Granting rights to the living

 

 

 

 

Part of the translation of the text :

Faire droit au vivant

By Catherine Larrère|  10 octobre 2018|  DOSSIER POUR LA SCIENCE N° 101

https://www.pourlascience.fr/sd/biologie-vegetale/hors-serie-pour-la-science-n0101-14825.php

Granting rights to the living.

From now on, nature and the living are subjects of law, able to go to court to be protected.

In 1972, Christopher Stone, a law teacher in California, caused a stir by writing an item called ‘Should Trees Have Standing? In order to prevent Walt Disney company from building a winter sports resort in the Mineral King Valley, a region well-known for its sequoias, he proposed to bestow the legal capacity of subjects of law to natural entities, in this case trees, thus giving the trees the possibility to plead in their own right before the court.

[…]

The Sierra Club, a famous environmental NGO, sued Walt Disney over its project but the California Court of Appeal rejected the claim saying that the organisation could not have legal standing since its members have not been personally adversely affected and did not suffer damage or individual loss. US Supreme Court was about to begin deliberations when Christopher Stone intervened. His idea- it is true that the personal lives of the Sierra Club’s members will not be affected directly by the Walt Disney project, however the same thing cannot be said about the trees the lives of which are threatened. Also, if the trees’ cause was personally defended in court by an appointed representative, they could win, and the project then would be stopped.

Commentary:

Overall, the strategy that served me the most, even more so at the beginning of the exercise, was to read texts directly related to the primary text in question this helped me a lot to grasp the main concepts used and to see how authors would compare, contrast and link them.

As some of the vocabulary is from the legal domain, one will easily face two main difficulties. On one hand this is a specialised text, and it may be the case that at times to translate in a professional way is only possible for a specialist. One the other hand, it might be impossible, for specialists of comparative law themselves, to find exact equivalents, and therefore being left with no other options than to resort to translation technics such as cultural equivalence (Vinay, and Darbelnet, 1958/1977)  since the French and American or English (if they are taken as source and target cultures) legal systems do not have always themselves strict equivalents terms (Gémar, 1982) as they are different systems with different laws, infrastructures, organizations, historical, legal, and social references that do not match.

The primary challenge translating this text, was that the interest in law for this status change is very recent (Regad, 2018). It has been therefore several times difficult to find similar expressions coined in other texts (even expressions from the original French item to translate). One will have to then research not very used neologisms in context and jargon not yet entirely stabilised (Fournel, 2012), or concepts that remain very evolutive, changing or not very largely settled or represented. To solve lack in similarity in different cultures and also the challenge of the novelty in recent cultural stance, I often chose an explanatory approach, or explicitness change (Chesterman, 1997), sometimes using several words, instead of one, translate a word twice in order to erase ambiguity and frame the original idea further, and explaining or exemplifying further the concept.

One of the biggest translation dilemmas was on the topical sentence. The French text proclaims : ‘La parole est à la défense ‘. Numerous instances of this saying which is linked to court processes can be found. In English the translation I chose is ‘the defence may now speak’ that is a literal translation (Chesterman, 1997) of the French text. I did find a few texts using this expression, however it did not seem to be used by the judges in English jargon; phrases such as ‘you may proceed’, ‘Please present your case’, ‘Present your opening statement’ (Oneida County Youth Court, 2019) being spoken instead. After searching for alternative phrases, I finally opted for the literal version. What motivated my decision is that the ability to speak has historically and presently being taken into account in the granting of legal rights. If nature needs a representative to articulate its rights, one of the most notable injustice of the psychiatric and legal world had been to consider the inability of some human beings to speak as evidence of their mental and intellectual disabilities (Colley, 1999) (Harvey, 1857) (Crowley, 2018), these scientific or medical assessments in turn instrumentalised in determining these people diminished legal status

(526 words)

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Appendix 1: corpus of texts:

Locus standi in environmental torts and the potential influence of human rights… (M. Wilde)

January 18, 2014

Author

Mark Wilde

Keywords

Environmental tort; standing (locus standi); environmental justice; private nuisance; convergence of human rights and tort; human rights and environmental justice; European Court of Human Rights jurisprudence; statute and standing.

