as a ‘climate connector’ that will lead to collaboration and coordination mechanisms across targets in the Paris Agreement and the Sendai Framework,28 the UN World Water Development Report notes that ‘water governance adds a complexity layer to the effective implementation of climate-related water priorities’29 due to a proliferation of policy areas, decision-makers and stakeholders, decentralized water policymaking and sectoral fragmentation of water-related tasks, and conflicting objectives.30 The emergence of transnational water norms, such as rights for rivers, adds another layer of complexity.

3 Emerging Transnational Water Norms: Rights for Rivers

A growing awareness of the relationship between climate change and freshwater is not the only explanation for the emergence of transnational water norms,31 but it is an important factor. Internationally, water law is influenced by norms from a variety of fields such as human rights and the Sustainable Development Goals.32 This shapes water law at national and international scales,33 particularly around particular rivers and bodies of water.34

Norms and mechanisms focused on legal personality or personhood for rivers are linked to global legal developments and movements related to granting personhood or ‘rights’ to non-humans.35 Sometimes these developments are informed by Indigenous voices.36 Described as a ‘legal revolution’,37 a version of rights for nature exists in thirty countries,38 sharing ‘general normative beliefs regarding the intrinsic value of nature, the need for humans to see themselves as part of nature, and humans’ obligation to live in harmony with nature’.39 An increase in rights-of-nature claims relating to bodies of water may indicate an ‘emerging transnational idea that a river can be a person’.40

While some scholars have identified this shift as reflecting ‘emerging global meta-norms regarding humans’ relationship to (and obligations toward) Nature’,41 other scholars see these developments being driven from the local level:

These attempts are being pragmatically driven from the bottom up to the highest levels of the legislature or judiciary as local communities (and sometimes Indigenous Peoples) become increasingly frustrated with apathetic and complacent governmental responses to environmental challenges, using whatever legal tools and processes are available to them.42

Domestic cases have begun to reference climate threats alongside new approaches to rivers and freshwater bodies. In Colorado River Ecosystem v. State of Colorado,43 an ngo sought a declaration that the state of Colorado had violated rights including those of the river ‘to exist, flourish, regenerate, be restored, and naturally evolve’ and cited climate change as one of the threats faced by the river. The plaintiff subsequently filed an unopposed motion to dismiss, which noted that counsel for the plaintiff continued to believe that rights of nature provided courts ‘with a pragmatic and workable tool for addressing environmental degradation and the current issues facing the Colorado River’, but acknowledged the importance of ensuring that the right conditions were met for the courts ‘to consider the merits of a new canon’.44 In Argentina in 2020, ngos and a group of children filed a class action suit in the Argentinian Supreme Court – Asociación Civil por la Justicia Ambiental v. Province of Entre Ríos, et al. – alleging failure to protect the significant wetlands of the Parana Delta. The plaintiffs asked the court to declare the wetlands the subject of rights, and an essential ecosystem for mitigating and adapting to climate change. This case is still pending.

Underscoring these legal developments is a concern for climate change, alongside a desire for greater involvement in decision-making relating to freshwater. As climate change continues to have immediate and long-term freshwater effects, local actors may increasingly turn to transnational water norms in the hope of effecting change in the management or protection of rivers.

4 Limits and Possibilities of Transnational Water Norms in a Changing Climate

This section considers the use of rights for rivers and explores the limits and possibilities of these transnational water norms in a climate change context. The difficulty in implementing rights for rivers at the local level has been well-canvassed in the literature.45 Implementation and enforcement of rights-for-nature laws are variable,46 sometimes described as ‘radically ineffective’.47

