Earth Law Center Blog
The Global Plastics Treaty and "Plastics Justice"—A Primer
Led by Ocean Program Director Rachel Bustamante, Earth Law Center (ELC) recently released a report entitled “Advancing Ocean Justice in the Global Plastics Treaty.” You can find more information, including links to the full report and a related press release, on ELC’s Ocean Plastics webpage. In this blog post, we break down some key terms and concepts related to plastic pollution, the Global Plastics Treaty, and plastics justice, ending with ways that anyone can get involved in this critically important issue.
Led by Ocean Program Director Rachel Bustamante, Earth Law Center (ELC) recently released a report entitled “Advancing Ocean Justice in the Global Plastics Treaty.” You can find more information, including links to the full report and a related press release, on ELC’s Ocean Plastics webpage.
In this blog post, we break down some key terms and concepts related to plastic pollution, the Global Plastics Treaty, and plastics justice, ending with ways that anyone can get involved in this critically important issue.
What is the Global Plastics Treaty?
The Global Plastics Treaty (GPT) is an international agreement currently being negotiated at the United Nations (UN), with the treaty process having been launched in March 2022 by a resolution of the UN Environment Assembly (UNEA). Its Resolution 5/14 calls for the development of “an international legally binding instrument on plastic pollution, including in the marine environment, . . . which could include both binding and voluntary approaches, based on a comprehensive approach that addresses the full life cycle of plastic.”
This treaty process represents an unprecedented opportunity to address the plastic crisis.
What is the scope of the plastic pollution crisis?
Plastic pollution is severe and widespread. Across their full life cycle (production, distribution, use, and waste), plastics cause damage to people and Nature. For instance, 99% of plastics are made from fossil fuel-based polymers and require greenhouse gas emissions in their production. Then, plastics result in further emissions as they are trucked or shipped to industries and consumers.
Plastics contain harmful chemicals, including known cancer-causing agents (carcinogens), and plastic waste pollutes the environment and can be harmful or deadly to wildlife that ingests plastics or gets tangled in them. Plastic pollution occurs both at the macro-level, such as plastic bags blowing around a city block or discarded fishing nets floating in a river or ocean, and also at the level of microplastics. These tiny plastic particles are now so widespread they have been found in everything from remote alpine raindrops to the bloodstreams of wildlife to a rising percentage of human placentas.
Microplastics have also been found in every ocean basin, and plastics represent a particular threat to ocean life and ecosystems. For a more in-depth take on the research and details of this issue, we suggest reading “An Earth Law Solution to Ocean Plastic Pollution” by Michelle Bender. “Plastic fragments can transport contaminants, increase their environmental persistence, and concentrate organic pollutants up to 106 times that of surrounding seawater,” she writes. “The chemicals present in plastic pollution, such as PCBs, lead to reproductive disorders or death, increase the risk of diseases, and alter hormone levels.”
While plastics impact virtually every ecosystem and human being, it is clear that disproportionate negative impacts occur to the ocean and across race, occupation, ethnicity, class, gender, and age—which leads us to the topic of plastic justice.
What is plastic justice?
The term “plastic justice” points to the reality that the harms caused by the full life cycle of plastics disproportionately impact the ocean and marginalized communities, and so a just response requires attending to those disproportionate impacts.
To take one example: enormous amounts of plastic are dumped into the ocean every year. These plastics not only harm and kill fish and other sea life but also wash up on the shores of island and coastal states, such that impoverished communities suffer the health and economic consequences of plastics they neither produced nor used.
Plastic justice is comprised of three main elements:
the protection of the ocean
the fulfillment of human rights
the progression of social equity
ELC’s report introduces plastic justice in much more detail and maps the communities most burdened by plastic pollution, including Small Island Developing States, Indigenous Peoples, People of Color, the Global South, youth, and other marginalized communities.
How is the Global Plastics Treaty being negotiated?
More than 160 countries participate in the process, which is being overseen by a body called the International Negotiating Committee on Plastic Pollution (INC). The development of a draft treaty takes place through a process of comment and revision, punctuated by multiple rounds of in-person negotiation.
Three rounds of negotiation, held in Uruguay, France, and Kenya, took place in 2022 and 2023. A fourth (INC-4) will take place in Ottawa, Canada from April 23 to 29, 2024. A fifth and likely final round of negotiations (INC-5) is scheduled for November 5 to December 1 in Busan, South Korea, with plans for treaty adoption in 2025.
What is (and isn’t) in the current draft of the Global Plastics Treaty?
As it stands, the treaty text combines a blend of binding and voluntary targets. Following the last session of negotiations (INC-3), substantial diverging views on the scope and ambition of the agreement caused the now Revised Zero Draft to grow almost three times in size, aiming to accommodate all of the inputs of countries. This means that provisions across the six parts, which cover issues including microplastics, addressing existing pollution, preventing new pollution, a just transition, waste management, and implementation, currently include a range of options for countries to discuss at INC-4.
Though some countries have advocated for limiting the scope of the treaty to cover only pollution or waste management, Resolution 5/14 mandates the agreement cover the full life cycle. Currently, there are no provisions to reduce plastic production at a global level or protect against biodiversity impacts, nor are there numerical targets that mandate a specific timeline for implementation.
Although an international treaty on plastic pollution is an important step and much progress has been made toward it, it’s disheartening to see that the current draft lacks a binding obligation for treaty signatories to protect human rights. It lacks even a single instance of the word “justice,” much less a substantive incorporation of justice principles and human rights.
Earth Law Center's Report: Highlighting the Need for Ocean Justice
ELC’s report, “Advancing Ocean Justice in the Global Plastics Treaty,” emphasizes that ocean justice is crucial for achieving an effective agreement. With the next round of negotiations scheduled for April in Ottawa, Canada (INC-4), this report can serve as a vital advocacy tool, highlighting how the full life cycle of plastics disproportionately harms the ocean and marginalized communities and thus demands a response grounded in justice.
The report includes geographical and sectoral survey findings—highlighting, for instance, that support for including human rights in the final treaty was notably strong among African and Latin American countries, and that large majorities of surveyed representatives of government, nonprofit organizations, academia, and business support using Rights of Nature principles to help guide the treaty. Other recommended principles of law include Indigenous Knowledge, polluter pays, intergenerational equity, and common but differentiated responsibilities and respective capabilities.
“The importance of embedding justice within this treaty cannot be overstated,” said Rachel Bustamante, Ocean Program Director at ELC. “The plastic life cycle jeopardizes every Sustainable Development Goal, contributes significantly to global climate change, and threatens human rights worldwide. How equitable and just this treaty turns out to be will have undeniable implications for people, the ocean, and truly, the planet.”
What is #Youth4PlasticJustice?
To build continued support and momentum for a Global Plastic Treaty that includes consideration for ocean justice and human rights, Earth Law Center, EarthEcho International, The Ocean Project, and World Ocean Day are planning a series of actions as part of an advocacy campaign called #Youth4PlasticJustice at INC-4, taking place from April 23 to 29, 2024 in Ottawa, Canada.
How can I get involved?
Join the #Youth4PlasticJustice movement:
Raise your voice by helping contribute to a video with a call-out to world leaders at INC-4 to support the inclusion of justice and human rights in the Global Plastics Treaty. Check out these submission details and RECORD AND SUBMIT YOUR VIDEO HERE.
Sign the petitions to demand negotiators advance ocean justice at INC-4 and adopt a strong Global Plastics Treaty.
Follow Earth Law Center, EarthEcho International, and World Ocean Day on social media to learn more and stay up to date on actions.
Ocean Optimism Making Waves
June 8th marks World Ocean Day, a worldwide call to action to put the Ocean first. In the 15 years since its official recognition by the United Nations, this designation has grown into a global movement, uniting youth leaders, policymakers, Indigenous communities, scientists, and a vast range of both private sector and civil society organizations to protect and restore the Ocean.
This World Ocean Day presents an opportune moment for genuine reflection, allowing us to consider both the challenges confronting the Ocean and to embrace optimism for the future. Today, we reflect on the recent victories of Earth Law Center’s Ocean Rights program and how we can further catalyze action to change the tides on Ocean health.
The Ocean Race One Blue Voice Pavilion in Newport, Rhode Island, May, 2023. Photo by Rachel Bustamante
Ocean Rights Gains Momentum
The initiative “Towards a Universal Declaration of Ocean Rights (UDOR)” is gaining remarkable momentum! Launched in March 2022 with The Ocean Race, Nature’s Rights and the municipality of Genoa, Italy, the UDOR aims to create a shared global vision of positive human-Ocean relationships and give the Ocean a voice and representation within a multinational governance system.
The government of Cabo Verde signed on in 2022 to lead the introduction of Ocean Rights within the United Nations General Assembly in September 2023, and with the support of Monaco, are leading discussions with governments to increase formal support at the UN and national levels. Additionally, local governments have also formally supported the UDOR, including Itajaí and Santa Catarina, Brasil, Aarhus, Denmark, and Newport as well as the House of Representatives of Rhode Island.
The campaign has fostered dialogue and consultation through six 'Innovation Workshops' thus far, bringing together over 150+ experts, policymakers, business leaders, lawyers, Indigenous Peoples, scientists, NGOs, and stakeholders to engage in meaningful discussions on Ocean Rights. We are now in the process of taking all the input into account and moving towards a draft document outlining a new values-based foundation (or code of conduct) to serve as a starting point for the UDOR and its inclusion in upcoming UN agendas.
In addition, the One Blue Voice petition to collect support has now garnered over 24,000 signatures. We encourage you to actively participate in shaping an ecologically sustainable future for the Ocean by signing and sharing the petition. Your support is crucial in ensuring the thriving and well-being of the Ocean!
The Universal Declaration of Ocean Rights milestone map.
Panama Recognizes Sea Turtles’ Rights
In March 2023, Panama’s President Laurentino Cortizo signed a national law promoting the Protection and Conservation of Sea Turtles and their Habitats. This law recognizes the rights of sea turtles to live and have free passage in a healthy environment, free of pollution and other human impacts that cause physical damage. Truly a landmark example, this law is likely the first national law to guarantee and identify the rights of a specific species.
Photo by Michael Ryan Clark.
In 2021, Congressman Gabriel Silva proposed the law, which underwent three legal debates to receive input and shape its provisions before ultimately reaching the President's desk. Earth Law Center, in partnership with The Leatherback Project, provided legal feedback to the draft.
This law identifies sea turtles as having individual value beyond the context of human benefits or perceptions, especially given that these highly endangered species offer a window into the health of the Ocean. Occurring in one of the most biodiverse countries on Earth, this law opens the door for other species’ rights to be recognized in Rights of Nature supporting countries, and sets a fantastic precedent for future legislation!
New Publication on Sharks and Rights of Nature
Rachel Bustamante of Earth Law Center recently published Beyond Protection: Recognizing Nature’s Rights to Conserve Sharks, in the journal Sustainability, laying out approaches to improve the protection and restoration of sharks and their habitats. Globally, sharks are highly threatened by overfishing, habitat degradation, and climate change. As both keystone species and apex predators, sharks regulate food webs and maintain ecological balance. In fact, sharks are fundamental to maintaining a healthy Ocean!
This paper explores how we can move beyond merely protecting sharks and reimagine a more harmonious relationship between humans, sharks, and the Ocean. This publication is within an emerging body of work that reimagines how we can use Rights of Nature frameworks to enshrine protections for specific species.
