Do legal rights alone ensure adequate protection for our rivers?

Rivers globally face imminent threats, exacerbated by the escalating urbanization that consequently expands the water footprint of cities. As urban populations burgeon, water-stressed cities are contemplating the utilization of environmental flows as a prospective water source. In the impending deliberations over water policy, where the vitality of rivers clashes with the human entitlement to water, it becomes imperative for rivers to be endowed with a resolute and efficacious advocacy to assert their interests in these discussions.

Integrated water resource management necessitates a unified and cooperative strategy for water utilization, fostering collaboration among diverse users. The essential foundation of the human right to water relies on the preservation of robust, operational aquatic ecosystems that ensure the provision of secure freshwater resources.

The global movement advocating for the acknowledgment of legal rights for rivers is fundamentally rooted in the interplay between human communities and their geographical surroundings. This movement aims to reconcile human water rights with the need for environmental flows in emerging water reserves, safeguarding them from potential exploitation for commercial water needs in the future. However, can this cooperative strategy be viable in situations where rivers are viewed as adversaries, possessing their own legal rights?

As more rivers globally are granted legal rights and acknowledged as legal entities, a crucial question arises: what implications arise for water law and governance when the natural environment is legally recognized as a subject? The response reveals an unexpected and noteworthy paradox: while endowing the environment with legal standing introduces new legal capacities and is often vital for substantial advancements in environmental outcomes within water rights and markets, it may paradoxically weaken the cultural narrative that deems environmental protection essential.

Understanding the implications of granting legal rights to rivers poses a pressing challenge for water resource management and environmental law. By affording rivers legal personhood, the law acknowledges them as entities with enforceable rights. This raises the question of whether such recognition fosters collaboration and partnership between humans and rivers or positions rivers as additional contenders for limited resources. A comprehensive assessment is needed to grasp the consequences of conferring legal rights and personality to rivers, particularly in situations where competing water rights, such as those of irrigators, intersect with the imperative to maintain ecological health in water-scarce environments.

Here the paradox comes: 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.

Lessons from the new ‘river persons’, show how to use the law to improve river protection and how to begin to mitigate the problems of the paradox.

Some of the best evidence of using the legal person to build a collaborative approach to river health comes from Aotearoa New Zealand and Colombia, where the rivers received legal rights as part of a broader recognition of cultural values and the connection between people and the river.

In New Zealand, the Whanganui River attained legal recognition as a person, aligning with the Māori perspective that considers the river as an ancestral entity deserving care. Similarly, in Colombia, the Río Atrato was granted legal rights as part of a comprehensive initiative mandated by the Constitutional Court to safeguard the well-being of communities within the river basin. By aligning river rights with human values, these legal measures have become integral to the social, cultural, and economic fabric, avoiding the perception of rivers as potential rivals to humans and instead, weaving the destiny of the rivers into the intricate tapestry of human values.

India presents a compelling counterargument: the foundational underpinnings of legal rights are subject to intense controversy, given their derivation from Hindu religious principles while overlooking the myriad communities residing along the Ganga, whose lives and livelihoods are intricately linked to the river’s well-being. While the state government’s decision to challenge the High Court judgment does not explicitly cite this controversy, it undeniably eroded the prospect of garnering widespread community endorsement.

From the experience of Bangladesh, the principal governing body responsible for river management, the National River Conservation Commission (NRCC), encounters similar challenges in safeguarding rivers and water bodies. Over the past nine years of NRCC initiatives, no legal initiatives have been undertaken on behalf of any rivers in Bangladesh. Notably, the institution appears to be driven more by individual leadership motivations rather than adhering strictly to its prescribed charters. Furthermore, the NRCC contends with internal competition among various government bodies and grapples with insufficient coordination. This distinct model featuring a standalone apex body seems to foster a fragmentation of efforts, hindering collaboration among communities and civil society organizations in advocating for river conservation.

Furthermore, it is imperative that newly established legal entities are seamlessly integrated into the existing water governance framework.

The formulation of legal constructs within the realm of environmental law is fundamentally influenced by cultural narratives delineating the significance of the environment. These narratives wield considerable influence in shaping the regulatory approach to environmental challenges, as they tend to align specific constructs more proximately with either public interest or private interest theories of regulation.

Granting legal rights to rivers establishes them as legal entities, concurrently framing the aquatic environment as both a subject and an object within water law. In its capacity as a legal object, the aquatic environment is contingent upon the narrative that deems it deserving of protection yet legally vulnerable, necessitating human intervention for safeguarding. Conversely, in its role as a legal subject, rivers possess both legal rights and legal standing. Endowed with legal subjectivity, rivers attain a level of autonomy that diminishes their reliance on human guardianship, enabling them to initiate legal proceedings to uphold their own rights.

The conceptualization of the environment as a legal entity transcends mere physical dimensions; rather, it embodies a contingent and utilitarian construct shaped by human activities, societal values, and both legal and non-legal considerations. Consequently, the aquatic environment emerges as particularly susceptible to the oscillations within cultural narratives.

So, addressing the challenges of safeguarding rivers and achieving environmental water recovery lacks straightforward solutions. Balancing the preservation of the current industries and communities dependent on water usage with the imperative to sustain a thriving aquatic environment is a complex task.

The emergence of new entities, such as river persons, prompts a shift in the discourse from debating the legal recognition of the aquatic environment as a subject with rights and powers to exploring the practicalities of implementation. Notably, the legal rights paradox underscores the need for a closer examination of the mechanisms through which ‘nature’ is granted form and authority within legal frameworks.