4.1 Normative Goals and Their Environmental Context

A key implementation issue for transnational water norms, particularly those underpinned by the concept of ‘rights’, is the relationship between normative goals and their environmental context. A changing climate and a focus on specific ‘places’ such as a river or body of water may result in a disconnection between the environmental context and the aspirations for using transnational water norms. On the one hand, physical restraints, particularly climate-related changes to rivers, may impact on the ability of a local landscape to be receptive to the currently formulated rights for rivers. On the other hand, transnational water norms may themselves impose arbitrary boundaries on the physical landscape. The legal recognition of certain rivers and their immediate surrounds should be carefully considered in terms of what may be omitted from any resulting legal protections: place-based legislation or protection risks condoning development beyond those boundaries. For example, recognition of a particular river’s rights rather than a broader recognition of nature potentially risks further fragmentation (of regimes and relevant actors in water-related decision-making) and may undermine the interconnectedness aspired to in rights-for-nature norms.48

Place-based or domestic implementation of transnational water norms also risks overlooking the complexity of the climate-water nexus (or the water-food-energy-climate nexus). Water relates to many social and economic issues,49 and there is a need for integrated policies across sectors.50 It is unclear, for instance, how transnational water norms might impact on energy production,51 including with respect to greenhouse gas emissions from the use, storage, distribution, and treatment of water and wastewater.52 Emission-reduction measures, such as hydroelectricity generation, require a balancing of climate mitigation and water priorities53 that may sit in tension with ‘local realities’54 and the institutional form that rights for rivers might take. The global nature of the water cycle, through transboundary water flows but also global atmospheric water flows, may mean that issues arising from the climate-water nexus cannot be dealt with solely at the local level.55

Place-based or domestic implementation of transnational water norms is also limited when the impact of water scarcity on global migration is considered. It is estimated that, by 2030, water scarcity in some areas could displace up to 700 million people,56 demonstrating the need for a multi-scaled response to water scarcity and climate-related water impacts that might not align with legal action focused squarely on rivers.

4.2 Who (or What) Bears Risk

Transnational water norms require clarity around who (or what) bears risk. This is particularly relevant for the risk of climate change impacts. While rights for rivers have been read to broadly encompass both environmental and human considerations,57 and ecosystem protection should in theory lead to more secure drinking water resources in the long term, how this understanding may operate in practice during times of rapid water loss or a climate emergency (such as flooding or wildfires) has not been established. The perceived conflict between humans and the environment, with no clarity around the balancing of human or the environment’s needs in the face of a water crisis,58 may be a limitation of rights-for-rivers models.

Another troubling complication to the discussion around rights for rivers is the role they may themselves play in climate disasters. If models for legal personality or rights for rivers are pursued, could these rights-holders be responsible for harm? Who holds the risk for increased river peaks and flooding associated with climate emergencies, as well as impacts on water allocations, water use and access, and water sanitation and infrastructure? Following a decision of the High Court of the Indian State of Uttarakhan (Mohd. Salim v. State of Uttarakhand) to grant a form of legal personhood to the Ganges and Yamuna rivers, Uttarakhand suggested that governments or other parties may be held liable for damage to the river.59

Despite these concerns about balancing water needs for humans and the environment, there are numerous examples where community groups, ngos, peak bodies, and community campaigns60 draw on the human right to water (or similar anthropocentric rights-based approaches, such as the right to a healthy environment) and rights for rivers simultaneously. For example, in 2021 in Orange County, Florida, an alliance of community groups were successful in their campaign to amend their county charter to declare that ‘all Citizens of Orange County have a right to clean water’ and the county’s waterways have a ‘right to exist, Flow, to be protected against Pollution, and to maintain a healthy ecosystem’.61 In 2014, residents of the US City of Toledo sought to amend the city charter by way of The Lake Erie Bill of Rights to declare that ‘Lake Erie, and the Lake Erie watershed, possess the right to exist, flourish, and naturally evolve’ and residents have ‘the right to a clean and healthy environment’ (though this amendment was later struck down as unconstitutional by the Federal Court).62 In 2015, the Colombian government’s failure to halt mining near the Atrato River led an alliance of communities living around the river basin to seek a declaration from Colombia’s Constitutional Court that a number of constitutional rights had been breached, resulting in an acknowledgement of a category of rights belonging to both the river and the communities.63 These developments do not resolve uncertainties about risks and duties or the balancing of environmental and human needs, but point to the need for institutional design to accompany the use of transnational water norms.