What Can You Do?
These three stories are but a small sliver of our work. Continue your involvement and support of Earth Law Center’s many efforts to ensure the Ocean is healthy and thrives.
In addition, support the World Ocean Day movement directly by taking the Conservation Action Focus survey.
Most importantly, continue to spread the word about the importance of conserving, protecting, and empowering the Ocean!
Graphic by UN World Oceans Day
Exploring the Deep-Seas and the Risk of Mining
ELC Ocean Team, Xander Deanhardt and Kendall Fowler
The deep-sea is a region full of biodiversity. Scientifically defined as the area of the Ocean 200 meters or deeper, the deep-sea is now at risk of exploitation from mining. In June 2021, the island nation, the Republic of Nauru, invoked a two-year rule under the International Seabed Authority (ISA), the United Nations body that oversees mining. This action pressures the ISA to complete regulations so that commercial mining of the seabed, a process where machines scour the seafloor for rare minerals, could begin as early as mid-2023. Consequently, if applications from industries wanting to mine the seafloor are submitted, this two-year rule means they could be considered by the ISA even without final guidelines in place to protect the marine environment.
Image courtesy of the NOAA Office of Ocean Exploration and Research, Gulf of Mexico 2017.
This issue however is not one solely of industry versus environmental proponents. The mineral modules present on the deep-sea floor are rare minerals argued as necessary for the construction of electric vehicle batteries. Some argue that in order to curb greenhouse gas emissions into the atmosphere and transition the global economy to more sustainable transportation, mining of the deep-sea is required. However, more studies are emerging showing that deep sea minerals will not be necessary by 2050 and car manufacturers such as Volkswagen and BMW, have voiced they will not be using these minerals in their supply chain.
How is DSM being regulated?
The ISA was established under the UN Convention on the Laws of the Sea (UNCLOS) and has a mandate to regulate and control all mineral related activities in the international seabed and subsoil, known as the “Area” and outside the jurisdiction of any single nation. The ISA is responsible for creating regulations to guide decision making in the Area. Under the ISA’s mandate from the UN, it must act on behalf of all mankind and take necessary measures to ensure effective protection of the marine environment. The ISA has allowed regulated exploration of the Area, facilitating scientific research to guide a better understanding of the deep-sea environment, and has been developing regulations for exploitation for a few years. In September 2022, the ISA announced that the company, Nauru Ocean Resources Inc (NORI, a Republic of Nauru national), was given permission to “test-mine” in the Clarion Clipperton Zone. NORI is projected to remove 3,600 tonnes of polymetallic nodules (the equivalent of the weight of approximately 35,000 blue whales) by the end of 2022.
UNCLOS states that if a nation alerts the ISA that it has the intent to start exploitation of the Area, a two-year deadline is triggered, giving the ISA two-years to complete regulations for exploitation before applications for mining can be submitted. The Republic of Nauru sent a request to the ISA in June of 2021 and due to the COVID-19 pandemic, as well as the complexity of the issue, the regulations are not near completion despite the deadline of the two-year trigger occurring in the summer of 2023. If the regulations are not complete by the July 2023 deadline, contractors could start to submit plans of work for mining the deep-seabed and permits may be issued based on only provisional exploitation regulations.
Why is deep sea mining an important issue?
The Ocean is the lifesource of our planet, providing half of the oxygen we breathe, sequestering carbon dioxide and mitigating climate change, and providing jobs, food and livelihood for millions of people. The deep sea has flourished for millenia, supporting some of the most biodiverse and scientifically important ecosystems on Earth, and is vital to the overall health and functioning of the Ocean. Many deep-sea organisms have long life cycles, for example there are sponges found to be 10,000 years old! Little is known regarding deep-sea ecosystems and mining impacts to the deep-sea and Ocean as a whole. However, novel research analyzing the potential harms of mining suggests devastating effects. In fact, initial studies have indicated that the effects of deep-seabed mining on the seafloor could persist for hundreds of years. Other projections suggest that each individual mining operation may disturb between 300 and 800 square kilometers per year, with impacts spreading over an area two to five times larger due to sediment being kicked up by mining machinery. An additional harm would be the noise produced by a deep-sea mine. Studies have estimated that a single deep-sea mine’s noise could travel approximately 500 kilometers, causing disturbances and confusion for several deep-sea creatures.
As noted by the Pacific Blue Line Initiative and others, for millennia, communities and peoples worldwide have revered the Ocean as a living being, and as an ancestor or kin, with whom we have responsibilities to respect and care for. In fact, the Hawaiian creation chant, or Kumulipo, explains how life began from the first organism, a coral polyp found in the deep sea, and is the extension of our genealogy.
Additionally, over 90% of Pacific people rely on the Ocean for their livelihood. Negative impacts on fish in or near the area will be felt by those inhabiting coastal communities. A report by the Deep Sea Mining Campaign and MiningWatch Canada stated that DSM would have negative repercussions for Pacific Islanders, specifically, it would have negative impacts on local fishers which are a main source of wealth, food security, and employment for many in the Pacific. DSM will therefore result in environmental degradation and destruction of livelihoods and habitats across the Pacific and world.
Image credit: Amanda Dillon, https://doi.org/10.1073/pnas.2011914117
What can you do?
While some countries and industries push to mine for the minerals needed for electric vehicle batteries from the seafloor, the future of deep-sea mining is still uncertain, and there are many parties trying to shape its future. Several countries, NGOs, marine scientists and policy experts are calling for a moratorium, or ban, on deep-sea mining, citing the unknown extent of harm that deep-sea mining could cause to marine and coastal environments and species. Additionally, several member nations of the ISA as well as NGOs are exploring alternative legal options to halt the possibility of mining contracts receiving conditional approval this year in the absence of completed and adopted exploitation regulations. Many arguments are grounded in the idea that the ISA is mandated to protect the marine environment, and the limited information known about mining the deep-seabed indicates possible irreparable damage and widespread effects. The next meeting of the ISA Council is Starting Now, (in March 2023) make sure your voice is heard, such as signing a petition below or writing to your countries delegates.
Call on your government to add its voice and support a global ban or precautionary pause on DSM.
Click the following link to add your name to the official letter to stop deep-sea mining. Signatures from the letter will be delivered to United Nations and International Seabed Authority representatives.
Support and share the Pacific Blue Line Initiative and Indigenous petition against DSM.
Additionally, watch and share Deep Rising, a new documentary that draws attention to the impacts deep-sea mining would have on the environment as well as other well made educational videos, including this one from Deep Sea Conservation Coalition and learn more!
What about the Rights of Nature?
ELC is exploring how alternative legal pathways may support the global call to stop DSM before it starts. Rights of Nature recognizes Nature as a living being with inherent rights, with the underlying philosophy and ethic that all beings have rights and intrinsic worth merely for existing. Over thirty countries have embraced the Rights of Nature through constitutional amendments, national law, judicial decisions, treaty agreements, local law, or resolutions. Scientific evidence that deep-sea mining will likely harm if not completely devastated marine environments and species runs completely contrary to Rights of Nature, which is now recognized as an integral part to the implementation of the recent global agreement for biodiversity, known as the Kunming-Montreal Global biodiversity framework. More to come in a second blog on this critical issue, but for now, watch this short video clip discussing the importance of shifting the focus away from the right to use the Earth’s natural resources and toward a Rights of Nature approach.
Get involved and stay up to date on deep-sea mining:
Image courtesy of the NOAA Ocean Exploration, Exploring Deep-sea Habitats off Puerto Rico and the U.S. Virgin Islands.
Rights for the Southern Resident Orcas Gains Momentum
By Michelle Bender, Rachel Bustamante and Kriss Kevorkian
The Southern Resident Orcas are a critically endangered subspecies of orca found primarily off the coasts of British Columbia and Washington in the Salish Sea. They have been at the center of a campaign led by Earth Law Center (ELC) and partner, Legal Rights for the Salish Sea (LRSS), to protect and recover their population by recognizing their inherent rights and the ecosystems on which they depend. The long-term goal is State level recognition of the population’s inherent rights and active steps towards implementation. The campaign was launched in 2018 as a response to their continued decline, despite federal legal protections for nearly two decades. The Southern Resident Orca (“the Orcas”) has only 73 individuals left in the wild. The original scope focused on the entire Salish Sea, but ELC and LRSS decided to pivot and focus on the Orcas as the stepping stone to a broader paradigm shift in Washington, because as the Orcas go, we go.
In 2019/2020, ELC worked on a draft State bill with various legal experts, and focused on education and awareness building. ELC and LRSS have been busy at work, including holding many workshops and roundtables to increase Rights of Nature education in the Pacific Northwest. ELC also created a toolkit which was distributed early in 2022 to provide advocates with the tools they need to support the campaign; including a template resolution, talking points, frequently asked questions and social media templates. You can take action and view the toolkit here. (We encourage viewing the template resolution as a guide while adding the unique views and values of your community. Please let us know when you've done this so we can include you in the campaign.)
Jefferson County Commissioners alongside members of the North Olympic Orca Pod at the signing of the Jefferson County Proclamation
In late 2022, our initiative started to receive significant support at the local level. It began when Port Townsend expressed interest after outreach from LRSS and ELC drafted an updated version of our template resolution in line with a Proclamation. Since December 2022, four cities (Port Townsend, Gig Harbor, Langley, Bainbridge) and two counties (Jefferson County and San Juan County) in Washington State have passed proclamations recognizing the inherent rights of the Orcas (you can view all the proclamations here), and the number continues to grow.
More cities and counties are also considering proclamations and we will continue to update this blog as they come in! These local actions are creating the momentum needed to call for immediate state-level action to address the main threats to the Southern Resident Orcas’ survival. Local organizing and resolutions/proclamations have proven powerful tools to gain state and federal action in the United States, and we hope that 2024 will be the year for a state bill or comparable proclamation in Washington’s legislative session.
Who are the Southern Resident Orcas?
The Southern Resident Orcas are a keystone species in the Pacific Northwest, meaning they play a critical role in sustaining the ecological health of the ecosystems they inhabit and are an important indicator of Ocean health. The primary threats to Orcas include a limited availability of their primary prey, chinook salmon, underwater noise and toxic contaminants polluting their habitats. They are highly social creatures that are culturally, spiritually, and economically important to the people of Washington State and the world. To explore more about the Southern Resident Orcas and their ecological importance, read more here.
How can recognizing their rights help their dire situation?
Recognition of their inherent rights demonstrates that we value their population and acknowledge their ecological needs. For example, the Port Townsend proclamation states that the Orcas have inherent rights to: “life, autonomy, culture, free and safe passage, adequate food supply from naturally occurring sources, and freedom from conditions causing physical, emotional, or mental harm, including a habitat degraded by noise, pollution, and contamination.” Recognizing the inherent rights of the Orcas is not only crucial for the protection and recovery of their population but also for respecting and upholding the cultural, spiritual, and economic importance of these creatures to the Indigenous communities who have lived in the region for millenia.
Approximately 30 countries already have hundreds of Rights of Nature laws, with dozens at the local and tribal levels in the United States. For example Santa Monica's Sustainability Rights Ordinance, the Nez Perce's resolution recognizing the rights of the Snake River, and both San Francisco and Malibu have passed resolutions protecting the rights of whales and dolphins in their coastal waters.
Take action to help protect the Southern Resident Orcas and their ecosystems!
