Michelle Bender, Legal Counsel at Ocean Vision Legal
Ralph Chami and Dinah Nieburg at Blue Green Future
*Blue Green Future and Ocean Vision Legal are supporting Māori indigenous leaders to secure legal personhood for Whales in the Pacific and beyond.
Key words: Whale Rights, Legal Personhood of Whales, Ocean Rights
On March 27, 2024 in the Cook Islands, Māori leaders of the Pacific – including Aotearoa New Zealand, Cook Islands and Tahiti – gathered to sign a declaration aspiring to confer Legal Personhood on the Whales migrating across their waters.
This groundbreaking document, He Whakaputanga Moana (Declaration for the Ocean), marks a radical shift in how we view these magnificent creatures. It not only recognises their inherent mana (spiritual essence) but also elevates them to legal persons with intrinsic values and inherent rights, including freedom of movement, healthy environments, and population restoration.
The Māori people relate to Whales as ancestors and sentient beings who play a vital role in the ecological and cultural health of the Pacific Ocean. But Whales are under threat from economic activity – ship strikes, entanglements in nets, sonar and seismic testing, pollution. Sadly, we live in a world where the Ocean and Nature as a whole loses out to economic activity. A new approach is needed — for Whales and for Nature.
In this blog series, we lay out the rationale for bringing legal personhood into the strategy for Whale protection across the Pacific and beyond. We clarify the myths and misconceptions about what legal personhood is and how it can be leveraged to bring enforcement and mitigation actions into play. We show that through legal personhood, maritime actors that otherwise do not take the welfare and protection of Whales into their business calculations can now be influenced to change behaviour. Thus, we can show how intrinsic values and market values do not have to be “at odds.” On the contrary, “legal personhood” is a framework for bringing both sets of values together into a protective fabric for the living world.
The question this blog will address:
Can Whales be a legal person?
(Linda Bercusson via Conservation International Pacific Islands)
What is legal personality?
You may have seen a recent article in the Guardian, where a UK delegate firmly ruled out the possibility of the UK recognising the Rights of Nature, stating that rights can only be held by legal entities with a legal personality.
Legal personality is the acknowledgement via a designation act that an entity is owed being subject to certain rights and duties in law. [1] Different understandings of a legal person exist, and these understandings vary across legal systems and are not absolute. This is because legal personality is a man made concept catering to our needs and values, and therefore has adapted the interpretations that suit our needs. However, with the understandings that exist, we will demonstrate how Whales can be a legal person with legal personality, as called for in the He Whakaputanga Moana Declaration.
A legal person is not synonymous with a living person
First, a legal person is not the same as a living person and can be a nonhuman entity. In fact, a legal person has been considered any subject-matter other than a human being. [2] For example, corporations, ships and churches have been considered ‘legal persons’ in varying jurisdictions, and hundreds of laws, policies and judicial decisions in approximately 40 countries recognise that Nature as a whole, or specific ecosystems and species are legal entities or persons subject to rights. [3] Additionally, multiple high Courts have noted that there is nothing inherent in the concept of legal personality preventing its extension to animals. [4] This position is further supported by the underlying ethical premise of rights and their origination— life. In fact, it is one reason identified in drafting the Universal Declaration of Human Rights, where the supreme value of a human being originates from the fact of existing, rather than other arguments. [5] In this sense, the rights of Nature are inherent to Nature’s existence and are recognised, rather than granted. Whales have legal personality or rights simply for existing and living. The Hinemoana Declaration or any other Act in support, is thus, a formal recognition of the legal personality of Whales; the legal rights that are inherent based upon existence.
Additionally, case law in India brings to light two important distinctions that demonstrate the legalities of legal personhood for Whales. On 20 March 2017, the High Court of Uttarakhand, India, declared that “the Rivers Ganga and Yamuna, all their tributaries, streams, every natural water flowing with flow continuously or intermittently of these rivers, are declared as juristic/legal persons/living entities having the status of a legal person with all corresponding rights, duties and liabilities of a living person.” [6] However, on 7 July 2017, the Supreme Court of India agreed to hear an appeal against this ruling when the government of Uttarakhand argued that the ruling was not practical and could lead to complicated legal situations. [7] How can a River have duties? Or can I sue a River if there is flooding? These questions are warranted in light of the ruling, but unfortunately, the ruling “blurred the important distinction between legal rights and human rights by conflating the legal person with the living person.” [8]
(Michelle Bender on Legal Personhood of Whales)
A legal person’s rights and duties are relative to the entity’s nature
This leads us to our second point: a legal person is not the same as a living person, meaning that a legal person does not have the same rights and duties as a living person. [9] What rights and duties a legal person has, are unique to the characteristics and needs of the entity in question (e.g., human or nonhuman, individual or collective and the type of ecosystem or species of concern). [10] As an example, corporations have different legal rights and duties compared to human beings, as they “may assert freedom of expression, but are not protected by the right to life” as are human beings. [11] Additionally, corporations' duties are relative to their nature, and independent from the rights and duties of their specific members (i.e., living persons). In other words, building off the philosophy of Thomas Berry, Humans have Human Rights, the Ocean has Ocean Rights, and Whales have Whale Rights. [12] This also means that the correlative duties of such rights are relative as well.