4.3 Opportunities: Transnational Water Norms in a Changing Climate

Despite the potential barriers to realizing rights for rivers in a changing climate, there remain opportunities for the use of transnational water norms to bring together objectives of the climate and water law regimes. Scholars have pointed to the need for urgent reform of both climate and water regimes – and better integration of the two sectors, to address climate change –64 and lessons from the use of transnational water norms may provide opportunities to bridge this sectorial disconnection.

First, the use of transnational water norms can have the important outcome of recognizing Indigenous and First Nations voices in water-related decision-making. While transnational water norms do not align with all Indigenous worldviews,65 they can provide an important avenue to realize Indigenous or First Nations rights as central in decisions relating to water.66 Understanding intersections between the rights of Indigenous and local communities and climate mitigation and adaptation has been recognized as crucial,67 and the value of local and Indigenous knowledge in developing and implementing water and climate responses has also been recognized, for instance in the Marrakech Partnership Water-Climate Action Pathway.68 This aligns with the international recognition of the rights of Indigenous Peoples to water and for a central role in water-related decision-making captured, for example, in the United Nations Declaration on the Rights of Indigenous Peoples.69

Second, cases and movements utilizing transnational water norms, often initiated at the local level,70 highlight the role of civil society in bringing about change. This is noted, for example, in the Marrakech Partnership Water-Climate Action Pathway.71 Such movements will, however, need ‘to avoid falling into scalar disconnections (i.e. mis-representing grassroots)’.72 This is particularly so where different choices of law in pursuing social and environmental objectives will – if successful – have very different legal and institutional outcomes that may not represent community aspirations.

Rights for rivers also interface with other emerging rights and environmental discourses,73 and may provide pathways for the inclusion of more holistic environmental-human interactions in legal and regulatory responses to climate change. For instance, an economic approach to valuing water is still advocated for within the climate regime,74 but this focus sits in tension with the socio-ecological aspirations of transnational water norms. Approaches utilizing transnational water norms often encompass aspirations far greater than the anticipated legal or institutional outcome. There are signs that the discrete use of rights for rivers is evolving toward movements that encompass broader elements of climate justice. There is, for instance, the documentation of “myriad new water justice movements … rooted, disruptive, transdisciplinary, multi-scalar coalitions that deploy alternative river-society ontologies, bridge South-North divides, and translate river-enlivening practices from local to global and vice-versa”.75

These movements are developing alongside climate litigation that increasingly draws on rights-based approaches,76 and these separately evolving avenues for climate justice may, in future, inform each other. Boelens, et al., have noted this potential intersection, commenting on the many ways in which water-justice movements ‘build constructive dialogues among ‘“water justice”, “agrarian justice”, and “climate justice” – as well as on their mutual and internal contradictions’.77 Further research into the use of transnational water norms and intersections with Indigenous rights and legal systems, civil-society movements, and rights-based climate litigation, can offer insights into bringing together water and climate law.

5 Conclusion

Transnational water norms, such as rights for rivers, are being employed globally as effective mechanisms for changing the way rivers are managed or protected. As climate change puts pressure on rivers and freshwater bodies, such norms may also be seen as steps toward greater community involvement in water-related and environmental decision-making and climate adaptation.

This commentary has noted that climate mitigation and adaptation efforts increasingly feature measures relating to freshwater. It has outlined the challenges of transnational water norms in advancing those efforts, including the limits of place-based models and the lack of clarity around risk and duties in climate emergencies. While the potential challenges are significant, transnational water norms are likely to move toward, inform, or intersect with legal approaches that encompass the complex interdependence of humans, water, and the broader environment in a changing climate, bringing important perspectives to the climate regime.

