Legal Personhood for Non-Human Entities – The Future of AI and Environmental Rights

Legal personhood is a ‘fundamental concept’ in Western law and is most commonly understood as ‘beings that hold rights and/or duties’ or possess the ‘capacity to hold rights’. At first glance, legal personhood appears to be a rigid concept, suggesting that only humans can possess that right. However, what constitutes a ‘legal person’ is a social construct that has evolved over time. Historically, it has been shown that legal personhood can be ‘weighted towards gender, race, ethnic or national origin’. Consider the case of Dred Scott v Sandford (1857), which ruled that ‘African Americans, enslaved or free, could never hold standing in a court of law as legal persons.’ Only with the 14th Amendment to the US Constitution were all Americans granted the right to be recognised as legal persons.

Consequently, since legal personhood can obscure human identity, it is conceivable that non-human entities might qualify for such status. As Jens Kerkston notes, ‘the recognition of nonhuman actors as legal persons with subjective rights’ is not a novel concept. Legal personhood has been granted to non-human entities before, as seen in corporations and joint ventures. This article examines the evolution of legal personhood and its potential growth concerning two particular entities: nature and AI.

Nature
The assumption that natural objects were merely ‘property to be exploited’ was first challenged in 1972 by Christopher Stone. He believed that the environment should be regarded as a ‘subject and given legal personhood…with human guardians able to seek legal redress if a natural feature is damaged or destroyed.’ Globally, the legal personhood of nature varies from country to country; however, this article will concentrate on the US, Ecuador, and New Zealand.

The US
Many argue that the US can be considered the ‘catalyst for these recent changes worldwide’. In 2006, in Pennsylvania, a community called Tamaqua Borough collaborated with the Community Environmental Legal Defense Fund to draft legislation to ‘protect the community, and the environment, from the dumping of toxic sewage.’ This action served as the ‘inspiration for the constitutional activity in Ecuador’.

In addition, the 2006 Act motivated US government entities to establish certain rights relating to nature preservation. For example, ordinances have been enacted in Pennsylvania, Maine, New Hampshire, and California. Additionally, in 2010, Pittsburgh became the first major city in the US to recognise the rights of Nature.

Ecuador
‘Ecuador was the first country in the world to accord legal rights to nature’. In 2021, Ecuador’s Constitutional Court ruled that mining in the Los Cedros Protected Forest violated the constitutional rights of nature. This measure sought to protect the forest from activities that would damage biodiversity and endanger species at high risk of extinction. Moreover, this ruling was not limited to this specific forest or protected areas; instead, the court expanded the constitutional rights to encompass the entire territory of the country.

Thus, under Chapter 7, articles 71 to 74, the Ecuadorian constitution acknowledges Mother Earth's rights to ‘maintain and generate its cycles, structure, functions…’ As scholar María Valeria Berros emphasises, this clarifies that ‘the State shall give incentives to natural persons and legal entities and communities to protect nature and to promote respect for all’ components of an ecosystem.

New Zealand
In 2017, the Te Awa Tupua (Whanganui River Claims Settlement) Act granted the Whanganui River legal personhood, signifying a revival of nature's rights in public discourse. This designation means that the river possesses ‘the rights, powers, duties, and liabilities of a legal person.’

The motivation was a ‘treaty settlement between the Government and the Māori people’, aiming to adapt the common law to better honour and reflect indigenous legal frameworks. The Māori people of the river have ‘an ancestral connection with the River’ that predates the colonisation of New Zealand. As such, the Waitangi Tribunal found that there was an ‘inextricable connection between the river and its people’ and that land was not viewed by them as a ‘tradable or disposable item’. This perspective was later enshrined in the Whanganui River legislation: ‘Ko au te Awa, ko te Awa ko au.’ ‘I am the River, and the River is me.’

Artificial intelligence (AI)
AI ‘encompasses an array of software’ that ‘can learn and improve’, meaning it is ‘on its way to meeting and exceeding human cognitive abilities.’ Although AI has existed in various forms for decades, most people became aware of it only in 2022 through the creation of ChatGPT. As of this year so far, ChatGPT has averaged ‘123.5 million daily active users (DAU)’.

Discussions of AI gaining legal personhood are not new. In 2017, Saudi Arabia ‘granted citizenship to [a] humanoid robot’ (a chatbot) called ‘Sophia6’. However, in addition to these seemingly trivial efforts, there have been growing genuine attempts to confer legal personhood upon AI. For instance, in 2017, the European Parliament adopted a resolution urging its Commission to consider creating ‘a specific legal status for robots’ to make them liable for any damage they cause.

Is it possible for AI to qualify for legal rights personhood?
The law identifies two types of ‘people’: natural persons (humans) and juridical persons, which are ‘non-human entities that are granted certain rights and duties by law’ (corporations). AI does not seem to fit completely into either category. This is because it is neither human nor entirely non-human, as it possesses the ability to generate its own material, as demonstrated by GenAI. Hence, it is suggested that if AI were to gain legal personhood, a ‘third category’ would need to be established in order to protect its ‘physical integrity’ and ‘self-determination.’

Potential Intellectual Property (IP) Implications
Currently, only humans are eligible for IP protection, while AI is viewed as property. As a result, any output generated by AI is regarded as owned by the individuals who developed and coded it. If AI were to receive legal personhood, it could assert ownership over its creations. Consequently, if AI becomes ‘truly sentient, it could be considered a form of intellectual slavery.’

Conclusion 
The legal personhood of nature has a clear path for expansion, but the future of AI remains uncertain. Nature’s recognition stems from environmental and indigenous rights, whereas AI poses more complex questions that have yet to be addressed: matters of responsibility and autonomy. Thus, conversations regarding its legal and ethical status will intensify as AI develops, compelling us to rethink traditional legal frameworks.

By Amelia Pettit