Legal Personhood and Human Security

Questioning the subject of security

A case study concerning nature

Hester G. Mostert
S3009521

University of Groningen
RS: Voices, Silence, and Security
Dr. Xavier Guillaume
Due: 17/01/17
Introduction
Environmental concerns have become ubiquitous; yet, the rights and interests of nature often take
second place to those of humans. This is because nature is approached from a liberal, humanist
position where humans exercise dominion over nature. Nature is only seen as valuable if it can be
manipulated and exploited to our benefit. Even where nature is made the subject of security, it is
very seldom so. This is particularly evident in environmental security, where nature is securitized
but it is done with human interests at the forefront. That is not to say that the environment is not a
legitimate subject of concern. Rather, it is to say that the health of the environment has been tightly
linked to its effects on the ‘security’ of human beings (UNDP, 1994; Neff, 2002) while maintaining
the status quo of human superiority over nature.
Recently, counter-discourses have emerged. Since 2008, countries have begun to declare
specific and/or whole parts of nature as ‘people’ like in Ecuador, Bolivia, and New Zealand. This
previously unthinkable way to protect nature has become not only a reality, but is gaining currency.
‘Nature as a person’ challenges certain assumptions of sovereignty which humans thought they
had over nature because it recognises that nature has certain values in and of itself. In other words,
nature should be protected for reasons other than only providing benefits to humans. This work
argues that the ‘human’ aspect of security should be extended to include nonhuman entities as
current definitions are exclusive. This argument will be supported by a case study of a river in
New Zealand that became a person.
This work is located within critiques of human security as well as within post-humanist
engagements on the meaning of ‘human’ in a security context. This paper is novel in questioning
the (re)-production of power relations in human security through the concept of legal personhood
for nature. It contributes to counter-hegemonic discourses which reconceptualise the relationship
between humans and nature and security. It does so at a time when the world is facing potentially
catastrophic environmental threats. If the effects are to be mitigated and we (all species) are to
survive, we (anthropocene) must be clear in our policies and strategies about what is being secured.
Thus, a small step in establishing what ‘we’ might be is taken as security is pried open to consider
including nonhuman entities.
The empirical foundation is a mixture of primary and secondary sources. A single case
study is adopted to help generate knowledge that is relevant and could influence wider theory-
orientated debates (Lamont, 2015: 125). This work could contribute to wider discussions on how
‘human’ operates as a demarcated concept. That said, due to word count constraints this work is
restricted to considering only one instance of personhood for nature — the Whanganui River
Settlement Agreement (2012). As such, overall conclusions will be limited and recognises that
more research is required.
On terminology. Security is a promiscuous concept, whose meaning is somewhat slippery
(Zedner, 2009, p. 9-10). Knowing that, ‘security’ is defined as having both objective (Gasper,
2005) and symbolic (Zedner, 2009) meanings. When the verb ‘securitize’ or the noun
‘securitization’ is used, it should be read as something whose meaning is closer to protection rather
than an extreme form of politicization as defined by the Copenhagen School. As an ambiguous
term with multiple meanings (Paris, 2001, p. 88), this work treats human security in a similar
fashion to Gasper (2005) — a broad discourse which has discursive and political effects.
This paper proceeds as follows. Section one and two provide theoretical outlines which set
the context for the case study. The former explicates the key ideas that inform human security and
the problems imbedded in it, and the latter details the legal concept of personhood to apply it to
nature. The next section explores these main concepts through the New Zealand case study. It is
argued that human security prioritises the rights of humans over nonhumans and western beliefs
systems over indigenous ones.

