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Legal personhood — the fiction that could save Antarctica

Lesai Seema
By Lesai Seema
16 Feb 2025
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If we can invent fictions that protect capital, contracts and corporations, then we certainly can invent one that protects a place that we already recognise as having intrinsic value and utility beyond human beings.

There are certain ideas so strange that their very strangeness becomes an argument against them. Extending legal personhood to Antarctica is one of those ideas. To many, it is the idle fancy of environmentalists, a concept too remote from the pressing concerns of industry and governance. The notion that a vast landmass with no permanent human inhabitants, no government, no economy in any traditional sense, could possess legal standing on its own behalf seems like an intellectual oddity.

But here’s the thing about the law: it is full of intellectual oddities that, over time, have become practical. Copyrights, for instance, are not alive and yet we speak with great seriousness about their lifespan. Corporations enjoy rights that in some places rival or exceed those of human beings. The entire foundation of modern contract law is built on the understanding that you can make a promise to an inanimate entity and that entity can, in turn, hold you accountable for breaking that promise.

In other words, the law has never been particularly fussy about whether something is actually a person when deciding whether it should have rights.

The fiction of personhood and why it matters


Legal personhood is not a recognition of inherent humanity or even sentience, but rather a tool that we use to make the world function in ways that align with our values and priorities. We grant corporations legal standing, not because they have intrinsic value, but because doing so makes economic transactions smoother. We allow trusts to hold property in perpetuity because it makes estate planning less of a nightmare. These are not natural facts; they are useful fictions.

When you think about it this way, extending legal personhood to Antarctica stops being absurd and starts being a reasonable ask. Because, right now, Antarctica only has the rights that we, as human beings, find convenient to give to it. It is protected only insofar as harming it would also harm a country, a corporation, or some other legally recognised entity. If no such entity has standing, if no nation or business is affected, then technically, legally, Antarctica itself does not have a claim.

But what if it did?

What it means to give Antarctica a voice


Giving Antarctica legal personhood does not mean giving it a passport or a tax ID number. It means, quite simply, giving it the ability to be represented in court as its own entity, to require justification from those who wish to exploit it, and to demand remedies when it is harmed. Specifically, this would mean that:

  • Antarctica, through those representing it, could institute legal actions on its own behalf, rather than relying on an affected country or corporation to do so;

  • In determining whether to grant legal relief, courts would be required to take harm to Antarctica itself (as opposed to those with interests in it) into account; and

  • Any relief granted would be granted to Antarctica, meaning that the continent, not an intermediary or guardian, would be the beneficiary of protective measures or reparations.


The consequences of recognition


Imagine a company that has caused ecological damage in Antarctica, perhaps by fishing for inordinate amounts of krill. Under the current system, if a company or fishing vessel causes ecological harm, the state that is responsible for it should take enforcement action. The injured party (Antarctica) has no recourse. But, if Antarctica were a legal person, the company would have to account to the continent itself. If it failed to do so, Antarctica’s representatives could take the matter to an international court, just as corporations, nations and other legal entities already do when their rights are threatened.

Would this be a radical change? Absolutely. But so was enforcing international human rights laws mere decades ago.

Read more: Recognising that nature has legal rights is a key step to slowing the degradation of our planet

At its core, this idea is not about sentimentality or even environmentalism (though those might be happy byproducts). It is about acknowledging that the law is, and always has been, a system of practical fictions. And if we can invent fictions that protect capital, contracts and corporations, then we certainly can invent one that protects a place that we already recognise as having intrinsic value and utility beyond human beings. 

It is at this juncture that the Antarctic Rights initiative, supported by a dedicated working group of scholarly, legal and scientific experts, continues the dialogue. The idea is relatively simple: recognise Antarctica as an autonomous entity with the right to have a say in decisions that affect it. And this is also where Rights of Nature stops sounding like a fringe thought and starts sounding like an actual governance strategy. Legal fictions and Rights of Nature operate the way that quantum mechanics does in physics: filling in the gaps where classical rules simply do not have answers.

But seriously, read the declaration. Let’s have a conversation. Because, if the law is just a story that we tell ourselves about how the world works, then why not tell a better one? DM

https://www.youtube.com/watch?v=REeWvTRUpMk

 

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