Overall, this campaign is making significant progress in advocating for safeguarding and recovering their declining population. The support of cities and counties in Washington demonstrate a growing recognition of the urgent need to protect this species and their habitat. However, more action is needed to ensure their long-term survival.
To help protect the Southern Resident Orcas and their ecosystems, you can stay informed and engaged by following the progress of this ongoing campaign, learning more about these magnificent species, and advocating for stronger protections.
Previous blogs on this campaign:
The Ocean needs a High Seas Treaty
Silas Baisch from Unsplash
The Ocean needs a High Seas Treaty
The High Seas are two-thirds of the world’s Ocean. Despite being home to a myriad of biodiversity, (such as the Pacific Blue Tuna, White Shark or Leatherback Sea Turtle), and numerous species still unknown to science, there is still no comprehensive framework on how to govern human activity on the High Seas.
History of High Seas Governance
In 1982, the United Nations Convention on the Law of the Sea (UNCLOS) marked the beginning of global agreement for the Ocean. The High Seas, also known as the Areas Beyond National Jurisdiction (ABNJ), is the water column of the Ocean areas outside a coastal country’s Exclusive Economic Zone, generally 200-miles offshore. That is to say, no one country has the sole responsibility of these areas, so governance ought to be collective and collaborative across the globe.
While UNCLOS requires nations ‘to protect and preserve the marine environment,’ there are significant legal and governance gaps that consequently, have not effectively deterred overfishing and other human induced threats.
Fortunately, there has been recognition of the need to better protect marine biological diversity on the High Seas for decades. The development of a new international and legally-binding treaty under UNCLOS is long overdue, but has yet to reach formal adoption.
High Seas Treaty Talks Continue
The fifth round of United Nations High Seas negotiations (IGC-5) ended in New York on August 26, without reaching consensus on the treaty.
Though IGC-5 was intended to be the last scheduled session, delegations will have to meet again this year to fulfill the deadline of adopting the treaty by the end of 2022 (set by UN General Assembly resolution 72/249).
Commenting on the 2022 target, the High Seas Alliance, a coalition of organizations, of which Earth Law Center is a part of, pushed for momentum and collaboration between States to continue, stating “this is essential if the world is to achieve the goal of protecting 30% of the ocean by 2030 - something which cannot be achieved without the Treaty.”
Why the urgency?
The failure to adopt a treaty to protect marine life on the High Seas comes at a critical time. Speaking at the UN Ocean Conference in Lisbon in June, UN Secretary-General António Guterres declared “we have taken the ocean for granted and today we face what I would call an ocean emergency.”
Ocean health continues to decline. This is a defining moment and historical opportunity to restore a relationship of care and stewardship of the Ocean.
Rights and Interests of Marine Life
Though State interests and disagreements halted the negotiation process, one brightspot is the recommendation submitted by the International Union for the Conservation of Nature (IUCN) for the treaty to include:
“Stressing the need to respect the balance of rights, obligations and interests set out in the Convention, as well as the rights and interests of future generations and marine life to a healthy, productive and resilient ocean” (Preamable Paragraph 2).
Where negotiations ended, this text was not yet included in the treaty, but we look forward to continuing advocacy for the Ocean’s rights and interests to be recognized. This would be the first global treaty to do so!
Acknowledging the Ocean as a rightsholder and interest would help ensure the Ocean’s needs and well-being are considered in decisions that affect the health of marine ecosystems and biodiversity. In practice, this could strengthen implementation of States’ obligations to protect and conserve the High Seas by recognizing that human activity must be governed by and respect the Ocean’s intrinsic value and ecological limits.
Additionally, this would promote and align with many Indigenous peoples worldviews, and provide an avenue for increased participation of Indigenous Peoples as those who may represent the Ocean’s interests and needs in decision making under the new agreement.
Indigenous and local communities have been widely excluded and underrepresented in the treaty process, despite supportive nations calling for their direct inclusion and consultation. Just as many Indigenous and coastal peoples have been teaching for millennia, we are in a deeply connected relationship with the Ocean. The Ocean is our source of life and a living sacred entity. For centuries this kinship understanding has guided activities, balancing between the needs of people and the capacity of Ocean. Amplifying diverse understandings of relating to the Ocean, can not only help replace our focus on exploiting the High Seas, but help guide our use and value of the Ocean.
Ocean Stewardship
We also commend and support Article 5 to remain in the treaty that calls for the stewardship of the High Seas, “protecting, caring for and ensuring responsible use of the marine environment, maintaining the integrity of ocean ecosystems and preserving the inherent value of biodiversity” (Article 5 k.).
The stewardship principle strengthens States’ responsibility to maintain healthy and thriving Ocean ecosystems on behalf of present and future generations of all life. This means helping States’ adhere to the best available scientific evidence and include the Ocean’s needs in decision making.
Rather than fulfilling States’ short-term interests, active stewardship requires prioritizing the long-term well-being of the Ocean. In fact, in 2022, the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) produced an assessment report on the valuation of Nature, highlighting that, ‘a broader diversity of nature’s values’ should be incorporated into decision making. It additionally finds that the causes of and solutions for our global environmental challenges are tightly linked to the ways in which we value our environments (p.4).
We urge adoption of a treaty this year that recognizes the inherent value, rights and interests of the High Seas and States’ responsibility to conserve. This will signify a turning point from “business as usual” towards living in harmony with Mother Earth. The Ocean needs us to adopt a global vision and treaty that embodies stewardship, care and respect for Ocean health.
Join ELC in our efforts to encourage governance respect the Ocean’s Rights and interests!
Find Updates on the High Seas Alliance Treaty Tracker
Iceland Announces End to Whaling
By Emma Hynek
In March 2022, Iceland announced an end to the country’s long standing whaling tradition, citing a lack of interest and profit as the reasoning behind the decision. However, once it takes effect in 2024, the impacts will extend far beyond financial. Though not often considered, whales play a critical role in the ocean’s ecosystem, and there is increasing evidence that cetaceans possess high levels of intelligence and sentience. With the end to Iceland’s whale hunting industry nearing, we hope to see further protection and recovery of whale populations.
Whaling History
National Geographic writes that whaling dates back to the 1600s and was a practice that could be found in Iceland, Norway, Japan, and America. Whaling in the United States was banned in 1971, and this year, Iceland announced its plans to allow current whale hunting quotas to expire in 2024, effectively ending the whaling practice in Iceland, and leaving Norway and Japan as the only two countries where whaling is still legal.
BBC reported on Iceland’s decision to ban whaling, saying, "Why should Iceland take the risk of keeping up whaling, which has not brought any economic gain, in order to sell a product for which there is hardly any demand?" Svandis Svavarsdottir wrote on Friday in the Morgunbladid newspaper.”
In 1982, the International Whaling Commission announced a moratorium on whaling, a decision that has helped protect whales to this day. Though whaling still occurs in Norway and Japan, the moratorium allowed previously hunted whale populations to recover, writes National Geographic. In recent years, as a result of increasing evidence of whale intelligence and sentience, many have pushed for further protections and even the recognition of whales as having legal rights.
Why Is Protecting Whales Important?
According to Whale and Dolphin Conservation, “Whales play a vital role in the marine ecosystem where they help provide at least half of the oxygen you breathe, combat climate change, and sustain fish stocks. How do they do it? By providing nutrients to phytoplankton.” These nutrients, specifically iron, nitrogen, and phosphorus, are dispersed through their fecal plumes.
Despite their importance, they still face many threats to their existence. In addition to hunting, “…industrial fishing, ship strikes, pollution, habitat loss, and climate change are creating a hazardous and sometimes fatal obstacle course for the marine species,” states the World Wide Fund for Nature.
Whaling has also caused whale populations to decrease immensely. This World Economic Forum article details the number of whale species that have been reduced to near extinction through whaling. When whale numbers decline, so does the overall health of the ocean. However, the article also reiterates that the IWC’s moratorium helped to bring whale populations to a healthier number, citing the gray whale as an example of the 1986 moratorium’s success. “The moratorium was largely successful, with the population of Western gray whales increasing from 115 individuals in 2004 to 174 in 2015. The WSA humpback whale, which numbered fewer than 1,000 for nearly 40 years, has recovered to close to 25,000, according to the latest study.”
The Helsinki Group, based in Helsinki, Finland, released a declaration in 2010 calling for the rights of cetaceans to be recognized. The Helsinki Group is just one of many organizations that are dedicated to granting rights to cetaceans. The American Association for the Advancement of Science (AAAS) has pushed for cetacean rights to be recognized, as have Sonar and ELC.
Next Steps
While there is still work to be done, it is encouraging that a previous ban on whaling created a positive impact. With legal rights for cetaceans not yet in place and whaling set to end in Iceland, now is the time to reinvigorate the fight for the rights of whales and all cetaceans. Earth Law Center has worked for several years to lead initiatives around the world to protect these intelligent, vital creatures, including the Southern Resident Orca campaign, which is a campaign for state recognition of the Southern Resident’s inherent rights to life, which includes the right to life, autonomy, free and safe passage, adequate food supply from naturally occurring sources, and to be free from conditions causing physical, emotional, or mental harm, including a habitat degraded by noise, pollution and contamination.
"If humans are to survive we must re-remember our kinship with Nature and our non-human relatives. This will undoubtedly require changes in the way we do business; opening space for innovations so that we can have a future with clean rivers, ocean and seas, and healthy habitats for humans, animals and plants alike." says Elizabeth Dunne, Director of Legal Advocacy at Earth Law Center.
ELC’s very own Michelle Bender has also written an e-book on Ocean Rights, which can be found here. We urge you to join our mission to protect the rights of the ocean and the creatures it houses!
How You Can Help
· Click here to learn more about ocean rights.
· Click here to donate.
· Click here to join our team as a volunteer!
Advancing Ecocentric Law for Antarctica
Antarctica, the white continent in the Southern Hemisphere known as one of the most pristine places on Earth absorbs nearly three-quarters of global excess heat and captures almost one-third of of the planet’s carbon dioxide.
Not only does Antarctica contain 90% of the ice and 70% of the fresh water on Earth, a host of species live only here including: 5 species of penguins, 6 whale species, 200+ fish species, and 23 mammalian species. Did you know that Emperor Penguins have lived in Antarctica for 60 million years?
Antarctica not only profoundly affects Earth’s climate and ocean systems, its ice sheet bears a unique record of what our planet’s climate was like over the past one million years.
Factors Challenging the Ecosystems of the Antarctic Peninsula
Climate change, however, threatens the iconic Emperor Penguins and indeed most life in this unique ecosystem with extinction.
The Antarctic Peninsula has warmed at a rate about 10 times faster than the global average. The average annual temperature of the Western Peninsula has increased by nearly 3°C in the last 50 years.
Fishing (both legal and illegal), invasive species, tourism, pollution, oil/gas mining and human infrastructure compound the stresses threatening the delicate ecosystems of Antarctica.
Opportunities to Advance Conservation of Antarctica
Many groups and governments have taken up the call to protect Antarctica, including the Antarctic and Southern Ocean Coalition (ASOC). Among their objectives, ASOC advocates for science-based policies within the existing Antarctic governance framework, namely the Antarctic Treaty signed 1959. Now with 50 signatories, the treaty sets aside Antarctica as a scientific preserve and establishes freedom of scientific investigation.