The exclusionary function of ‘human’ in human security

All security approaches are human-centred (Booth, 1991) because humans are the only
conceivable locus of harm (Mitchell, 2014, p.7). Consequently, who or what is meant by ‘human’
in security frameworks has rarely been questioned. With the exception of feminist scholars like
Hudson (2005), Hoogensen & StuvØy (2006), and Robinson (2008) who question the what
constitutes the ‘human’ in security; it is evident that in dominant discourse of human security,
scholars mainly question which group of humans (e.g. children, women, refugees) should be
secured (see, for example, Bellamy & McDonald, 2002). The implicit understanding being that
the referent object is a human being. However, for some, nature is also considered a person. This
is fundamentally problematic for the field of human security not only because it assumes that the
‘human’ in human security has an established meaning but also because it is premised on
producing autonomous individual subjects through the utilization of nonhuman ‘resources’ for
human wellbeing (Mitchell, 2014, p. 7). Or as Mitchell put it, “they [proponents of human security]

3
attempt to secure human subjects by dominating nonhumans in the same way that states secure
their subjects by colonizing territory” (ibid). In this section, I critically engage with some of the
central ideas in the human security discourse and argue that failure to define ‘human’ in human
security, obscures an ordering principle that favours not only human beings but liberal, humanist,
conceptions of nature and security.
Dominant human security discourses’ uncritical use of ‘human’ in human security, has led
to a failure to acknowledge that the adjective can function as an exclusionary tool. Across the globe
there is a tradition of seeing and treating certain human beings as less than human. Just think of
foetuses, children, prisoners, slaves, and indigenous people to name a few. Feminist scholars like
Butler (2004) and Nussbaum (2006) have argued that the construction of ‘human’ has not
accounted for the conditions through which certain individuals are recognised, which has led the
category of human to be an exclusionary one. Similarly, human security’s reliance on the ‘human’
excludes nonhumans, which in this case, I argue, is the environment, or parts thereof.
Human security is premised on securing the individual human being as it is the end goal of
international politics (Tadjbaksh & Chenoy, 2007, p. 13). To sustain a ‘secure’ human,
instrumentalization of non-humans (e.g. plants, animals, rivers, and forests) is required, which
reinforces Barnett’s (2001, p. 122) claims that the environment is there for the security of people.
According to Mitchell (2014, p.8), human security is the zenith of anthro-instrumentalism as it;
“reduces the relations between humans and nonhumans to the mere satisfaction of the needs of the
former.” Hargrove’s (1992) work counters this to some extent in that it argues humans have the
capacity to recognise other values in nonhumans that does not include exploitation. Regardless of
the latter, there remains an inability to transcend the anthropocentric concept of nature as an object
which excludes nature from ever being considered human. Legal personhood helps to reconceive
nature but only to the extent that the recognition it gives, helps nature to be seen and valued.
‘Nature as person’, remains trapped in humanist logic which needs to legitimize the recognition of
the intrinsic value of nature through law.
The exclusionary function of ‘human’ in human security speaks to a larger issue. Seeing
the human endowed with rights above that of nature’s, leads to the legitimatization of certain types
of perspectives. For instance, the argument that human security protects the environment indirectly
— it is only through recognition of certain human rights that an alternative conception of
environment can be acknowledged. Only after human rights are upheld, can the environment be
legitimately recognised as having intrinsic value and a personality. It will be shown in the New
Zealand case, that Maori have long believed that nature is an extension of who they are — they
treat nature as part of their kin (Iron Magallanes, 2015; Morris & Ruru, 2010). However, the New
Zealand government could not formally recognise this until it had codified it into law, meaning
Maori’s view of nature could only be legitimated after the fact. Alternatively, if the government
had not upheld Maori’s human rights, which entailed an alternative approach to nature, it would
have continued to exclude this way of thinking and relating to nature. This affirms what Buzan
(2004, p. 370) has long warned against, which is when human security collapses all the referent
objects for security into one, it excludes the claims of both collectives and non-humans (e.g. the
environment). To this I add, collective ways of thinking.

‘Nature as person’ and the origin of Te Awa Tapua

In the previous section, I argued that within a liberal, humanist, understanding of nature, nature
only receives intrinsic value when it is recognized in legislation. This occurs when nature is given
personhood status.