The local nature of many movements or actions utilizing transnational water norms can also lead to a disconnection between local relationships or aspirations relating to water and global commitments made under the climate regime. This may involve political and legal challenges, including from judiciaries and local legislatures. In this context, in particular, an understanding of emerging transnational water norms is critical to implementing climate law.

Acknowledgments

I would like to thank Professor Margaret Young and Associate Professor Markus Gehring for their editorial guidance and support. I would like to acknowledge support from Melbourne Law School and the Cambridge Faculty of Law to participate in the Climate Change Regime and Public International Law workshop, as well as support from Professor Sundhya Pahuja and the Laureate Program in Global Corporations and International Law. I would also like to thank all participants, commentators, and convenors of the workshop for their generative feedback, support, and collegiality.

1

unfccc, Article 4(e).

2

unfccc, Decision 1/cp.27, Sharm el-Sheikh Implementation Plan, fccc/cp/2022/L.19 (2022), preamble, para. 21.

3

unesco, The United Nations World Water Development Report 2023: Partnerships and Cooperation for Water. unesco, Paris (hereinafter UN World Water Development Report 2023).

4

Ibid., 5.

5

Martina Angela Caretta and Aditi Mukherji, ‘Water’ (Climate Change 2022: Impacts, Adaptation and Vulnerability: Contribution of Working Group ii to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change, Cambridge University Press, 2022), 551–712; and UN Department of Economic and Social Affairs Sustainable Development, ‘ndc Partnership: Water-Climate Nexus’, <https://sdgs.un.org/partnerships/ndc-partnership-water-climate-nexus>.

6

This commentary adopts the definition of the climate regime described in the introduction to this special issue by Margaret A. Young and Markus Gehring.

7

Elizabeth Macpherson, Axel Borchgrevink, Rahul Ranjan, and Catalina Vallejo Piedrahíta, ‘Where Ordinary Laws Fall Short: “Riverine Rights” and Constitutionalism’, 30(3) Griffith Law Review 438 (2021); and Rutgerd Boelens, et al., ‘Riverhood: Political Ecologies of Socionature Commoning and Translocal Struggles for Water Justice’, 50(3) Journal of Peasant Studies 1125 (2022).

8

Emile Dupuits, Michiel Baud, Rutgerd Boelens, Fabio de Castro, and Barbara Hogenboom, ‘Scaling Up but Losing Out? Water Commons’ Dilemmas Between Transnational Movements and Grassroots Struggles in Latin America’, 172(2) Ecological Economics (2020).

9

Macpherson, et al., supra note 7.

10

Boelens, et al., supra note 7.

11

Macpherson et al, supra note 7, 439.

12

For a history of this movement, see Elizabeth Macpherson, ‘The (Human) Rights of Nature: A Comparative Study of Emerging Legal Rights for Rivers and Lakes in the United States of America and Mexico’, 31(2) Duke Environmental Law and Policy Forum 327 (2020); and Erin O’Donnell and Julia Talbot-Jones, ‘Creating Legal Rights for Rivers: Lessons from Australia, New Zealand, and India’, 23(1) Ecology and Society (2018).

13

Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (NZ).

14

Dupuits, et al., supra note 8, at 4.

15

ipcc, Climate Change 2014: Impacts, Adaptation, and Vulnerability: Working Group ii Contribution to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, 2014), 250.

16

Ibid., 232–3.

17

Joyeeta Gupta and Hilmer J. Bosch, ‘The UN Contribution to Water Law, Environment, Climate Disruption, and the Sustainable Development Goals’, in Water Law, edited by Joseph W. Dellapenna and Joyeeta Gupta (Edgar Elgar, 2021), 59.