The creation of the Ross Sea Protected Area created in 2017, protects one of the most biodiverse and productive marine areas in the region. At the time this marked the largest MPA in the world, covering 1.55 million square kilometers, of which 1.12 million square kilometers is fully protected. This represents one of the most significant conservation milestones for Antarctica to date.
With no permanent population, all personnel found on Antarctica hail from other countries (mostly ones who have laid claim to Antarctica but also those with no official claim). Many of these do not recognize each other’s claims. All this makes it exceedingly challenging to create and implement the holistic deep protections that Antarctica now urgently needs to safeguard its unique ecosystems.
Earth Law for Antarctica
Earth Law Center has joined a coalition to create a Declaration of Rights of Antarctica to provide a framework for a new eco-centric vision, planned for launch at Earth Day in April 2022.
Building on earlier frameworks to protect oceans and rivers, Earth Law Center has worked to catalyze a global movement to curtail activities which harm diverse ecosystems.
The declaration aims to provide a code of conduct, to manage human activity in Antarctica with the protection of the ecological needs and natural capacities of that unique ecosystem as a priority. Similar to the Universal Declaration on Human Rights and World Charter for Nature, countries can then join in supporting, implementing and enforcing this new norm.
“Antarctica is a ripe opportunity for reimagining governance and reclaiming sovereignty for the natural inhabitants of the area. Rather than seeking to claim parts of the whole, and exercise rights given to us under the Treaty system, we instead would honor our responsibilities to ensure the area is protected as a common heritage for future generations of all life.” Michelle Bender, Ocean Campaigns Director, Earth Law Center.
Take action today and be part of the solution to rebalance the human-Nature relationship:
Get ELC’s ebook about Ocean Rights
Stay informed by signing up for ELC’s monthly newsletter
Join our newly launched ELC Ambassador Community as a moderator here
Make a monthly contribution of $5 to protect our only home
Earth Law Center Partners with The Leatherback Project to Support Sea Turtle Conservation Efforts in Panama
By Emma Hynek
Panama Introduces New Conservation Law to Protect Endangered Sea Turtles
Of the five species of sea turtles in Panama’s waters, three are globally considered vulnerable to extinction, one is endangered with extinction, and another is critically endangered with extinction. Sea turtles are a vital component of the marine ecosystem as they provide support for the subsistence of the reef ecosystem and food transport throughout the world’s oceans. However, both the species and its habitat need urgent protection.
Over 60 percent of the world's 356 turtle species are threatened or extinct, making them one of the most vulnerable species on the planet. Sea turtles are threatened by human actions including harvesting turtles and their eggs, irresponsible tourism and development practices, pollution and debris, bycatch, climate change and vessel strikes. The Panama Wildlife Conservation’s Sea Turtle Project states that coastal overdevelopment, fisheries bycatch, pathogens, and climate change are all substantial threats to the survival of sea turtles.
However, lawmakers are working to change that. In 2021, Congressman Gabriel Silva introduced a law designed to preserve Panama’s sea turtles through a multi-part conservation plan that guarantees the restoration, prevention of contamination, and severe degradation of sea turtles’ habitats.
Adult female green sea turtle photographed returning to the ocean after laying eggs during the first scientific study conducted on El Playon, Isla del Rey, Pearl Islands Archipelago, Panama. Photo credit: Michael Ryan Clark
Granting Sea Turtles Rights of Nature
Following the law’s introduction, Earth Law Center (ELC) partnered with The Leatherback Project (TLP) to campaign for even more protection of sea turtles in Panama. The Leatherback Project is an organization dedicated to the conservation of the massive leatherback sea turtle throughout its global range through research, education, and advocacy initiatives aimed at mitigating fisheries bycatch, reducing plastic pollution, and combating climate change.
The two organizations have submitted a formal request that Rights of Nature be added to Panama’s law. You can read more about Rights of Nature in this ELC report.
By recognizing nonhuman species’ rights, we are taking a crucial step towards ensuring conservation is proactive rather than reactive. For example, many policies (such as the Endangered Species Act in the United States) are only enacted once a species is already endangered, at which point it can often be too late to restore the population's health. By taking an ecocentric approach rather than a human-centric approach to conservation, we are considering the sea turtle’s inherent right to exist, thrive, and evolve. This means that when humans make decisions affecting sea turtles, they need to also consider their well-being.
Olive ridley sea turtle hatchling racing towards the sea, documented for the first time on Playa Atajo, Isla del Rey, Pearl Islands Archipelago, Panama. Photo credit: Callie Veelenturf
In our society, increased legal rights means increased protection. This is seen in human rights and corporate rights, and the same would apply to animals that receive rights. Adding Rights of Nature for sea turtles would allow the conservation of the species to take a forefront in relevant decisions and would emphasize the interdependence between humans and animals. According to ELC’s Community Toolkit for Rights of Nature, adding Rights of Nature would mean:
“Recognizing Nature as an independent stakeholder in decision-making and creating a guardianship system,
Enabling representation through the standing of any person or community.”
Next Steps
Rights for non-human beings are not new! International and local recognition of non-human being’s rights to exist and flourish include:
Both San Francisco and Malibu passed resolutions protecting the rights of whales and dolphins in their coastal waters.
The ʔEsdilagh First Nation in what is now Canada (one of the six that comprises the Tsilhqot’in Nation) enacted the Sturgeon River Law (also known as the Fraser River) that states the people, animals, fish, plants, the nen (“lands”), and the tu (“waters”) have rights.
The New Zealand Government legally recognizes animals as 'sentient' beings; the Uttarakhand High Court of India ruled that “the entire animal kingdom, including avian and aquatic, are legal entities with rights; and the United Kingdom now recognizes lobsters, crabs, and octopus as sentient beings.
Ecuador has recognized the Rights of Nature on the national level.
Rivers in Colombia and New Zealand have obtained legal rights.
Panama’s proposed bill is currently in the seventh round of debates. If enacted, this would be the first time that the specific rights of a species group would be recognized in a Rights of Nature law. This bill could set a precedent for protecting the inherent rights and intrinsic value of marine species, a precedent that can encourage other nations to proactively protect sea turtles and other species.
Join ELC in our efforts to educate others and create a positive impact on the Earth!
Sign up for the ELC Newsletter
Exploring the Earth Law Toolkit with ELC
An exciting new body of law is gaining attention with legislators, activists and legal professionals around the world: Earth law. Earth law takes an ecocentric approach as opposed to a purely anthropocentric one, bringing together diverse legal movements including the legal recognition of Nature’s rights, Indigenous and biocultural rights, the rights of future generations, and the right of humans to a healthy environment, among other legal frameworks.
Earth Law Center (ELC) has been at the center of the Earth law movement from its inception, and provides expert legal advice to governments, activists, litigants and other groups or individuals navigating this relatively new legal ground. In fact, ELC literally wrote the book on Earth law, having recently released the first law school textbook presenting cases and guidance on how to use Earth Law to protect and restore Nature.
To provide an idea of how that work is done, below are some of the key tools and frameworks of Earth law that ELC has helped shape and successfully deployed.
Crafting legislation that codifies Earth law
By writing Earth-centered protections into legal codes, municipalities and regional governments can give Nature a voice within local government and create stronger protections for local ecosystems . However, with a long history of treating Nature as a resource and legislating its use only as it relates to extraction and human benefit, it is not always easy or intuitive to turn from anthropocentric to ecocentric thinking.
This is where ELC’s expertise can be deployed. Most recently, ELC worked with Save the Colorado to draft a legal model that will enable U.S. municipalities to grant rights and protections to local rivers and watersheds and establish local guardianship bodies to protect those rights. Already, several municipalities in Colorado are considering local laws or resolutions that draw from these templates (exciting news soon to follow!).
Molding the models: Creating toolkits, frameworks, guidelines and Nature’s rights declarations
In addition to working on the local or regional level to help codify protections for Nature, ELC has worked on broader reaching, cutting-edge legislation to protect Nature, including co-drafting the Universal Declaration of the Rights of Rivers and launching a standalone website where you can sign on in support, developed with ELC partner International Rivers and others. This declaration serves not only as a legal explanation for the rights of rivers, but as a legislative starting point for governments around the world interested in establishing the rights of rivers within their jurisdiction.
ELC has also played a foundational role in the Rights of Nature movement by creating toolkits and guidelines for those interested in advocating for Nature. For example, Michelle Bender, ELC’s Ocean Campaign Director, has led the creation of various Oceans-related toolkits, such as the Marine Protected Area toolkit and Rights for Coral Reefs toolkit.
ELC’s team of legal experts is writing a new DNA for legal systems around the world based on living in harmony with Nature, and making those legal models replicable and scalable.
Working with Indigenous Peoples to advance both Nature’s rights and Indigenous rights
Much as legal systems provide for guardianships for children or other individuals who cannot adequately represent or advocate for their interests, a key framework of Earth law is the establishment of legal guardianships for Nature. A useful model for this framework comes from New Zealand, which in 1978 granted legal personhood status to the Whanganui River in accordance with Maori beliefs.
While determining “who speaks for Nature” can be challenging, it is clear that it should be an independent body free of government or commercial interest and that it must represent a diversity of viewpoints. The exact guardianship model used can vary widely depending on the local community’s culture, beliefs, and traditions, but creating guardianships is a wonderful opportunity to build an inclusive governing body, and typically includes representation from local Indigenous communities, underrepresented communities, and non-profit and ecosystem protection organizations and local activists.
Advocating for the rights of future generations to a clean and healthy natural environment
In 2019, a district judge in the state of Oaxaca, Mexico, ruled in favor of protecting two of the most contaminated rivers in Mexico, the Atoyac and Salado Rivers. ELC, among others, provided an amicus brief to the court in favor of protection, and was excited to discover that the Court drew from several of the legal arguments presented in the brief, including the argument that both present and future generations have a right to a healthy environment.
Since then, the legal argument that current and future generations have a right to protected, healthy natural environments has gained ground. Most recently, Germany’s highest court ruled in April that the federal government must amend their climate law, drawing up clearer reduction targets for greenhouse gas emissions. The decision came after nine individuals, several of them young people, argued in court that as the climate law stood, it did not do enough to assure their right to a humane future.
The key frameworks outlined here are a few of the ways ELC’s legal experts are using Earth law to advance the protection and rights of Nature. ELC is excited to continue utilizing these tools and developing and advancing Earth law around the world. If you would like to get in touch with ELC’s Earth law experts, email info@earthlaw.org.
Sk'aliCh'elh-tenaut’s Story: An orcas life in captivity and the efforts to free her
Earth Law Center recently announced our partnership with the Lummi Nation to bring Sk'aliCh'elh-tenaut (first named Tokitae and later known as her stage name, Lolita) home to the Salish Sea. This is our fifth blog in this series. Our previous blogs explored the history of the campaign by the Lummi Nation, ELC’s partnership with two members of the Lummi Nation, and the culture, lives and population structure of the Southern Resident Orcas of the Salish Sea. Our most recent blog delved more deeply into the relationships of the Lummi with orcas, and the worldview of indigenous peoples, generally. This blog will delve further into the life of Sk'aliCh'elh-tenaut and the decades-long legal battle to release her from the Miami Seaquarium.