The law and interests of legal persons

What constitutes a person has not just been a question for philosophers, but has also been posed
within western legal systems. The question of what rights and duties a ‘person’ has, also
accompanies this thinking. Most legal systems draw a distinction between natural and judicial1
persons. The former, a human being and the latter, mostly a non-human entity2 such as a ship or a
company (Berg, 2007). This section focuses on the judicial person.
A judicial person is an entity that has acquired legal personhood status or a legal personality
within a national legal system (Berg, 2007). Currently, there is no official international legal
instrument that works with a legal personhood approach (Shelton, 2015). Within these national
systems, legal personhood is a subject that sits on the periphery and thus has been ignored and/or
neglected outside of the corporate context (Berg, 2007, p. 270). In the countries where their legal
system allows for the existence of a judicial person there are usually well defined rights and duties

1
Instead of judicial the term juridical can also be used in its place.
2
According to Berg (2007), a juridical person may also be genetically human.

5
for these entities. The question is why the environment or objects in the environment cannot have
the same, or similar rights and duties as bestowed upon them?
Whatever the reason for according personhood status to a non-human entity, it is ultimately
a deliberate policy choice (Shelton, 2015). Western legal systems are largely designed around a
singular focus — the rights of human beings. Non-humans are not admitted. To protect things, the
law can extend some human rights to non-human entities (Berg, 2007). This is important,
especially in the rights hierarchy of law, where human beings are given the highest priority
(Shelton, 2015). A choice to give a natural object human rights would be done to try and elevate
the status of the non-human entity in law. Therefore, to grant legal personhood can only be a
conscious and deliberate political act. On the surface, it may appear to give priority and protection
to someone/something which is currently deemed to be in need of rights, and by extension
protection, not addressed by an existing legal system. But, it should not be forgotten that the legal
system is ultimately designed for humans, so when legal personhood is given it is done either for
practical reasons such as giving actors the right to make claims and/or sue or because failure to do
so undermines or threatens a natural person’s rights (Berg, 2007, p. 382). This is precarious
because what about the interests, rights, and duties of the non-human entity?
A judicial person’s rights are hardly ever discussed or considered because non-human
entities are not conceived of as having a moral status and therefore having no interests (Berg 2007).
However, having interests are important because interests are used to measure the capacity for an
entity to have a stake in something which in turn is reliant on that entity being sentient. The general
argument that has been put forward is that legal personhood status can be accorded when an entity
has the capacity to claim rights for themselves, for their own welfare (Steinbock, 1992 as cited in
Shelton, 2015). In the absence of this, a non-human entity cannot become a legal person because
it is not in a position to protect itself by invoking rights on its own behalf. The implication being,
if rights cannot be accorded based on the interests of the entity itself, it has to be done based on
the interests of others (Shelton, 2015). This results in a restriction of legal personhood based on
the self-expressed interests of an entity is vastly different than legal personhood based on the
interests expressed by natural persons (ibid). However, there are inherent problems as non-human
entities do not speak… especially not from a liberal humanist standpoint.

A Legal Justification for the Rights of Nature

It seems odd to give the environment human rights when there are environmental protection laws.
According to the first legal argument to grant natural objects human rights, environmental laws do
not afford the same protection as human rights. In, “Should Trees Have Standing?” Stone (1972)
outlines the legal operational aspects of why the environment should have human rights. For him,
the environment is not a rights holder for three reasons: One, it does not have legal standing (1972,
p.463). Two, merits cannot be directly rewarded to it as the interests of third parties are the only
way in which merits and interests can be determined and awarded on, and third, the environment
is not in a position to be a beneficiary, meaning the environment cannot directly receive restitution
(ibid, p.466). Without these, the environment is neither of direct concern nor in a position to ever
have legal recognition on its own terms. It will always be in a subordinate position to natural
persons.
However, there are ways to rectify the problem. Stone proposed, that legal standing is
possible for the environment if a guardian can be appointed so it can have someone to speak for it
(1972, p. 463). For the courts to provide legal relief, injury can be considered and amends can be
made when the environment is given priority rights (ibid, p. 465). Lastly, to gain relief, the law
can give procedural protection to it. Thus, the rights of non-humans will be basic civil rights of
representation and landownership. Those will not be the full range of human rights as laid out by
the United Nations Universal Declaration of Human Rights. However, the rights will be provided
under common laws of a country, and sometimes are given by making constitutional changes. This
was the case in Ecuador and Bolivia (Shelton, 2015). New Zealand does not have a constitution,
so the rights granted to The Whanganui River, or the legal entity known as Te Awa Tapua, was
introduced though parliamentary legislation.

