A multidisciplinary perspective on the natural quality and rights of river systems: Would granting legal rights to the Ems-Dollard estuary in Northwest Europe benefit the natural system?

Abstract

Granting rights to nature or legal personhood to natural objects as a means to improve the position of nature relative to other (societal or economic) interests has increasingly gotten attention worldwide, but thus far, there are no precedents of rights of nature in Europe. The debate mainly concerns the legal or socio-cultural implications of rights of nature, while a scientific perspective on the matter is still lacking. This study focusses on a transboundary river system in northwest Europe, the Ems-Dollard, where the deteriorated (eco)system has become subject of restoration and re- naturalisation plans under the EU Water Framework Directive and Habitats and Birds Directives. Over centuries, the shape of the estuary was formed and evolved under (indirect) influence of anthropogenic activity. Since the 19th century however, construction works such as weirs and deepening and straightening of channels, have altered the riverine and estuarine system beyond its natural hydromorphodynamic balance. Hyper-turbidity and a deteriorated eco-system are among the most prominent consequences. The processes and characteristics of a naturally functioning Ems- Dollard are determined and form the “needs” of the natural system on which legal rights can be based. The natural reference state or “well-being” of the Ems-Dollard, which is the aim of granting rights to nature, is difficult to define because of the long history of human influence on the natural system. Governance and management of the Ems-Dollard is a complicated affair because of the disputed border area, the different administrative levels in Germany and the Netherlands and conflicting interests of nature, society and economics. Current policy and legislation aim to find a balance between re-naturalisation and (socio-)economic interests. Nevertheless, navigation to the harbours and an inland shipyard requires an increased channel depth and weighs heavily in the balance of decision-making. Compliance with the EU Directives has proven difficult to achieve. Shortcomings of EU directives and legislation are discussed and include the insufficient representation of hydromorphodynamics and inadequate standards for the areal extent of protected habitats. The possibility of granting legal rights to the natural system of the Ems-Dollard was investigated to see whether this could contribute to present attempts to mitigate problems and ameliorate the state of the Ems-Dollard. On the basis of examples of rights of nature and legal personhood in other countries, opportunities, limitations and implications of (i) Custodianship, (ii) Acknowledgement as a natural entity and anchoring rights in legislation, and (iii) Legal personhood are discussed. Given the framework of European and national legislation, the most feasible option for the Ems-Dollard was found to be improvement of legislation in terms of warranting the naturalness of the riverine and estuarine system. The findings of this study and the state and future of the Ems-Dollard are discussed from a multidisciplinary perspective, that includes contemplation of the role and influence of humans in a natural system, the view towards the naturalness of the system, and whether Science should concern itself with such matters. Perhaps the greatest challenge for the future of the Ems-Dollard is to define what its natural reference state should be, given its history and ongoing human presence. This requires interdisciplinary understanding and arguments of all aspects of the system ranging from Earth Sciences to Law, policy-making and even Philosophy. To aid future discussion, this report brings together background information from these fields of expertise.