By Christian Muller and Laila Remainis
Meet Sk'aliCh'elh-tenaut
On August 8th, 1970 approximately 80 orcas were taken from the waters of Washington State. This event was one of the largest in history and involved dropping bombs into the water to drive the younger orcas into shallow coves. Sk'aliCh'elh-tenaut was one of seven young orcas taken from her family that day. Five orcas of Sk'aliCh'elh-tenaut’s pod were so seriously injured that they died shortly after. Their bodies were filled with rocks so they would sink and thus avoid public attention. For weeks after, local residents reported the cries of the remaining pod members searching the abduction area seeking their loved ones.
The abduction of Sk'aliCh'elh-tenaut and other orcas profited by Ted Griffen and Don Goldsberry. The Miami Seaquarium then purchased Sk'aliCh'elh-tenaut who arrived there on September 23, 1970. Her first name, Tokitae, a Salish greeting meaning “nice day, pretty colors” was changed to Lolita.
Sk'aliCh'elh-tenaut’s abduction story as a mammal in captivity happened around the world and across the US. Capturing young cetaceans (whales and dolphins) from the wild to spend the rest of their lives in captivity for entertainment purposes began in the 1950s and continued until the early 1970s in the United States. This changed when the Marine Mammal Protection Act was passed prohibiting any “taking” of a mammal without a permit. Currently over 2,000 dolphins, belugas, and orcas are held in captivity internationally, with 5000 individuals having already died in captivity. Currently, there are 59 orcas in captivity in seven countries.
Sk'aliCh'elh-tenaut first lived in a tank at the Miami Seaquarium with a male orca, Hugo. Taken from the coast of Washington and sold to the Miami Seaquarium in 1968, Hugo performed with Sk'aliCh'elh-tenaut for ten years. Hugo’s behavior became increasingly compulsive and aggressive, which population biologists determined was caused by life restricted in a small tank. Hugo would often slam his head against the walls of the shared tank, leading to repeated injuries requiring medical and surgical attention and resulted in his death in 1980 of a brain aneurysm. Sk'aliCh'elh-tenaut witnessed 12 years of this behavior as well as Hugo’s death.
Now alone, Sk'aliCh'elh-tenaut lives in an 80 feet long, 35 feet wide and 20 feet deep tank (and even smaller quarters at times). Her “home” happens to also be the smallest tank for an orca in the world. Sk'aliCh'elh-tenaut herself is 22 feet long. In the wild, she would have swam up to 40 miles every day and dive to depths between 100-500 feet several times a day to find food. Imagine for a moment how it would feel to be in solitary confinement: in a room where we could walk a few steps and turn around, without any windows and never being able to go outside again for the rest of our lives.
At one point, two Pacific white-sided dolphins were put into Sk'aliCh'elh-tenaut’s tank, and repeatedly scarred her skin with their teeth (defensive “raking” behavior). In 2015, Sk'aliCh'elh-tenaut was raked over 50 times, leaving her in need of both painkillers and antibiotics.
The shallow tank depth also leaves her vulnerable to both the hot Miami sun and major storms. In 2017 Sk'aliCh'elh-tenaut was left to fend for herself in an uncovered tank during Hurricane Irma. The Seaquarium’s lockdown in response to the hurricane, left the two dolphins and Sk'aliCh'elh-tenaut at risk of injury from debris, metal from a “rusty roof beyond repair,” and filtration malfunction. While free orcas are usually able to survive large storms by swimming to greater depths in the ocean, orcas in captivity are unable to.
Legal Battles to Free Sk'aliCh'elh-tenaut
In the 1990s, Washington Governor Mike Lowry and Secretary of State Ralph Munro launched the first “Free Lolita!” campaign. During the next ten years, multiple organizations and foundations including the Tokitae Foundation and Orca Network formed to raise awareness about Sk'aliCh'elh-tenaut’s plight. In 2003, animal rights activists, including Russ Rector issued code violations against the park for the squalid living conditions.
The movement to free Sk'aliCh'elh-tenaut has spurred numerous lawsuits and petitions. These lawsuits largely cited the Endangered Species Act as well as the Animal Welfare Act. The Endangered Species Act (ESA) is the primary law in the United States for protecting imperiled species. Its goal is to develop and implement plans to recover species listed as threatened or endangered. If a species is listed, this prohibits agency actions that “may affect” a listed species, specifically prohibiting the “take” of such species, which broadly includes activities that harass, harm, or kill. The Animal Welfare Act creates and enforces that minimum standards of care and treatment be provided for certain animals bred for commercial sale, used in research, transported commercially, or exhibited to the public.
One of the first cases aiming to free orcas from captivity was filed in February 2012. People for the Ethical Treatment of Animals Foundation (PETA) attorneys brought a case against SeaWorld citing the 13th Amendment. The suit claimed SeaWorld was in violation of the 13th Amendment for enslaving five orcas. PETA argued that constitutional protections against slavery are not only limited to humans. Under the 13th Amendment the orcas’ capture and forced servitude was illegal. The court dismissed the action due to lack of subject matter jurisdiction and the judge issued a statement concluding no basis to extend the 13th Amendment to non-humans. Although the case was dismissed, the news of the proceedings sparked a growth in public attention and concern for orcas used as show animals.
In 2005, the Southern Resident Orca population was listed as endangered under the Endangered Species Act. The extension of the protective listing was denied to Sk'aliCh'elh-tenaut. This spurred a petition in 2012 sponsored by PETA on behalf of the Animal Legal Defense Fund (ALDF), Orca Network, Howard Garrett, Shelby Proie, Karen Munro, and Patricia Sykes to include Lolita under the endangered listing of the Southern Resident population. With over 17,000 supporters, the National Marine Fisheries Service finally passed a rule in 2015 to list Lolita under the ESA.
In 2013, ALDF filed the case Lolita vs. USDA claimed that the Seaquarium’s exhibitor’s license renewal had violated the Animal Welfare Act on multiple counts. The violations included her small tank size, lack of protection from the sun and an absence of companionship (a critical issue considering the highly social nature of orcas). Seaquarium managers repeatedly rebuffed the accusations. The federal district court granted summary judgment for the USDA in 2014. The court found that while Congress established standards and procedures for the USDA to issue an exhibitor’s license, it is left to the agency to determine the standards and procedures for the license renewal process. The court determined that the USDA’s renewal process was legally permissible. The case was dismissed and lost on appeal in June 2015.
Following the death of a SeaWorld trainer, the Occupational Health and Safety Administration (OSHA) implemented new restrictions between trainers and orcas to ensure the safety of both parties. While the judge ruling specified new restrictions for SeaWorld performances, the Miami Seaquarium continued placing trainers in the water with Sk'aliCh'elh-tenaut. The American Legal Defense Fund (ALDF) alerted OSHA of violations. Miami Seaquarium responded with disagreement that the trainer’s lives were at any risk around Lolita. Ultimately in 2014, OSHA fined the Seaquarium $7,000 for violating the physical barrier requirement.
The year after the Miami Seaquarium was fined, Sk'aliCh'elh-tenaut was officially listed under the Endangered Species Act with the Southern Resident Orca population. Several weeks after the announcement, Orca Network, PETA, and ALDF sued the Seaquarium demanding Sk'aliCh'elh-tenaut be retired from entertainment and released to a seaside sanctuary. The groups proposed a retirement plan meant to transition her from to the Salish Sea. The orca advocacy team explained that the treatment and confinement of Lolita constituted a “take” (direct or indirect harassment) under the Endangered Species Act. The team cited thirteen different injuries stemming directly from the small size of her tank. The Miami Seaquarium attempted to claim that freeing her would make her more vulnerable to an injury or ailments. The initial court decision dismissed the case in 2016. It was appealed and a final decision was made in 2018. The federal judge dismissed the appeal, finding “to have taken an animal would require the action be a grave threat or have the potential to be a grave threat to the animal’s survival, and PETA did not provide evidence of conduct that met that standard.”
A recent lawsuit filed concerns Sk'aliCh'elh-tenaut’s tank size and the new license granted by the USDA under the Animal Welfare Act. PETA filed the lawsuit against the USDA in 2016, and it is currently on appeal. For years, animal advocacy groups have argued that Sk'aliCh'elh-tenaut’s tank is far too small for her size and intellect, and they soon had what seemed like the support of the federal agency. In a report released in 2017 by the U.S. Department of Agriculture’s Office of the Inspector General, an audit of Lolita’s tank found that it “may not meet all space requirements defined by the agency’s [Animal Welfare Act] regulations.” The primary measurements in question examined whether or not the trainers’ island podium infringes on Sk'aliCh'elh-tenaut’s living space. However, the court found that the USDA did not violate the AWA by granting the license and the plight of Sk'aliCh'elh-tenaut needed to be brought up with Congress, instead of under an administrative procedure. The case was dismissed and appealed. The status of this case is still pending.
Sk'aliCh'elh-tenaut remains imprisoned. Her story illustrates the need to transform our legal system. After 50 years, it's time for Sk'aliCh'elh-tenaut to go home. Her right to exist, thrive, and evolve has been denied to her from the time she was stolen from her family to today living as a for-profit entertainment item in the world’s smallest orca tank. This is why ELC is working with Squil-le-he-le (Raynell Morris) and Tah-Mahs (Ellie Kinley) of the Lummi Nation, who consider the orcas and Sk'aliCh'elh-tenaut their relatives under the waves. We are exploring all legal strategies that have yet to be tried, including indigenous rights as well as the rights of Sk'aliCh'elh-tenaut herself, to finally release her and see her return home.
Sk’aliCh’elh-tenaut’s future and return back to the Salish Sea will be monitored by not only the Lummi Nation but also by a highly committed community of scientists and experts. International experts led by the Whale Sanctuary Project are collaborating on the development of an operational plan in anticipation of MSQ agreeing to her release. The development of the plan will draw upon the knowledge of those with specialized experience in marine mammal rescue, transport, rehabilitation, research, repatriation and long-term care. Many have been thinking about the details of Sk’aliCh’elh-tenaut’s repatriation for years and believe if she is healthy, she can be transported safely. The goal is to bring her home in a responsible manner. This means ensuring everything is done in her best interest through steps such as a pre-transport evaluation, conditioning, on-site care at the Salish Sea site and long-term enrichment. Earth Law Center is committed to provide Sk'aliCh'elh-tenaut her opportunity to swim once again in the Salish Sea and hope you will join us.
You can support this initiative by:
Signing and sharing the petition
Contacting Miami Seaquarium and it’s parent companies (Palace Entertainment, Parques Reunidos, EQT Group, Groupe Bruxelles Lambert, and Corporación Financiera Alba) to let them know you want to see her released!
https://aldf.org/case/challenging-the-usda-for-licensing-miami-seaquarium/
https://www.miamiherald.com/news/local/environment/article16159679.html
https://www.peta.org/blog/lolitas-friends-push-forward-lawsuit-seaquariums-license/
https://www.miamiherald.com/news/business/article154928954.html
https://www.casemine.com/judgement/us/5c180e48342cca0c3163735a
http://www.orcanetwork.org/Main/index.php?categories_file=Free%20Lolita%20Update%20146
Sk’aliCh’elh-tenaut and the Lummi Nation (Lhaq'temish)
Sk’aliCh’elh-tenaut and the Lummi Nation (Lhaq'temish)- a story of kinship, relationship, family, connection and justice
My name is Nick Nesbitt and I am presently located in Collingwood, Ontario, the traditional land of the Petun, Anishinabewaki, Huron-Wendat, and Mississauga. Throughout my writing, I do not intend to speak on behalf of BIPOC communities but will use my voice to bring attention to matters that disproportionately affect underserved communities, lands, and people. I want to acknowledge my own privileges as a settler in what is currently Canada and emphasize my commitment to Etuaptmumk (Two-Eyed Seeing). My goal as an ally is to reduce environmental injustices by encouraging just action and demanding political accountability. I want to mention ‘The Dish with One Spoon’ treaty (created to promote peace and sharing) to highlight that we all share the same land. It is our collective responsibility to ensure this dish is never empty through respecting, honouring, and protecting the land and all life that it is home to.