How a river became a person in New Zealand

Thus far, this work has argued that the environment is not the referent object of security and while
legal personhood can be used to elevate the status of natural objects, nature still fails to become
the referent object. The following case study shows how the Whanganui River/ Te Awa Tapua
became a judicial person primarily to resolve a long standing territorial dispute which had denied
Maori human rights. Only after recognising Maori’s unique relationship to the land, forests, and
waterways of New Zealand, could protection of the environment be reimagined. The following
sections explains.

7
 Breaching ‘human’ rights
The case for personhood for the Wanganui River/Te AwaTapua was not, as some would like to
believe, an initiative that came about to protect the environment. Rather, the case for personhood
was proposed as a means to settle New Zealand’s longest court case regarding Maori land claims,
which stemmed from the violation of the Treaty of Waitangi, dating back to 1840.
The Treaty of Waitangi is regarded by some as the most important treaty signed in New
Zealand history. It has defined Maori-Crown3 relations, especially with regards to land and
resources rights, since its inception. On February 6, 1840, Lieutenant Governor William Hobson
met with various Maori chiefs from all over the North Island of New Zealand, in the Bay of Islands,
and signed a treaty that established the British government in, and sovereignty over, New Zealand.
The treaty recognised Maori ownership over lands and forests, and gave Maori rights as British
subjects. Maori, for their part, ceded to Queen Victoria, granting her the sole right to purchase
land. Or so the text of the treaty made out.
Two problems occurred. One, with the wording, and two, with the upholding of the texts.
The word ‘sovereignty’ and its translation in the two versions of the treaty, the Maori and English
versions, is problematic. From the Crown’s perspective, Maori gave Britain sovereignty over New
Zealand but from the Maori perspective, all they did was give Britain and the Governor General,
the right to governance in return for protection. Maori argue that they did not give up authority to
manage their own affairs. Rather, Maori thought they were retaining tino rangatirtanga
(sovereignty) over their whenua (land) and taonga (treasures). According to the English version
of the treaty, sovereignty changed hands but Maori still held full exclusive rights and possession
of their lands, estates, forests and fisheries, and other porters. The problem was that the Crown
took full control and possession of all land, rivers, and resources, violating the conditions of the
treaty. Ever since, Maori all over New Zealand, including the Whanganui iwi (tribe), have been
trying to get the Crown to honour the treaty.