18

Peter H. Gleick, ‘Regional Hydrologic Consequences of Increases in Atmospheric CO2 and Other Trace Gases’, 10(2) Climatic Change 137 (1987); Kenneth D. Frederick and David C. Major, ‘Climate Change and Water Resources’, 37(1) Climatic Change 7 (1997); William E. Riebsame, ‘Adjusting Water Resources Management to Climate Change’, 13(1) Climatic Change 69 (1988); Lee Godden, Raymond L. Ison, and Philip J. Wallis, ‘Water Governance in a Climate Change World: Appraising Systemic and Adaptive Effectiveness’, 25(15) Water Resources Management 3971 (2011); Jason Alexandra, ‘Navigating the Anthropocene’s Rivers of Risk—Climatic Change and Science-Policy Dilemmas in Australia’s Murray-Darling Basin’, 165(1) Climatic Change 1 (2021); and Jason Alexandra, ‘Climate Adaptation Options for the 2026 mdb Plan: Opportunities for Managing Climate Risk’, Australasian Journal of Water Resources 1 (2022).

19

Johann Dupuis, ‘Climate Change Adaptation as a New Global Norm in the Water Sector? Between Symbolism and Dilution’, in A Critical Approach to International Water Management Trends, edited by Christian Bréthaut and Rémi Schweizer (Palgrave Macmillan, 2018), 177; Alexandra, ‘Climate Adaptation Options’, supra note 18, 1.

20

Joyeeta Gupta and Kristin Conti, ‘Global Climate Change and Global Groundwater Law: Their Independent and Pluralistic Evolution and Potential Challenges’, 42(6) Water International (2017) (hereinafter Gupta and Conti, ‘Global Climate Change’).

21

Ibid., 745; and Joyeeta Gupta, The History of Global Climate Governance (Cambridge University Press, 2014).

22

ohchr, Special Thematic Report On Climate Change and the Human Rights To Water and Sanitation by the Special Rapporteur On the Human Rights to Safe Drinking Water and Sanitation (ohchr, 2022).

23

who, unicef, and World Bank, State of the World’s Drinking Water: An Urgent Call to Action to Accelerate Progress on Ensuring Safe Drinking Water for All (who, 2022), 17.

24

United Nations, ‘Historic UN Conference Marks Watershed Moment to Tackle Global Water Crisis and Ensure Water-Secure Future’, <https://sdgs.un.org/sites/default/files/202303/Closing%20press%20release_waterconference_FINAL_24Mar.pd>.

25

UN World Water Development Report 2023, supra note 3, vii.

26

Sharm el-Sheikh Implementation Plan, supra note 2, preamble.

27

Ibid., para. 21.

28

UN World Water Development Report 2023, supra note 3, 104.

29

Ibid., 105.

30

oecd, ‘oecd Principles on Water Governance’ (2015), <www.oecd.org/cfe/regionaldevelopment/OECD-Principles-on-Water-Governance-en.pdf>.

31

Roanna McClelland, ‘Local Actors, Global Lessons in Safeguarding Rivers: Implementing the Advice in the National Water Reform 2020 Inquiry Report’, Australasian Journal of Water Resources (2022), <https://doi.org/10.1080/13241583.2022.2153421>.

32

Lee Godden, ‘The Water-Energy Nexus’, in Water Law: Elgar Encyclopaedia of Environmental Law Series, edited by Lee Godden, Joseph W. Dellapenna, and Joyeeta Gupta (Edward Elgar online, 2021), 77 (hereinafter Godden, ‘Water-Energy Nexus’).

33

Craig M. Kauffman and Pamela L. Martin, ‘Constructing Rights of Nature Norms in the US, Ecuador, and New Zealand’, 18(4) Global Environmental Politics 43 (2018); Fleur Johns, et al., ‘Law and the Mekong River Basin: A Socio-Legal Research Agenda on the Role of Hard and Soft Law in Regulating the Transboundary Water Resources’, 11(1) Melbourne Journal of International Law 154 (2010); and Dupuits, et al., supra note 8.