Introduction
It is not completely uncommon for people to feel a deep connection with Nature. I do. And I believe I can speak for all of my colleagues at the Earth Law Center in saying, we do. After all, as humans, we are part of Nature, part of the Animal Kingdom. Unfortunately though, over the course of history, especially Western history, there has been this attempt to remove humans from Nature, to place humans above Nature, to control Nature, and to profit from Nature. And what has this led to? Ecosystem degradation on unprecedented scales, climate change, species loss, and the list goes on and on. However, one facet of this gross assault on Nature that often flies under the radar is our own intraspecies abuses. Abuses that come in the form of cultural genocide. Abuses, by which human beings have been stripped of their way of understanding and connecting to the world around them.
In June, ELC announced our partnership with two members of the Lummi Nation, Squil-le-he-le (Raynell Morris) and Tah-Mahs (Ellie Kinley); a partnership that aims to bring Sk’aliCh’elh-tenaut (also known as Tokitae or her stage name, Lolita) home to the Salish Sea. 50 years ago, Sk’aliCh’elh-tenaut was captured violently, and without the prior consent of her family (her mother Ocean Sun is still alive in the Salish Sea). She was placed in a small tank and has been performing shows for profit ever since. And while the release of Sk’aliCh’elh-tenaut would be justice for her, it would also be for justice for Lummi Nation (Lhaq'temish), because at the heart of this matter lies a great disconnect between culture and law that must be rectified. This blog delves further into the indigenous aspect of this campaign.
"We're at a time when we all need healing," Tah-Mas added. "We're all family, qwe'lhol'mechen and Lummi people. What happens to them, happens to us."
The Lhaq'temish, “The Lummi People”
The Lummi Nation is a Native American tribe of the Coast Salish ethnolinguistic group in the Pacific Northwest region of Washington state in what is currently the United States. And to put it simply, the Lummi Nation holds a worldview that regards plants, animals, springs and trees as thinking and feeling beings that are sacred. Their human-Nature connection is one that understands and views Sk’aliCh’elh-tenaut as a member of their family. What better way to learn more about them than from their own words:
Jewell James and Doug James, Jr. Lummi tribal members
We are the Lhaq'temish, “The Lummi People”. We are survivors of the great flood. With a sharpened sense of resilience and tenacity we carry on. We pursue the way of life that our past leaders hoped to preserve with the rights reserved by our treaty. We will witness and continue to carry on our Sche langen. We are fishers, hunters, gatherers, and harvesters of nature’s abundance and have been so since time immemorial. We are the original inhabitants of Washington's northernmost coast and southern British Columbia known as the Salish Sea and the third largest Tribe in Washington State serving a population of over 5,000. We are one of the signatories to the Point Elliot Treaty of 1855. We are a fishing Nation and for thousands of years we have worked, flourished and celebrated life on the shores and waters of the Salish Sea. In 1855 our ancestors signed the Point Elliot Treaty ceding lands to the United States government in exchange for our Reservation lands and guarantees to retain the rights to hunt, fish, and gather at our usual and accustomed grounds and stations and traditional territories. We have exercised these rights since time immemorial and intend to maintain these rights for our children into perpetuity. We are a Sovereign Nation and Self-Governing Nation...
We understand the challenge of respecting our traditions while making progress in a modern world. We know we must listen to the wisdom of our ancestors, to care for our lands and waterways, to educate our children, to provide family services, and to strengthen our ties with the outside community. We continue to invest in our tribal economic development and training our people to use the most modern technologies available while staying attentive to our tribal values. We envision our homeland as a place where we enjoy an abundant, safe, and healthy life in mind, body, society, environment, space, time, and spirituality where all are encouraged to succeed and none are left behind.
The commitment to ‘leave none behind’ aligns with the immediacy of this issue. As Tah-Mas explains, "Sk’aliCh’elh-tenaut was taken from her family and her culture when she was just a child, like so many of our children were taken from us and placed in Indian boarding schools. Reuniting her with her family, reuniting her with us, helps make us all whole.”
A deep relationship with orcas
Sk’aliCh’elh-tenaut belongs to L-pod. She belongs to the Salish Sea. She belongs to herself: she has the inherent right to be home and to be free. But, as Tah-Mahs brings to light, she also belongs to the Lummi Nation’s larger sense of family.
The Lummi term for “orca”, qwe’Ihol’mechen, translates literally to “our relations under the waves.” Like this, Lummi tradition acknowledges blackfish as kin and a cultural keystone species. Cultural keystone species are species of exceptional significance to a culture or a people and can be identified by their prevalence in language, cultural practices, traditions, diet, medicines, material items, and histories of a community. In effect, such a species influences social systems and culture and is a key feature of a community’s identity. As a cultural keystone species, the Lummi people and the qwe’Ihol’mechen have shared deep spiritual connections, kinship bonds, and cultural affinity since time immemorial. Thus, Sk’aliCh’elh-tenaut belongs to the Lummi people as both a family member and as the embodiment of necessary cultural and spiritual weight and meaning.
Sadly, on August 8th, 1970, Sk’aliCh’elh-tenaut was captured alongside approximately 80 other Orcas at Penn Cove, Washington. From that day on, the South Salish Sea orcas' place, as a cultural keystone species, was put into jeopardy. And the traumatic events of that day in 1970 are still being felt to this day. “They were herded in by dynamite and underwater explosions, into a cove, and they took whale after whale.” Residents of Penn Cove remember “the haunting sounds of the screams of the killer whales.” You can watch the video of Sk’aliCh’elh-tenaut’s capture here: http://www.youtube.com/watch?v=iUlbZifjoqo.
Penn Cove, place of capture
Last year Squil-le-he-le and Tah-Mahs, two Lummi members, sent a letter to the Miami Seaquarium, Palace Entertainment, and Grupo Parques Réunidos (the owners of the Seaquarium) asserting that Sk'aliCh'elh-tenaut qualifies to be returned to her native home based upon the Native American Graves Protection and Repatriation Act (NAGPRA), a federal law that requires the return of certain Native American "cultural items.” To no avail, their pleas have been ignored. Their beliefs have been disregarded. And while it seems odd that they have to do this in the first place, the disappearance of cultural items, and such disregard for Indigenous culture and worldview in western society and legal systems, unfortunately, is not uncommon.
A disconnect between culture and law
In speaking about bison and a similar biocultural atrocity, Dr. Leroy Little Bear, a respected Kainai elder, Blackfoot scholar, a professor emeritus at the University of Lethbridge in Alberta and an Officer of the Order of Canada notes that “[T]he disappearance of iconic symbols in a society means the beginning of the disappearance of a culture… Imagine what would happen to Christians if all Christian crosses and churches were gone. The disappearance of the buffalo had a similarly devastating effect on our people. Our youth now hear our buffalo songs, stories, and watch our ceremonies, but they do not see the buffalo roaming around.”
As an experiment: Reflect on your lifestyle, or way of life, the people and things that you would not be whole without. What makes you, you? Now imagine you are no longer able to perform that activity, see your loved one or that trait or object is taken from you. How do you feel?
The essence of the Lummi way of knowing, doing and being is based on the interrelatedness and interdependence of humans and Nature. A number of Indigenous nations and allies have been working on reviving the Orca population in the Salish Sea, to restore the human-orca biocultural landscape and revive the culture-Nature connection. However, by allowing Sk’aliCh’elh-tenaut to remain in captivity, the American legal system is failing both Sk’aliCh’elh-tenaut and the Lummi People. And this is because the American legal system understands Nature, not for what it is, a complex and well-organized system of finite character, but instead, as a source of endless profit and growth potential.
To better understand how American environmental laws evolved to protect extraction and consumption as opposed to life and cultural understandings of the world, one must look to the conservation ethic developed at the turn of the 20th century, by the first chief of the U.S. Forest Service, Gifford Pinchot. Pinchot, wrongly asserted that water, land, forests, air, soil, and wildlife are “resources” or “wealth” to be extracted, manipulated and controlled for human benefit. Such conceptions spread far and wide and became the guiding principle for human-nature interaction in the United States. And thus, America’s environmental laws, built on Pinchot’s ideological framework, developed into an elaborate network of permits and regulations that “control” uses, to treat the symptoms of accompanying environmental deterioration only just enough to avoid inconvenient, short-term, human impacts.
Social Gabe Flickr
Indeed, Pinchot’s ideology prevailed, and under American environmental laws ecosystems’ needs, and collective long-term requirements, have become mere afterthoughts. But not for everyone. No. Instead, Indigenous people’s have remained steadfast in maintaining that the environment has intrinsic value on its own. And hence, Indigenous peoples have been on the frontlines fighting to rectify the weakness in current law that is allowing or at least not preventing deteriorating environmental conditions of ecosystems.
The reunification of family and life
In 2018, Jay Julius, Chairman of the Lummi Nation released the following statement when declaring the Lummi Nation’s intention to bring Sk’aliCh’elh-tenaut home to the Salish Sea: "Tokitae’s [Sk’aliCh’elh-tenaut] story is more than a story of a whale. Her story is the story of the Native peoples of this country who have been subjected to bad policies. Because of the failure of policymakers to protect our wildlife, she was stolen from her family 47 years ago and taken to the Miami Seaquarium. Because she is a relative of the Lummi people, it is our sacred obligation to bring her safely home to the Salish Sea.”
Today, two-years later, Sk’aliCh’elh-tenaut remains a captive of the Miami Seaquarium. But more broadly, a captive of western society. A captive of a society that allowed her to be stolen, traded, treated inhumanely, and prostituted for financial gain. And to this end, she is representative of the lasting effects of a colonialism that decimated both Indigenous and Orca communities. And she is symbolic of the struggles endured by Indigenous communities everywhere, but especially the struggles of the Lummi Nation who believe that it’s their sacred duty to protect the lands, waters, and communities of the Salish Sea.
Earth Law Center feels it is our moral and ethical obligation to provide legal representation to Squil-le-he-le and Tah-Mahs, who are working to fulfil their Xa xalh Xechnging (sacred obligation). It is therefore our task to work across cultures and borders, to heal the ecosystems, the economies, and communities of all those who now call this place home. We are committed to protecting the lifeways and culture of Lummi, and honouring the larger ecosystem of which we’re all apart.
The Miami Seaquarium’s failure to return her to the Salish Sea implicates their rights as Native Americans under US law and their rights as Indigenous peoples under international law (particularly the United Nations Declaration on the Rights of Indigenous Peoples).
Our message to the Miami Seaquarium and their parent companies, Palace Entertainment, the Spain-based leisure park operator Parques Reunidos, and the Swedish-based global investment organization EQT, is that allowing Sk’aliCh’elh-tenaut to remain in captivity is entirely incompatible with supporting Indigenous rights. We ask all of these companies to listen to Indigenous voices, which have long known what many are only beginning to realize: that Sk’aliCh’elh-tenaut and all life on our planet has inherent value and rights that we must respect. The era of corporate exploitation of nature and of Indigenous communities must come to an end. It is not too late for these companies to do the right thing and to cross over into the right side of history. The Lummi people, as family members, know what is best for Sk’aliCh’elh-tenaut, and we must listen.