Granting legal rights to rivers poses a formidable challenge to effective water governance. In the absence of adequate measures fostering the connection between communities and their natural surroundings, and the reinforcement of cultural values, the introduction of new legal rights for rivers may have unintended consequences. There is a risk that legal reforms aimed at affording rivers enhanced protections might inadvertently result in a weakening of such safeguards.

It is imperative for policymakers to articulate a clear understanding of the role that these newly designated legal entities will assume in the realm of water governance. The notion of providing rivers with a ‘voice’ becomes pertinent only when there is an expectation that they will actively compete for their own outcomes. However, this approach could be construed as an evasion of our responsibilities in environmental protection, as it implies a reliance on rivers to autonomously safeguard their well-being. ❑

FBI Director Christopher Wray recently upped the ante in America’s anti-China campaign. In congressional testimony on January 31, he sounded the alarm over intensified Chinese hacking activity and warned that US infrastructure – telecommunications, energy, transportation, and water – is acutely vulnerable to the Chinese state-sponsored hacker group Volt Typhoon. Front-page coverage by the New York Times added to the sense of urgency.

A few days after Wray’s testimony, a joint report from the FBI, the Cybersecurity and Infrastructure Security Agency (CISA), and the National Security Agency (NSA) provided detailed documentation of the Volt Typhoon threat. More front-page coverage by the Times duly followed. And then came the outage of a major cellular network on February 22. Suddenly, cyber fears have taken on a life of their own.

Largely ignored in this frenzy is an important conditionality to Wray’s warning. China, he alleged, was “prepositioning” for future conflict. That is not the same as Russian President Vladimir Putin massing troops on Ukraine’s border in late 2021 and early 2022. In Wray’s

words, Volt Typhoon could be expected to attack US critical infrastructure, “If or when China decides the time has come to strike” (my emphasis).

Thus, the FBI, in concurrence with CISA and the NSA, is basing its very public alarm purely on conjecture about China’s future intent, not on any concrete information of an imminent cyberattack. Far be it for me to doubt the veracity of the US intelligence community’s evidence on Volt Typhoon; I would merely point out that this is circumstantial evidence that has revealed absolutely nothing about the likelihood of action. For those who remember the dire, but erroneous, warnings about Saddam Hussein’s supposed weapons of mass destruction, which the United States used to justify the invasion of Iraq in 2003, this is no small concern.

Having recently written a book about the potential of false narratives to trigger an accidental conflict between the US and China, I worry a lot about over-zealous emphasis on circumstantial evidence. I also worry about the hypocrisy of the allegations of Chinese cyber prepositioning. Recall that the US deployed the Stuxnet computer virus against Iranian nuclear centrifuges back in 2010.

In a remarkable new book, The Politics of Language, David Beaver and Jason Stanley describe such leaps of faith as cases of “presuppositional resonance”: unsubstantiated projections of tangential (circumstantial) information that are marshaled to justify a politically expedient course of action. The current US political agenda vis-à-vis China is a classic example of this tendency.

Wray’s presuppositional warnings do not come out of thin air. He has a long history of anti-China fearmongering. In the summer of 2020, as that year’s presidential election campaign was heating up, Wray joined three other senior officials from Donald Trump’s administration (Secretary of State Mike Pompeo, Attorney General William Barr, and National Security Adviser Robert O’Brien) in a succession of carefully orchestrated anti-China tirades. Once a lead actor in Trump’s political theater, Wray has been unwavering in his strident Sinophobic views ever since.

The FBI director’s fixation on Chinese cyber threats has an unfortunate historical precedent that harks back to the first Cold War. The “red baiting” that targeted the Soviet Union and alleged Communist sympathizers back then is aimed at China today.

The bipartisan anti-China campaign in Washington seems dead set on backing the Chinese into a corner. That has become increasingly evident in the past three years, as the Biden administration has continued to prosecute the trade and tech wars that Trump started. Former Speaker of the House Nancy Pelosi compounded the pressure campaign with her 2022 visit to Taiwan, which poured salt on one of China’s most sensitive open wounds.

Similarly, under the leadership of US Representative Mike Gallagher – a soon-to-be retiring Republican from Wisconsin – a new bipartisan House Select Committee on China has used a combination of carefully staged hearings, threatening letters to US companies, and multimedia stagecraft to lead a crusade against China. It was hardly surprising to see the committee welcome Wray with open arms to its hearing on January 31.

Countless other US politicians have jumped on the bandwagon. There probably is not a single member of the US Congress – Democrat or Republican – who is willing to take a principled stand in favor of US reengagement with China. Anyone tempted to do so will be accused of Munich-like appeasement. Although President Joe Biden came close to re-engagement at the Woodside Summit with Chinese President Xi Jinping last November, his administration remains unwavering in imposing escalating restrictions on Chinese access to advanced technology.

To be sure, China hasn’t made it easy. The surveillance balloon incident early last year – to say nothing of a “no limits” partnership with Russia, a country prosecuting a barbaric, illegal war of aggression – feeds America’s China-bashing politics. Wray’s cyber alarms amplify these presumed threats. In the end, however, this pressure campaign could backfire. Increasingly aggressive US actions have been stoking precisely the kind of hostile Chinese intentions that paranoid US politicians fear most. That is true regarding Taiwan and is also the case now with cyber security. America needs to be very careful of what it asks for.

All this points to a new chapter in the US-China conflict – trade and tech wars now reinforced by a cyberwar. Notwithstanding Biden and Xi’s denials, this conflict has cold war written all over it. The original Cold War came dangerously close to being hot, especially during the Berlin Crisis and the Cuban Missile Crisis. Could the risks of cyberwar take us that close again? Do we have the trust-based capacity to temper those risks? Wray’s fearmongering provides worrying answers to those questions. Grave danger lies ahead in the growing drumbeat of US-China cyberwar. ❑