Legal rights confer duties upon others
Third, some believe that to have legal personality, the entity must demonstrate the capacity to hold rights and duties. However, the possession of legal rights justify correlative duties upon other entities or persons to observe the right in both law and practice, not necessarily duties upon the entity conferred rights. [13] This can also be the case for inherent and fundamental rights, in which we argue the rights of Whales are. For fundamental rights, the duties are more implicit, often involving moral or ethical obligations to respect these rights in other human and nonhuman beings. Such is the instance with Human Rights, as they are held by individuals and collectives of peoples, but the duty to uphold those rights lie with States; the right to life (a fundamental right) implies a duty not to harm the life of another. [14] Therefore, recognition of the inherent rights of Whales does not require we place any duties upon the Whale, only ourselves to ensure we respect and protect their existence and vital contributions to the natural cycles and processes that make life possible on Earth.
Even so, Whales can still demonstrate the capacity to hold legal rights through mental capacities as sentient beings. The prevalent interpretation of ‘capacities’ centres around ‘mental capacity,’ meaning the “cognitive capacity for thought, emotion, and decision making.” [15] The mental capacities of Whales are well known and extensively identified in scientific research. In the more heavily studied cetacean species - the bottlenose dolphin, the Orca Whale, the Sperm Whale, and the Humpback Whale - we have learned they possess cultural abilities, social complexity, and even multiculturalism, or groups of different cultures using the same habitat. [16] Whales possess a large capacity for intelligence and have repeatedly demonstrated the ability to learn and actively communicate with each other. [17]
Whales have intrinsic value
Finally, the ‘Interest Theory’ holds that those whose well being is of intrinsic value should have rights. [18] This reasoning, that Nature has value in itself, which can be expressed, or warrants expression through the recognition of its own rights, has been put forth by both the Constitutional Court of Ecuador and the InterAmerican Court of Human Rights. [19]
It is becoming increasingly recognised that all living beings and ecosystems have intrinsic value, including Whales. [20] In fact, the recent agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) preamble confirms this by desiring for future State Parties to act as stewards on behalf of present and future generations including by conserving the inherent value of biological diversity of areas beyond national jurisdiction. Now this can have varying implications, but for now, demonstrates that the international community recognises that biological diversity, including Whales, have intrinsic value and therefore justifies protection via legal personhood.
Conclusion
In sum, Whales have inherent rights and intrinsic value for existing and are therefore worthy of protection regardless of their direct benefit or utility to humanity. It may seem odd to think of other species or the ecosystems we are a part of as legal persons with rights, but our legal systems have made constant changes according to the information we have at hand. Not only is personhood for Whales permitted, but provides a fertile bridge between different ontological worldviews, facilitating the respect for Indigenous rights and traditional knowledge, while establishing unified legal principles that transcend cultural boundaries and allow both Whales and humanity to thrive.
This is the first transnational initiative in the world where communities and States are working together to shift the paradigm of how society relates to and uses the natural world (‘Rights of Nature’). Whales need coordinated and consistent protection in our one shared Ocean and legal personhood is one way to achieve that.
Stay tuned for our next blog that will cover how legal personhood can shift financial markets to work for Nature, rather than against it.
Witness a humpback whale birth caught on camera in Hawaii
National Geographic
[1] Law J, Legal Personality, A dictionary of Law (2018), 9th ed., Oxford Univ. Press.
[2] Salmond, J.W., On Jurisprudence (1966), 12th Edn., P.J. Fitzgerald, p. 305.
[3] Eco Jurisprudence Monitor at https://ecojurisprudence.org/dashboard/?map-style=political.
[4] Karnail Singh and others v State of Haryana (2013), p. 90.
[5] United Nations, Universal Declaration of Human Rights: History of the Declaration, available at: https://www.un.org/en/about-us/udhr/history-of-the-declaration, accessed 12 Jan. 2024.
[6] Ganges and Yamuna Case, Mohd. Salim v State of Uttarakhand & others, WPPIL 126/2014, Uttarakhand High Court at Nainital, 2017. Indian Courts, Judgments - High Court of Uttarakhand at Nainital, India. http://lobis.nic.in/ddir/uhc/RS/orders/22-03-2017/RS20032017WPPIL1262014.pdf.
[7] O'Donnell, E. L., and J. Talbot-Jones. 2018. Creating legal rights for rivers: lessons from Australia, New Zealand, and India. Ecology and Society 23(1):7. https://doi.org/10.5751/ES-09854-230107, p. 6.
[8] O'Donnell, E. L., and J. Talbot-Jones. 2018. Creating legal rights for rivers: lessons from Australia, New Zealand, and India. Ecology and Society 23(1):7. https://doi.org/10.5751/ES-09854-230107, p. 6.