On September 24th we jointly held a virtual event on the 50th anniversary of Sk’aliCh’elh-tenaut’s arrival at the Seaquarium. You can watch the event here, which includes ceremonies sent from Indigenous peoples worldwide in solidarity.
Squil-le-he-le and Tah-Mahs and Samuel (Seminole Tribe) performing ceremony outside MSQ
JOIN US!
Collective support for this campaign has been growing for decades; over 20 petitions have been launched over time to bring home Sk’aliCh’elh-tenaut, with collective signatures at over 615,000 people. Countless others support this campaign in spirit. The global community is calling for the release of Sk’aliCh’elh-tenaut based on her own inherent rights, Indigenous rights, and other legal and moral justifications.
Anyone can sign and share the petition.
We are asking indigenous leadership to stand in solidarity with Squil-le-he-le and Tah-Mahs by publicly signing onto this letter. This living document will be submitted to the Special Rapporteur on the rights of Indigenous Peoples.
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Who Speaks for the Ocean?
By Michelle Bender
Constituting more than 95% of the biosphere, the Ocean supports all life forms by generating oxygen and absorbing carbon dioxide, recycling nutrients, and regulating global climate and temperature. However, in just the past 50 years, overfishing, climate change, and plastic pollution have caused half of the Ocean’s species to disappear.
Our solutions are essentially band aid solutions, aiming to slow the decline in ocean health, but not aiming to stop or reverse it. Governments and industry continue to pollute and degrade marine ecosystems under the false assumption that activities which support conservation are costs to the economy and human livelihood. We see this time and again; scientific fishing restrictions are ignored for higher quotas to please fishermen, oil leases are sold in biodiverse or fragile areas because we seemingly profit more by exploiting an ecosystem rather than leaving it alone, and we resist the transition to renewable energy or sustainable gear because it does not produce the same profit margins.
We need a paradigm shift in how we value and treat the Ocean. We must recognize what indigenous people have known for millennia- that we have an intimate relationship with the Ocean and have a reciprocal responsibility to protect and conserve that which sustains us. Otherwise, we will continue to place our needs above that of the Ocean — and the health of the planet and subsequently human health will deteriorate.
Transforming our relationship with the Ocean
Ocean Rights is an emerging legal framework that transforms our relationship with the natural world. The Ocean shifts from being viewed as a resource and property here for human use, to a living entity with intrinsic value worthy of representation. Such a transformation allows us to effectively conserve and protect the Ocean by creating standards for decisionmaking centered around reciprocity, interconnectedness, responsibility and relationships, sustainability (an ecocentric view) and harmonious living.
For example, in 2008, Ecuador amended its Constitution to include the Rights of Nature, becoming the first country in the world to recognize that Nature has rights to exist, restoration and representation. Since, the general public has made multiple stands to protect the environment. Ecuadorians have stood up against the destruction of the Vilcabamba River by a road widening project, the destruction of Mangroves by shrimp farms, and helped to prevent a dolphinarium, all in the name of the Rights of Nature. In fact, there have been over 30 cases brought on behalf of Nature in Ecuador, both by the government and civil society.
And in 2017, New Zealand recognized the Whanganui River as a legal person - divesting ownership of the ecosystem. The Act created a guardianship system for the River, designating those who are legally responsible to represent the rivers interests in decisions and disputes, and to “promote and protect the health and well-being” of the river. Many ecosystems worldwide, including forests, and mountains, have followed suite.
The Ocean Race Summit in Newport, RI
In May 2020, The Ocean Race Summits brought together over 200 industry leaders, conservationists and experts virtually from The Hague to explore topics related to innovative solutions to restore ocean health. Ocean Rights was introduced at the summit, and you can watch the action lab here. The Ocean Race Summit on September 16th will gather, also virtually, a similar amount of leading voices on ocean health conservation from Newport, RI who will delve further into the Ocean Rights framework, in particular with respect to the High Seas. Here’s the link to watch the live streaming from 10am EDT.
With nearly two-thirds of the Ocean beyond areas of national jurisdiction (collectively called the High Seas), coordinated international action is necessary to protect ocean health.
In 1982, the United Nations Convention on the Law of the Saw (UNCLOS) established the first international legal order for ocean governance. It is the primary international agreement that regulates the rights and responsibilities of nations regarding their use and treatment of the Ocean. The treaty that resulted from the convention creates guidelines for State activity in international waters, including business, diplomacy, mineral rights, pollution control and fishing rights. However, the legal and policy framework created by UNCLOS is insufficient in dealing with the increasing environmental crisis.
UNCLOS provides that States have a duty to conserve the marine environment, and can create their own regulations within their 200 nautical mile jurisdiction to do so. But we know that there is not a distinct border between a State’s territory and international waters. Ecosystems are fluid. What happens in one ecosystem spills over into others. So how can we ensure that the interconnectedness of ecosystems is taken into account properly? We also know that there is no clear definition of what is a ‘healthy Ocean’ and therefore at what level a States “duty” is fulfilled. Can we better define “healthy” and ensure conservation is effective and long-term?
Ocean Rights may be the missing link. Ocean Rights enables a shift from an anthropocentric approach, where human objectives are prioritized and decisions focus on human benefit and utility - to an ecocentric approach, where we place humans as within and a part of the larger Earth system. This could mean creating a guardianship model for the Ocean as they did in New Zealand, or recognizing the Ocean has rights as they did in Ecuador. There are many approaches we could take to transform our relationship with the Ocean in a way that allows both humans and natural communities to thrive.
Join environmental lawyers, policy experts, activists, advocates and sailors September 16th to discuss ‘Who Speaks for the Ocean?’ We will delve into how can we ensure the Oceans’ interests and needs are a priority in decisionmaking, nationally and internationally? How might this look like in practice?
Great progress can be made when we have the collective will to do so. Business as usual is destroying the Ocean and we must transform our relationship with the Ocean in order to ensure a sustainable future for all.
Participation in the Summit is primarily by invitation, but most of the broadcast (the 5 plenary sessions) will be streamed live for public viewing on www.theoceanrace.com. Watch on the livestream - September 16 – 10am-1pm EDT/1600-1900 CEST - Here.
About the author: Michelle Bender is the Ocean Campaigns Director at Earth Law Center (ELC) www.earthlawcenter.org, spearheading an innovative and paradigm-shifting solution to our ocean management challenges. She serves on the executive committee of the Global Alliance for the Rights of Nature; and is a member of the IUCN's World Commission on Environmental Law. Michelle graduated Summa Cum Laude from Vermont Law School, where she earned a Master’s in Environmental Law and Policy and holds a B.S. in Biology with a Marine Emphasis from Western Washington University.
Earth Law Center joins the fight to free Sk'aliCh'elh-tenaut
Earth Law Center (ELC) announces our partnership with two tribal members of the Lummi Nation, Squil-le-he-le (Raynell Morris) and Tah-Mahs (Ellie Kinley) to bring Sk'aliCh'elh-tenaut (also known as Tokitae or her stage name, Lolita) home to the Salish Sea.
Earth Law Center joins the fight to free Sk'aliCh'elh-tenaut
By: Michelle Bender
Earth Law Center (ELC) recently announced our partnership with two tribal members of the Lummi Nation, Squil-le-he-le (Raynell Morris) and Tah-Mahs (Ellie Kinley) to bring Sk'aliCh'elh-tenaut (also known as Tokitae or her stage name, Lolita) home to the Salish Sea. This campaign is about more than a single Orcas story and release. It is a story of kinship, family, culture, Indigenous rights, morals and ethics and the rights of all species.
Orcas are family, not property
The Lhaq'temish people of the Lummi Nation are Indigenous peoples on the coast of northern Washington and southern British Columbia. The Lummi Nation has a strong connection with the Salish Sea, and has for thousands of years, and this includes the Sea’s inhabitants. Last year, Lummi Nation gave Tokitae the Lummi name “Sk’aliCh’elh-tenaut,” which means that she is a member of Sk’aliCh’elh, the resident family of Orcas who call the Salish Sea home. The Lummi term for “Orca” is “qwe’lhol’mechen,” which means “our relatives under the water.”
Orcas are their family, and there is one family member missing.
Sk'aliCh'elh-tenaut was captured violently, and without prior consent of her family (her mother Ocean Sun is still alive in the Salish Sea), 50 years ago, and has lived in a tank at the Miami Seaquarium ever since. She has been on display in a small 80 ft. long, 20 ft. deep tank in hot sunny Florida, catering to the guests of the aquarium and performing two shows a day (outside the pandemic). Her well-being has taken a backseat to profit, being forced to perform even if she just had a procedure and could barely keep her eyes open. Many attempts have been made throughout the years to have discussions and come to a resolution with the owners of Miami Seaquarium, but they stand firm in the belief that she is well taken care of and happy. But Sk'aliCh'elh-tenaut has been screaming for help since her capture. [More on the history of Sk'aliCh'elh-tenaut’s life (her capture and life in captivity) will be in our next blog, so stay tuned.]
Photo by: https://sacredsea.org/resources/
Squil-le-he-le and Tah-Mahs answered the call to bring Sk'aliCh'elh-tenaut back to her home to the Salish Sea, and believe this is the year. Indigenous peoples acknowledge a sacred obligation to “ensure all relations are treated in a dignified manner that reflects tribal cultural values.” The Lummi Nation, therefore, believes they have a sacred duty to take care of the Southern Resident Orcas (also known as Southern Resident Killer Whale), and protect the lands, waters and communities of the Salish Sea. Teachings indicate not only a deep cultural affinity and a spiritual connection between qwe’lhol’mechen and Lummi people but also deep kinship bonds. As Tah-mahs believes, “What happens to qwe ‘lhol ‘mechen happens to us. When they’re whole, we’re whole. She needs her family and her family needs her.” This echoes what Governor Inslee said after signing an Executive Order to produce more actions to recover the endangered population of Southern Resident Orcas: “Orcas are part of our identity as Washingtonians and we’ve gotten one step closer in protecting them, their homes and our own survival as we enter an unknown era of climate change. Our economic and climate change efforts need to aid their survival. For as the Orca go, so go we.”
An opportunity to bring Sk'aliCh'elh-tenaut home
As a result, in July 2019, Squil-le-he-le and Tah-Mahs announced an intent to sue the Seaquarium for a violation of the Native American Graves Protection and Repatriation Act (NAGPRA), in order to elicit Sk’aliCh’elh-tenaut’s release.
Previous lawsuits have tried to release her but to date have been unsuccessful. These lawsuits largely fall under the purview of the Endangered Species Act and the Animal Welfare Act. NAGPRA could be the missing link. Under this federal law, enrolled tribal members of federally recognized tribes may request the respectful return of remains, funerary objects, sacred objects, and objects of cultural patrimony held by an institution. As the National Park Service states: “By enacting NAGPRA, Congress recognized that human remains of any ancestry must at all times be treated with dignity and respect. Congress also acknowledged that human remains and other cultural items removed from Federal or tribal lands belong, in the first instance, to lineal descendants, Indian Tribes, and Native Hawaiian organizations.”