The Dissenting Opinion

3
When reference are made to the Crown, it is done to indicate the British monarchy, which is the ruling authority in
New Zealand.
With regards to the Whanganui River, the local iwi, Atihaunui, have been fighting with the Crown
since 1887, when they first petitioned Parliament (Finlayson, 1999, p. xiii). Legal proceedings
followed in 1938, but did not progress far. Then, in 1999, the Waitangi Tribunal, a non-binding,
permanent commission of inquiry that investigates and makes recommendations on claims of
violations of the Treaty, released the Whanganui River Report. The report found the Crown to be
in breach of the Treaty on nine points, including: failure to recognize the customary rights of the
Whanganui iwi, the destruction of the lifestyles and economy of the iwi due to the management of
the river, failure to protect the river and its natural resources from pollution, the assumption of
ownership over parts of the river, and failure to give the river rangatiratanga (absolute sovereignty)
(ibid, p. 375-376). To remedy these breaches, several recommendations where put forward.
Among them that the Crown give recognition to the river in the form of a legal personality and
further, that the river to be managed not only for the benefit of the local iwi and the wider
community, but for the benefit of the river itself (ibid, p. 376). This matched one of the Tribunal
members, John Kneebone’s, opinion, which echoed the arguments laid out by Stone (1972), but
within the context of the Whanganui River.
Kneebone, gave his dissent by first acknowledging and agreeing with the report and the
opinions laid out within it, but ultimately disagreeing with the remediation. According to
Kneebone, (1999, cited in Finlayson, 1999, p. 346), the management and control of the river
required recognition of the complexity and different physical components of its parts, and thus
management should extend not just to the riverbeds, but to the river banks and beyond. Kneebone,
distinguished the management and control of the river, by separating the free-flowing body of
water and its trench/bed (ibid). On this basis, he claimed that neither Maori nor the Crown can own
the water, but that they could jointly (representatives of both the Wanganui iwi and the Crown)
share the riverbed and its resources, by creating an entity that could be subject to landowner rights.
In doing so, Kneebone was the first person to make a recommendation for legal personhood for
the Whanganui River.

Environmental laws are not enough

About eleven years after the Whanganui River Report was released, the idea of granting the
Whanganui river legal personhood was resurrected. This time, it was done in the light of New
Zealand’s environmental laws, because despite Kneebone’s Stone inspired argument, the question

9
remained, if the Whanganui case was truly about the environment. Why were New Zealand’s
environmental laws and regulations not sufficient? According to Morris and Ruru (2010), current
legal mechanisms are sufficient to protected the environment from a liberal, humanist conceptions
of protection. New Zealand environmental laws tend to limit Maori knowledge and involvement
in the management and control process, and ultimately do not share the same view on what
constitutes pollution and by extent harm (ibid). While many of the Treaty of Waitangi claim
settlement statutes make legislative acknowledgements with regards to Maori’s special
relationship with water, these have never advanced further than acknowledgments. (Morris and
Ruru, 2010). This being tantamount to empty words then. Therefore, Morris and Ruru argue that
many of New Zealand environmental laws “fail”, because no link between Maori legal systems
and the state legal systems are created.
In other words, Maori’s cosmology differs from the liberal, enlightening view of nature
held by the Crown. Where the latter would separate humans and nature and presume sovereignty
over it, the former approach the relationship between humans and nature as symbiotic. For Maori,
nature is not just a resource that sustains life by providing food and shelter but is part of who they
are. Nature is an ancestor (Irons Magallanes, 2015). As such, a river is not an inanimate object,
but a sentient entity, carrying the spirit of an ancestor with them. Any pollution or damage to the
river, is not just a contamination of a waterway but damages the health and wellbeing of kin. For
example, if another water way was introduced into the Wanganui river, for Maori, this is seen as
a form of pollutions because two different life forces are seen to be getting mixed (ibid). Therefore,
when Morris and Ruru stated that no link between Maori and Crown legal systems have been
made, they mean that despite the state recognising Maori’s cosmology, there has been no attempt
to approach the protection of New Zealand’s natural environment from the indigenous people’s
perspective. Failure to do so, would indicate, that the dominant perspective of nature prior to the
Wanganui River Agreement in 2012, was one of subordination of the Maori —acknowledgement
of holding a different relationship to nature and the right to engage with nature in keeping with
their ways, was legally supressed.
When faced with the question why did a river in New Zealand become a legal person, the
answer is not straightforward. It was not to protect the environment, but rather, it was a way in
which to settle Maori grievances stemming from the violation of the Treaty of Waitangi, and by
extension, upholding the human rights of Maori. Only through the legal recognition of Maori
cosmology, inclusive of a view that personified nature, could the Crown redress past wrongdoings
and restore indigenous control over parts of nature. With Maori’s approach to nature now on equal
footing with that of the Crown, conservation and protection of the environment must be rethought.
As Irons Magallanes (2015) pointed out, while humans still have legal control over nature, it is
now done within a framework which recognises the intrinsic rights and interests of nature, with
humans acting as the guardian of nature. The wording of the Whanganui River Settlement
Agreement reflects this as the river is no longer an inanimate object, rather it is a living and legal
being, Te Awa Tupua (2012, p.10). It is an “integrated, living whole from the mountains to the
seas,” and as such, it has legal standing and an independent voice, whose status, health, and
wellbeing will be guarded by Te Pou Tupua, its new guardians (ibid, p.5). Te Awa Tupua cannot
be owned and its guardians, who act and speak on its behalf, will carry out landowner functions
according to the New Zealand Land Act 1948 (ibid, p.10-11).