34

Boelens, et al., supra note 7; and Macpherson, et al., supra note 7.

35

See, e.g., Macpherson, ‘The (Human) Rights of Nature’, supra note 12; and O’Donnell and Talbot-Jones, supra note 12.

36

Virginia Marshall, ‘Removing the Veil from the “Rights of Nature”: The Dichotomy between First Nations Customary Rights and Environmental Legal Personhood’, 45(2) Australian Feminist Law Journal 233 (2019); and Erin O’Donnell, Anne Poelina, Alessandro Pelizzon, and Cristy Clark, ‘Stop Burying the Lede: The Essential Role of Indigenous Law(s) in Creating Rights of Nature’, 9(3) Transnational Environmental Law 403 (2020).

37

David R. Boyd, The Rights of Nature: A Legal Revolution That Could Save the World (ecw Press, 2005).

38

‘Harmony With Nature: Law List’ <http://harmonywithnatureun.org/rightsOfNature>.

39

Craig M. Kauffman and Linda Sheehan, ‘The Rights of Nature: Guiding Our Responsibilities through Standards’, in Environmental Rights: The Development of Standards, edited by Stephen J. Turner, et al. (Cambridge University Press, 2019) 342, at 343.

40

Elizabeth Macpherson and Felipe Clavijo Ospina, ‘The Pluralism of River Rights in Aotearoa New Zealand and Colombia’, 25 Journal of Water Law 283 (2018), 283.

41

Kauffman and Martin, supra note 33, 43.

42

Macpherson, ‘The (Human) Rights of Nature’, supra note 12, 331.

43

Colorado River Ecosystem v. State of Colorado, Federal District Court of Colorado (US) (17-cv-02316-nyw) 2017.

44

Ibid., Document 24: Unopposed Motion to Dismiss Amended Complaint With Prejudice Filed by Plaintiff.

45

E.g., Erin O’Donnell, ‘Rivers as Living Beings: Rights in Law, but No Rights to Water?’, 29(4) Griffith Law Review 1 (2021).

46

Dana Zartner, ‘Watching Whanganui and the Lessons of Lake Erie: Effective Realization of Rights of Nature Laws’, 22(1) Vermont Journal of Environmental Law 1 (2021).

47

Peter D. Burdon, ‘Obligations in the Anthropocene’, 31(3) Law and Critique 309 (2020), 316.

48

Emily Jones, ‘Posthuman International Law and the Rights of Nature’, 12 Journal of Human Rights and the Environment 76 (2021), 89. There are moves to recognize rights for nature more globally; see the review of global developments in Jérémie Gilbert, Elizabeth Macpherson, Emily Jones, and Julia Dehm, ‘The Rights of Nature as a Legal Response to the Global Environmental Crisis? A Critical Review of International Law’s “Greening” Agenda’, in 52 Netherlands Yearbook of International Law 2021, edited by D. Dam-de Jong and F. Amtenbrink (T.M.C. Asser Press, 2021).

49

World Economic Forum, Water Security: The Water-Food-Energy-Climate Nexus (World Economic Forum, Island Press, 2011), 1.

50

Ministry Delegate in charge of Water, Kingdom of Morocco, the Ministry of Environment, Energy and the Sea, France, and the World Water Council, Water and Climate Blue Book, 2016, 8.

51

This relationship is outlined in Godden, ‘Water-Energy Nexus’, supra note 32, 73.

52

ndc Partnership: Water-Climate Nexus’, supra note 5.

53

Godden, ‘Water Energy Nexus’, supra note 32, 73.

54

Anik Bhaduria, Claudia Ringlerb, Ines Dombrowskic, Rabi Mohtardand and Waltina Scheumann, ‘Sustainability in the Water-Energy-Food Nexus’, 40(5–6) Water International 723 (2015), 727.

55

ndc Partnership: Water-Climate Nexus’, supra note 5.

