Des droits pour les fleuves transfrontaliers ? La gouvernance du Gange en question

This study touches on two decisions of March 2017, by which the High Court of the State of Uttarakhand, in Northern India, gave legal personhood to the Ganges and Yamuna Rivers, and provided them with their own set of legal rights. It aims to assess the impacts of this judicial milestone in terms of governance, focusing on river protection standards, on legal and administrative adjustments, as well as on the reconfiguration of relationships between various stakeholders, from public authorities to local communities. The main issue pertains to the specific challenges that are raised by the Ganges and Yamuna Rivers, given the fragmentation of the territories they cross (the Ganges runs over two countries and five Indian federated states) and the design flaws that undermine their legal status. By bringing out the defects and shortcomings of the High Court's decisions, and by consistently drawing a comparison with the more advanced example of the Whanganui River in New Zealand, this paper attempts to determine the criteria for fair and sustainable governance in the case of transboundary rivers, should the latter have been granted legal rights. Firstly, it appears that the Ganges and the Yamuna cannot sustain straightforward legal relationships with other legal entities, due to a lack of specification with regards to the rivers? rights and obligations. At no point does the High Court clarify what a river?s legal obligations could be. Nor does it enumerate the specific rights a river could avail itself of: the Court only equates the rivers? rights with those of other living entities and with human rights, at the risk of depriving the Ganges and the Yamuna of any new ecological protection standard. Entitling them with some new form of right to life, or with regular procedural and property rights, as is the case for the Whanganui River, might have represented preferable options. The latter choice would have clarified the interactions between the two new legal entities and the other stakeholders. Secondly, the persons who have been appointed as legal representatives for the Ganges and the Yamuna Rivers seem to have been selected improperly. Most of those guardians are state officials of the State of Uttarakhand. While this might have been the High Court?s only way forward, it remains a rather unpractical solution with regards to the transboundary nature of the two rivers. Their statutory representatives may indeed be required to administrate parts of a river basin over which the State of Uttarakhand has no jurisdiction whatsoever. Conversely, they could be held accountable for cases of pollution or mismanagement occurring outside of this particular State?s territory. This has been the gist of the respondent State of Uttarakhand?s argument when it has appealed the High Court?s decisions, and it has been accepted by the Indian Supreme Court so far. Thirdly, the lack of representation of local communities within the body of statutory guardians is likely to bear a negative impact in terms of river management. Indeed, appointed state officials are subject to hierarchical pressure, often contradictory mandates and potential conflicts of interest. They do not reflect the diversity of interests that revolve around the river basin, even less so as the Ganges and the Yamuna are increasingly being appropriated by Hindu nationalists for political and religious purposes, which can tend to exclude various minorities from traditional uses. Once more, legal representation of the Whanganui River in New Zealand is far more elaborate. And in India, while resorting to Public Interest Litigation may allow rank-and-file citizens to maintain some control over river governance, their standing to do so could be watered down by that of the newly appointed guardians, who are supposed to act in loco parentis on behalf of the rivers. In conclusion, fair and sustainable governance of transboundary rivers that have been granted rights requires that those rights be clearly defined and specific to them, that their legal representatives be empowered to administrate their whole basins, and that all relevant stakeholders be represented within the body of legal guardians, as is the case with the Whanganui River. This tends to show that the rights of Nature can only be fully effective and enforceable if there has been a preliminary reflection on institutional environmental governance and stakeholder dialog ? which has proved insufficient in the Indian case. New natural legal entities are likely to be better protected and better managed when they are incorporated in preexisting legal and administrative frameworks, rather than simply superimposed over them.