Abstract (introduction)

The debate regarding the role of civil liability as a means of environmental protection has been running for many years and shows no signs of running its course, as certain States press ahead with environmental liability regimes and the European Community continually shifts position. One of the central themes that has yet to be fully resolved concerns which parties should be in a position to take action in respect of environmental harm. Existing private-law mechanisms focus on individual loss, be it in the form of personal injuries or damage to property. This immediately limits the class of persons who may claim and focuses attention on the individual loss rather than the wider environmental harm. For example, members of the family home, other than the person enjoying title to the property, may be excluded from the protection afforded by the property torts, such as private and public nuisance, and trespass to land due to their lack of title. This theme links into a broader debate in that, beyond the family home, there is clearly limited capacity for individuals, or other interested parties, to seek remedies in respect of damage to the wider environment.

Wilde, M. (2003) ‘Locus standi in environmental torts & the potential influence of human rights jurisprudence’, Review of European Community and International Law, 12(3), pp. 284-294 [Online]. Available at https://gnhre.org/2014/01/18/locus-standi-in-environmental-torts-the-potential-influence-of-human-rights-m-wilde/ (Accessed 10 January 2019).

Capacity of subject of law :

Legal capacity in Law To be a subject of law In order to have ability to acquire rights and take obligations and responsibility, ONE should have this capacity which is called legal capacity. Only subjects of law have a legal capacity, and those who have a legal capacity are the subjects of law. Legal capacity Issue of liability or responsibility, is strictly connected with possession of legal capacity.

https://www.coursehero.com/file/9752734/03/

The capacity of subject of law of individuals at challenging the rights of the states is a recent right in international law, enabling people’s rights not to remained subservient to the ones of the states’ or even at ‘being prior and standing above’ to the rights of the states or other organization.

https://brill.com/abstract/book/9789004189683/Bej.9789004184282.i-728_012.xml

Subject of rights (Zivi, 2006).

In Zivi, the subjects of rights is used in a very relevant manner to the                text as it is about the subjects able and responsible for claiming their rights while linking rights with activism.

https://www-jstor-org.libezproxy.open.ac.uk/stable/3694256

 Granting Legal Rights to Rivers: Is International Law Ready?

Four rivers around the world now have legal rights. But what are the implications of rights for nature for international environmental law?

Essays

August 6, 2018 – by Mara Tignino and Laura E. Turley

https://therevelator.org/wp-content/uploads/2017/03/logo-black.png

Last year, four rivers were granted legal rights: the Whanganui in New Zealand, Rio Atrato in Colombia, and the Ganga and Yamuna rivers in India. These four cases present powerful examples of the increasing relevance of rights-centered environmental protection. Like corporations, which have legal rights in many jurisdictions, these rivers are rights-bearing entities whose rights can be enforced by local communities and individuals in court. But unlike corporations, these rights are not yet recognized in international treaties. Which raises the question: what are the implications of rights for nature for international environmental law?

Granting Rights to a River:  Enhancing a Right-Based Approach

[…] recognizes the importance of protecting water resources, but views them entirely as natural resources belonging to states.

In contrast to international law, some countries have granted rights to the nature, and specifically to rivers, in their national laws. In 2008, Ecuador recognized the constitutional right of Mother Earth and, in 2010, Bolivia adopted the Laws on the Rights of Mother Earth, which gives legal standing to nature and establishes an ombudsman for the protection of its rights. And in May 2017, Colombia’s Constitutional Court recognized the Atrato River as a legal person.

More recently, the Parliament of New Zealand granted the country’s third-longest river, the Whanganui, the legal rights of a person, after a 140-year campaign by the Whanganui Iwi tribe.