56

UN Water, Water for Life Decade, <www.un.org/waterforlifedecade/scarcity.shtml>.

57

E.g., Macpherson, ‘The (Human) Rights of Nature’, supra note 12.

58

Gabriel Eckstein, et al., ‘Conferring Legal Personality on the World’s Rivers: A Brief Intellectual Assessment’, 44(6–7) Water International 804 (2019), 21.

59

Mohd. Salim v. State of Uttarakhand and others, wppil 126/2014, Uttarakhand High Court at Nainital, 2017. For the public comments regarding liability, see, e.g., Kavita Upadhyay, ‘Uttarakhand Doesn’t Want Living Person Status for Ganga, Yamuna’, The Indian Express, 21 June 2017, <http://indianexpress.com/article/india/uttarakhand-doesnt-want-living-person-status-for-ganga-yamuna-4723578/>.

60

Many of these ‘local’ organizations may also have transnational or international links; see, e.g. Craig M. Kauffman (ed.), Grassroots Global Governance: Local Watershed Management Experiments and the Evolution of Sustainable Development (Oxford University Press, 2017).

61

Orange County Code, codified through Ordinance No. 2022–07, Sec. 704.1, Right to Clean Water, Standing and Enforcement (arts (1) and (2)) <https://library.municode.com/fl/orange_county/codes/code_of_ordinances>. On 6 July 2022 a Circuit Court judge found that state legislation had pre-empted the county amendment <https://insideclimatenews.org/news/07072022/two-lakes-two-streams-and-a-marsh-filed-a-lawsuit-in-florida-to-stop-a-developer-from-filling-in-wetlands-a-judge-just-threw-it-out-of-court/>.

62

Drewes Farms Partnership v. City of Toledo, N.D. Ohio Case No. 3:19 cv 434, 2019 wl 1254011 (March 18, 2019).

63

Centro de Estudios para la Justicia Social ‘Tierra Digna’ and Others v. The President of the Republic and Others, Corte Constitucional, Sala Sexta de Revision [Sixth Chamber] (Colombia), No. T-622 of 2016.

64

E.g., Godden, ‘Water-Climate Nexus’, supra note 32; see also the citations listed at notes 12–20.

65

Marshall, supra note 36.

66

Elizabeth Jane Macpherson, Indigenous Water Rights in Law and Regulation: Lessons from Comparative Experience (Cambridge University Press, 1st ed., 2019); Boelens, et al., supra note 7; Martuwarra RiverOfLife, et al., ‘Yoongoorrookoo: The Emergence of ancestral personhood, 30 Griffith Law Review (2021).

67

Maureen Frances Tehan, Lee Carol Godden, Margaret A. Young, and Kirsty Ann Gover, The Impact of Climate Change Mitigation on Indigenous and Forest Communities (Cambridge University Press, 2017).

68

unfccc, Marrakech Partnership Water-Climate Action Pathway (2021), 5.

69

UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples: Resolution adopted by the General Assembly, 2 October 2007, a/res/61/295, in particular articles 25, 26, and 32.

70

Macpherson, et al., supra note 7, 439.

71

Marrakech Partnership Water-Climate Action Pathway, supra note 68, 5.

72

Boelens, et al., supra note 7, 1135.

73

See, for example, the human right to a healthy environment. On 8 October 2021, the United Nations Human Rights Council adopted Resolution 48/13 recognizing the human right to a clean, healthy, and sustainable environment. It was followed by the United Nations General Assembly recognition of a human right to a clean, healthy, and sustainable environment in July 2022 (a/res/76/300).

74

ndc Partnership: Water-Climate Nexus’, supra note 5.

75

Boelens, et al., supra note 7, 1125.

76

See for example, UN Human Rights Committee, Daniel Billy et al. v. Australia, Communication No. 3624/2019, 22 September 2022, UN Doc. ccpr/c/135/D/3624/2019.

77

Boelens, et al., supra note 7, 1148.

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