Body products, including blood, gametes, and kidneys, are a routine part of contemporary medicine. They are also controversial. There is a strong preference for donated gifts, based on an intuition that gifts are pure, altruistic, and healthy, and that purchased products (commodities) are tainted, exploitative, and dangerous. Law and policy reflect this dichotomy, preventing market exchanges either by declaring body products non-property or banning sales by the supplying body. Yet with growing scarcity leading to injustice in the allocation and harvesting of body products, calls to allow sales have been increasing, motivating proposals to increase supplies by compensating bone marrow and breast milk suppliers.
This Article contributes to these pressing debates in two ways. First, it uses original historical research to demonstrate that the morally inflected gift/commodity dichotomy is a historical artifact, neither universal nor inevitable, and thus need not be the assumed basis for law and policy. Second, in a novel use of the intellectual history of property, it brings body products for the first time into the framework of recent progressive property scholarship to rethink body property …
‘A Case for Granting Legal Personality to the Dutch Part of the Wadden Sea’ by Tineke Lambooy, Jan Venis and Christiaan Stokkermans in (2019) 44(6) Water International 786 comments
The Wadden Sea is the largest unbroken system of intertidal sand and mud flats in the world, with natural processes undisturbed throughout most of the area. It is rich in biological diversity. This World Heritage area encompasses over a million hectares and covers a multitude of transitional zones between land, sea and freshwater environments (UNESCO.org,). The Wadden Sea is shared between the Netherlands, Germany and Denmark. Below, any reference to the Wadden Sea is to the Dutch part of it only (except where the contrary is evident).
The people of the Netherlands highly value the Wadden Sea. It was voted the most beautiful nature area of the Netherlands (UNESCO, 2016; NRC, 2016b). The Dutch Wadden Islands, the Wadden coast and the Wadden Sea draw millions of tourists every year, who enjoy its vastness and tremendous biodiversity. The Wadden island of Texel made it into the Lonely Planet 2016 Top 10 Europe Destinations List (NRC, 2016a; NL Times 2016) for its ‘unspoiled dune landscapes’, ‘wildlife reserves’, ‘gloriously deserted white-sand beaches’ and ‘pine forests’. A natural area that is both beautiful and unique, the Wadden Sea is alive. Twice a day it breathes in and out, with high and low tide.
Dangers such as economic activity and splintered governance are threatening the area. In response, two of us were involved in a proposal made last year to grant legal personality to the Dutch Wadden Sea (Van de Venis, Lambooy, & Berkhuysen, 2018). The objective of that proposal was to maintain the ecosystem in a healthy condition for future generations. The proposal was inspired by an emerging international trend of granting rights and legal personality to important ecosystems such as a river or mountainous area.
More recently, on 20 June 2019, the Dutch Government presented an initiative for rapid improvement of Wadden Sea management. It proposes the creation of a Wadden Sea Management Authority (Beheerautoriteit Waddenzee) to enhance cooperation and mutual consultation between various authorities involved with the Wadden Sea. As welcome as this first step may seem, it may not suffice to address the Wadden Sea’s challenges in the middle and longer term. On 12 July, the municipality council of Noardeast-Fryslân, which encompasses and borders a large part of the Wadden Sea, adopted a motion calling for more rights for the authority. The motion calls for the Wadden Sea to be granted its own and independent identity and place in the Dutch legal system, similar to a municipality or company (Omrop Fryslan, 12 July 2019).
With all this in mind, the following will be discussed below. First, we provide some more background on the Wadden Sea, its attractions, protection and challenges and highlight some international precedents on the granting of rights to nature. After that, we explore the concept of legal personality under Dutch law and make the case for a novel type of legal person – we call it a ‘natureship’ (natuurschap). This type may be well suited for both the Wadden Sea and other Dutch natural areas deserving a similar level of protection and governance. In the concluding part of the article, we summarize our findings and discuss the opportunity and need for further research on this topic.