[…]

India’s Ganges River and one of its main tributaries, the Yamuna River were granted these same rights. The high court in the northern state of Uttarakhand — not the national government, as in New Zealand, Ecuador, and Bolivia—issued the order, citing the case of the Whanganui in establishing that that the Ganges and the Yamuna should be accorded the status of living human entities.

These rivers now have the right to representation in the form of “guardians” or “allies” in legal proceedings against threats to their wellbeing, such as degradation. […]

The Whanganui River is a relatively pristine ecosystem — especially in contrast to the heavily polluted Yamuna and Ganges rivers. Each day, 1.5 billion liters of untreated sewage enters the Ganges River, and many attempts to clean up the river have failed over the years. Will the river’s legal […]

Laura E. Turley  

Home > Environment > Environment: The Concept of Legal Personality – From Companies to Natural Entities?

Environment: The Concept of Legal Personality – From Companies to Natural Entities?

By Latham & Watkins LLP on April 4, 2017 Posted in Environment

By Paul Davies and Michael Green

New Zealand’s Parliament has just passed a bill to enable the Whanganui River to be recognised as a legal person. It will now be represented by two nominees: one appointed by the Maori Muir Woodscommunity (or Iwi), and another appointed by the government. […]

Chris Finlayson, New Zealand’s attorney general and minister for treaty negotiations described the move as “unprecedented” but also emphasised that it was equivalent to assigning legal personality to companies.

As a result of this development, the river will have its own legal standing with all corresponding rights, duties and liabilities of a legal person. This is the first instance anywhere of extending legal personality to a natural entity

Implications

[…]

This change provides a mechanism for the natural object to be proactively protected, rather than reactively addressed through seeking to clean up any degradation in the condition of such natural object.

Given the impact of climate change on the wider environment, we can expect increased pressure for legal systems (globally) to adopt equally innovative steps in order to confer legal personality to significant natural objects.

This post was prepared with the assistance of Ei Nge Htut in the London office of Latham & Watkins.

Should trees have standing? Towards legal rights for natural objects (C. Stone).

January 11, 2014 Anna   Leave a comment

Author

Christopher Stone

Keywords

Development of rights, development of children’s rights, standing for ‘natural objects’.

Abstract

This article, from the era when the birth of modern environmentalism and conservationism arguably emanated, is an abstract but serious attempt to propose that forests, oceans and rivers, in fact the entire natural environment, should be afforded legal rights. The piece explains that the granting of new rights involves two aspects; first, legal-operational aspects and second psychic and socio-psychic aspects. The author argues that it would be seemingly ridiculous to state that ‘natural objects’ should have no rights to seek legal redress merely because they cannot speak up for themselves. It is considered normal for corporations, who cannot speak, to employ lawyers to act on their behalf; the same can be said for states, estates, children etc. The mentally incompetent or any person that is incapable of managing their own affairs is provided, by the courts, with someone who can whilst a business entity that has become ‘incompetent’ is, for example, appointed a trustee in bankruptcy; conceivably someone could apply to the courts to be the ‘guardian’ of a natural object that is perceived to be in danger. https://gnhre.org/2014/01/11/should-trees-have-standing-towards-legal-rights-for-natural-objects-c-stone/

Extra corpus :

More secondary corpus related to the concepts linked to the overall translation but not necessarily to the glossary or more loosely connected.

Should Trees Have Standing

Over three decades ago, as a professor at the University of Southern California, Christopher Stone challenged the historic legal premise that nature and trees are treated as objects in the eyes of the law and therefore without rights.  He recognized that for nature to have rights under the law, the fundamental basis of our legal systems would need to be rewritten.


Should Trees Have Standing? became a rallying point for the new environmental movement and food  for a worldwide debate on the basic nature of legal rights. The debate reached the U.S. Supreme Court.

[…]

This enduring work continues to serve as the definitive statement as to why trees, oceans, animals, and the environment as a whole should be bestowed with legal rights, so that the voiceless elements in nature are protected for future generations.

https://www.e-elgar.com/shop/should-trees-have-standing