[9] Karnail Singh and others v State of Haryana (2013), p. 60, para. 76.
[10] Gabriel Eckstein and others, ‘Conferring Legal Personality on the World’s Rivers: A Brief Intellectual Assessment’ (2019) 44 Water International 804 <https://www.tandfonline.com/doi/full/10.1080/02508060.2019.1631558> accessed 14 June 2023.
[11] Karnail Singh and others v State of Haryana (2013), p. 60, para. 76.
[12] O'Donnell, E. L., and J. Talbot-Jones. 2018. Creating legal rights for rivers: lessons from Australia, New Zealand, and India. Ecology and Society 23(1):7. https://doi.org/10.5751/ES-09854-230107,, p 27; Thomas Berry, The Great Work: Our Way into the Future (ell TowerB 2000), p 5; Zaffaroni, Raúl. La Pachamama y el Humano", Ediciones Madres de Plaza de Mayo, Ediciones Colihue, ISBN 978-950-563-925-0, Buenos Aires, 2011, p. 58; Final Judgement No. 253-20-JH/22 (Rights of Nature and animals as subjects of rights) “Estrellita Monkey" case, p.27, para. 80; Karnail Singh and others v State of Haryana, p. 60, para. 76.
[13] Schlager, E., and E. Ostrom. 1992. Property-rights regimes and natural resources: a conceptual analysis. Land Economics 68(3):249-262. http://dx.doi.org/10.2307/3146375; O'Donnell, E. L., and J. Talbot-Jones. 2018. Creating legal rights for rivers: lessons from Australia, New Zealand, and India. Ecology and Society 23(1):7. https://doi.org/10.5751/ES-09854-230107, p. 1; Saskia Stucki, Towards a Theory of Legal Animal Rights: Simple and Fundamental Rights, Oxford Journal of Legal Studies, Vol.40, No.3 (2020), pp.533–560, doi:10.1093/ojls/gqaa007, available at: https://academic.oup.com/ojls/article/40/3/533/5862901, p. 539. [14] See Chapter 1 Article 1 of the American Convention, which places on States the obligation to respect and ensure the free and full exercise of human rights for all persons subject to their jurisdiction.
[15] Dyschkani, Alexis, Legal Personhood: How We are Getting it Wrong, Univ. Illinois Law Review (2015), p. 2100.
[16] Marino L, Connor RC, Fordyce RE, Herman LM, Hof PR, et al., Cetaceans have complex brains for complex cognition. PLoS Biol 5(6) (2007), doi:10.1371/journal.pbio.0050139; see also Rendell LE, Whitehead H, Culture in whales and dolphins. Behav Brain Sci 24 (2001), pp. 309–324.
[17] Shea, B.D, Gallagher, A.J, Humpback Whale Instigates Object Play with a Lion’s Mane Jellyfish, Oceans 2 (2021), pp. 386–392, p. 386, https:// doi.org/10.3390/oceans2020022 (citing generally Patterson, E.M.; Mann, J. Cetacean Innovation. In Animal Creativity and Innovation; Elsevier BV 2015, pp. 73–125).
[18] Saskia Stucki, Towards a Theory of Legal Animal Rights: Simple and Fundamental Rights, Oxford Journal of Legal Studies, Vol.40, No.3 (2020), pp.533–560, doi:10.1093/ojls/gqaa007, available at: https://academic.oup.com/ojls/article/40/3/533/5862901, p. 542; see also Neil MacCormick, ‘Children’s Rights: A Test Case for Theories of Right’ in Neil MacCormick, Legal Right and Social Democracy: Essays in Legal and Political Philosophy (OUP1982) 159–60.
[19] The Constitutional Court of Ecuador, Sentencia No. 1149-19-JP/21 http://esacc.corteconstitucional.gob.ec/storage/api/v1/10_DWL_FL/e2NhcnBldGE6J3RyYW1pdGUnLCB1dWlkOic2MmE3MmIxNy1hMzE4LTQyZmMtYjJkOS1mYzYzNWE5ZTAwNGYucGRmJ30=, p. 11, para. 42; InterAmerican Court of Human Rights, AdvisoryOpinion OC- 23/17, ‘The Environment and Human Rights’, requested by the Republic of Colombia, 15 November 2017, para. 62.
[20] Ralph Chami, Thomas Cosimano, Connel Fullenkamp, and Sena Oztosun, Nature’s Solution to Climate Change: A strategy to protect whales can limit greenhouse gases and global warming (2019), Finance and Development, available at: https://www.imf.org/external/pubs/ft/fandd/2019/12/pdf/natures-solution-to-climate-change-chami.pdf; Lauren Magnotti, Pawing Open the Courthouse Door: Why Animals’ Interests Should Matter (2006), St. John’s L. Rev. 455, available at: https://www.animallaw.info/article/pawing-open-courthouse-door-why-animals-interests-should-matter.
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