Conclusion
This work began by stating that the environment is not the referent object of security, even when
a title like ‘environmental security’ suggests so. The true subjects are human beings and this is
made obvious in areas like human security. Section one showed that human security has never
really defined what is meant by ‘human’. It always assumes that the ‘human’, in human security,
is a natural human being. This makes it inherently exclusionary which is problematic as objects in
nature have begun to be personified in law. It was concluded, that a liberal, humanist perception,
human security excludes nonhuman entities because they cannot conceive the status change in
natural objects.
Section two, demonstrated the extent to which a liberal, humanist perspective can
acknowledge the intrinsic value of nature. It is possible for natural persons to acknowledge that
nature has some value in and of itself, which should be protected. This is where I introduced the
concept of legal personhood. Legal personhood can be applied to nature to protect it, as the New
Zealand case study proved, but this is effective because it still prioritizes human interests over
nature’s. Although it may appear as if legal personhood offers protection to the environment on its
own terms, the reality is that legal personhood for natural objects cannot extend beyond a
biocentric aspiration in this context. This is due to the need for additional reasoning to accompany

11
it, such as upholding Maori human rights. It can be said that legal personhood legitimizes human
security’s main priority, securing human interest and needs first and foremost.
The Whanganui River case study section, brought together the arguments made in the
previous sections and illustrated that the exclusion of natural objects from human security has
resulted in the exclusion of things such as indigenous people’s rights and their belief systems.
Currently, in order for indigenous voices and belief to be heard they had to be filtered through
principles of western law before they could be legitimately received and acknowledged. This
shows that nature has been subordinated to human interest — typically that of the government,
which reflects the suppression of a way of living and conceiving of the world.
Because dominant human security discourses have not clearly demarcated what it means
to be ‘human,’ there is space to widen the concept to include nonhuman subjects. However, that
would require rethinking some of the key aspects of human security because the inclusion of non-
human in the definition of ‘humans’ demand that their interests not be subordinated to the interests
of natural persons. The rights of the environment and the rights of humans must not be reducible
nor must one be prioritized over the other. In those circumstances, it becomes possible to see
personified objects within a security framework, albeit a widened framework. Furthermore, if
human security is widened as has been suggested here, there is an opportunity to include previously
excluded ways of thinking about the relationship between nature and humans which might open
new ways of thinking about security. This may provide helpful insights into nature conservation
as well as into concepts of security that would require more holistic understanding of security
which, in this context, speaks to more complex interconnections between humans, nature, and
security.
The work of Audrey Mitchells’ (2014) ‘worldly approach’ to security concepts, might
already prove to be helpful with the latter. In her work, she reimagines the relationship between
humans and non-humans and argues that the everyday is composed of different worlds, comprised
of diverse beings. When harm is done to a human or non-human, harm is done to the world in
which the entity(ies) are in — harm done to one is harm done to all. This approach presents itself
as being more holistic, more capable of addressing the challenges facing international security. It
presents itself as a sort of panacea for all the world’s ills but offers no indication of what policies,
which are to incorporate such ideas, are to look like. Needless to say, further research and
discussions are required.
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