Granting rights to the living
Part of the translation of the text :
Faire droit au vivant
| 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)
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?
August 6, 2018 - by Mara Tignino and Laura
E. Turley
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
https://therevelator.org/rivers-legal-rights/
Home > Environment >
Environment: The Concept of Legal Personality – From
Companies to Natural Entities?
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 
community (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
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