Therefore, NAGPRA has the ability to incorporate the culture and traditional knowledge of Indigenous peoples, and in particular honor their rights, which has been underutilized in previous attempts to bring her home. Sk’aliCh’elh-tenaut is not only family, but the embodiment of spiritual and cultural power and tradition. The relationship that exists between both Ellie and Raynell is one that contains both tangible and intangible cultural and spiritual properties. As Dr. Kurt Russo said, “NAGPRA is about cultural patrimony. This is not just about a single killer whale and two people, it’s about an essential sense of belonging that cannot be adequately expressed in legal language.” In 2018, the Affiliated Tribes Of Northwest Indians passed Resolution #18 -32 in support of the Lummi elders beliefs, recognizing that Sk’aliCh’elh-tenaut’s “capture and captivity are all one interconnected and continuous crime against nature and a violation of our ancestral cultural values such that it is our sacred obligation to reunite her with her family where she can assume her rightly place in the natural order, live out the remaining decades of her life in accordance with natural law, and help bring healing to the past trauma of L-pod.”
Earth Law Center works to transform our relationship with Nature
ELC believes that it is long past due to return Sk’aliCh’elh-tenaut to her native habitat and ancestral waters. ELC works to advance ecocentric law, aligning human rights with Indigneous worldviews. Indigenous people worldwide are at the forefront of standing up for and defending the Earth. In the traditions of many Indigenous peoples, everything is rooted in their original instructions, or cosmovision; everything is connected and we are all related. It is our responsibility as humans to live in harmony with Mother Earth, because She is the reason for our being. She is our air, our water, our food and our shelter. Every component of the Earth, whether living or nonliving (abiotic or biotic) plays an essential role in maintaining life, and the critical cycles and relationships on the planet. We do not yet know what impacts our development will have on future generations. We have an obligation to leave the Earth no worse, and better, than what we received.
It is also our moral and ethical responsibility to honor the culture and values of our Indigenous peoples. Western law and society has largely lost sight of natural law, and Indigenous sovereignty (collective Indigenous rights); our laws fail to acknowledge that humans are a part of Nature and that the Earth’s systems have limits. The graphic below illustrates this well; current law is human-centered and places us, and the economic system on a higher level than Nature, when in fact humans belong as an equal part of Nature.
ELC, therefore, seeks to fix the inherent flaws in our legal systems, and shed light on the growing awareness that Sk’aliCh’elh-tenaut and Orcas as a species, are living beings, with family relations, culture and knowledge of their own. We are committed to protecting the worldview and culture of our Lummi partners, and respecting and honoring the larger ecosystem of which we’re all a part.
It’s quite simple really; our current legal system thinks of species and ecosystems as “objects” “property” or “natural resources.” This same system views Orcas as animals to be used for profit, rather than kin. What if we were to liken Orcas to family relations as the Lummi do? Orcas are sentient and intelligent beings, they feel emotion, grieve, form deep bonds, work and travel together, and have a sense of culture within their pods-- all traits shared with the human race. As kin to us, qwe’lhol’mechen and Sk’aliCh’elh-tenaut have rights, just like humans have inherent rights just for being. When our children are born they may not know what rights they have, or be able to speak up for such rights themselves, but their parents or guardians can speak on their behalf. Just as most would not let their child knowingly starve, be taken from them or be subjected to cruel treatment, Squil-le-he-le and Tah-Mahs are doing the same for Sk’aliCh’elh-tenaut.
“Our belief is that not only the salmon and qwe ‘lhol mechen [Orca], but all the air, the land, the water, the creatures, they all have inherent rights,” says Dr. Kurt Russo, Lummi Nation. Thomas Berry defines rights as the freedom for all beings to fulfill their duties and responsibilities in the Earth community. In particular, there are three rights for every member: the right to be, the right to habitat and the right to fulfill its role in the ever- renewing processes of the Earth community. As a family member, Sk’aliCh’elh-tenaut has the right to be with her family, free from captivity and home in the Salish Sea. We can certainly seek new laws and policies that reflect this recognition, such as many laws now emerging worldwide under the ‘Rights of Nature’ movement, but ultimately, our values must change. We must redefine and transform our relationship with Nature and the Earth; we must recognize that we are a part of and dependent on a larger community; and we must recognize that we cannot continue on the path of destruction and dominion without consequences.
Join us in supporting Squil-le-he-le and Tah-Mahs’s quest to bring home Sk'aliCh'elh-tenaut. We hope you will continue to follow along in the coming weeks, as we delve deeper into the story of Sk’aliCh’elh-tenaut, Indigenous cultures and rights, the movement towards legal rights for animals, and our advocacy and actions to encourage her return back home to her family.
If you want to support: please sign and share our change.org petition.
There is also a broadcast on Indian Country Today with Squil-le-he-le and Executive Director Grant Wilson.
Robert Pittman- NOAA
ELC Partner Delivers Speech Advocating for Ocean Rights
Earth Law Center has partnered with groups and individuals across the Pacific, including Institut de Recherche pour le Développement (IRD), the Secretariat of the Pacific Regional Environment Programme (SPREP) and Conservation International Pacific Islands Programme plan to create a Convention on the Rights of the Pacific Ocean.
In November 2018 the first meeting of partners and groups produced a Statement from the Collective Thinking of those present to be used to invite communities, businesses, and governments to redefine their relationships with the ocean at local, regional and global scales.
One of our key partners advancing Ocean Rights forward is Jacqueline Evans, the former Director of the Marae Moana Coordination Office at the Cook Islands Office of the Prime Minister. Her lifelong commitment has been to the protection of the marine environment in the Cook Islands and received the 2019 Goldman Environmental Prize for Islands and Island Nations for her work to establish Marae Moana, the Cook Islands Marine Park, over the entire Cook Islands ocean territory.
Photo by: Julius Silver, Aitutaki, Cook Islands
Jacqui recently presented the Keynote Address at the Pacific Workshop on Marine Priorities Leading for the CBD Post-2020 Biodiversity Strategy in Apia, Samoa. Below is her speech.
“With the lessons humanity has learnt about our environment over the last five decades and the more recent awareness that has been raised about the plight of our ocean, the importance of marine conservation is obvious. The impact of our ever-growing, ever-demanding human species has been devastating on the rest of nature. Since the 1950’s we have removed 90% of all large predatory fish in the oceans . It’s estimated that around 10 million tonnes of plastic reaches the ocean each year . That works out to be 300 kilograms of plastic per second. Climate change is transforming our ocean’s chemistry leading to weaker coral reefs and coastlines more vulnerable to the impact of storms.
Following the growth of the environmental movement in the 1960s and 70s, we can celebrate some successes in the battle to save the planet. The implementation of the Montreal Protocol has turned back the tide on ozone depletion . Many countries are now putting in place policies and legislation to reduce their use of single-use plastics. Two years ago the world’s marine protected areas had increased in size by 25 times since the Great Barrier Reef Marine Park was declared in 1975. But we must do more.
The response to this crisis by the way of such things as Environmental Impact Assessments, protected areas, conventions and legislation has been so grossly inadequate that we now find ourselves asking that the international community recognise that the ocean has rights. The right to perform all of her natural functions, the right to have a voice in all of the decisions that affect her health, the right to clean water and a healthy existence.
We are proud in the Cook Islands that our communities and traditional leaders convinced our parliament to fully protect 50 nautical miles around each of our 15 islands. The percentage of our ocean territory protected from industrial fishing and seabed mining under the Marae Moana Act is 16%, or an area of 324,000 square kilometres, about the size of the country of Malaysia. As for the remaining 84% of our ocean territory, the Act states that any economic or research activities in our ocean territory must be consistent with protection and conservation of our marine biodiversity and environment. This means that with current technology, it is illegal under the Marae Moana Act to conduct seabed minerals exploration activities such as the testing of mining equipment. The only types of seabed minerals exploration activities that can legally be done under the Marae Moana Act are species inventories, low impact geological studies, and non-invasive measurements of oceanographic parameters and marine biological studies. It is illegal to mine the seabed under the Marae Moana Act using mining technology that has been developed to date.
But the effectiveness of this law on protecting the remaining 84% of our ocean territory, is dependent on its implementation. This is an important point, in light of setting our post-2020 targets. We must ensure that we invest in the implementation of marine managed space. For example, unless the Marae Moana Act is enforced precisely, using whole-of-society engagement, we are at risk of unravelling the effectiveness of protections under the Act.
The proposal to set a post-2020 target to protect 30% of our coastal and marine areas by 2030 has arisen from multiple studies. A review of 144 scientific studies of marine protected areas concluded that the required coverage to achieve, maximise or optimise biodiversity conservation objectives is 37% . Another review by IUCN found that the minimum percentage to protect a narrow subset of biodiversity values is 30% but that protected areas need to be selectively located, properly designed, well governed and effectively and equitably managed to achieve biodiversity outcomes.
I know that protecting more of our marine and coastal areas is very difficult to contemplate as a marine manager. I know that as Pacific Islanders when we consider our limited opportunities for economic development and the demands on our governments for sufficient budget to support health, education and infrastructure that protecting such a large proportion of our marine environment is a daunting prospect. But the evidence demonstrates that we need radical change if we are to achieve ecologically sustainable development of our marine resources. The alternative is to undermine the years of effort we have already put into managing them.
What is certain is, if we adopt a 30% marine protected areas target, we need to have clear standards for the remaining 70%. We need to invest in the protected areas that we have established and we need to clearly define what is permitted within those areas.
In the face of globalisation, biodiversity has suffered immensely. The rapid loss of species we are seeing today is estimated by experts to be between 1,000 and 10,000 times higher than the natural extinction rate. The impact of our activities are so enormous that scientists have named this geological period the Anthropocene. The driver of the Anthropocene is human population growth combined with our insatiable appetite for excess. Global meat production is increasing and is the single most important source of the greenhouse gas, methane. Agriculture uses more freshwater than any other human activity with nearly a third required for livestock. The demand for seafood has led to enormous pressure on fisheries. The over-consumption of material goods is driving the mining of minerals and fossil fuels. Even the growth in renewable energy is hurtling us towards a potential future of seabed mining because of the increasing demand for minerals like cobalt and rare earth elements.
In the Cook Islands, as with much of the world, we see our youth becoming increasingly angry about this. Our youth are angry that my generation has failed to deliver on climate change policy. These millennials, growing up in a society that over-values so called “economic development”, are angry that we have failed to reverse the trend of biodiversity decline. But because of this anger, I see a new culture on the rise. This new culture calls for greater transparency and accountability in decision-making. They value a plant-based diet, they value local vs imported produce. They value minimalism and condemn the wasteful, throw-away society that my generation has cultivated. These are the changes that are needed to reverse the horrendous statistics I’ve referred to earlier because they address the never-ending demands of the global economy on our natural resources. We must perpetuate these values.
Let’s use this spark of youth action that defies the culture of over-consumption to ignite a global movement. Let’s push for an increase in protected areas and invest more in their implementation and management. Let’s change the economic framework so that pollution is penalised and sustainability incentivised. Let’s take this opportunity to review our biodiversity targets to reflect the radical and transformative change upon which the survival of our species, and all species on this planet depends.”
ELC held a joint-webinar with the IUCN World Commission on Environmental Law and the Ecological Law and Governance Association (ELGA) on June 18th, 2018 on the emerging movement of Ocean Rights. Presenters included Michelle Bender, Ocean Rights Manager at ELC, Jacqueline Evans, and Barbara Lausche, an international environmental lawyer with over 30 years of experience. You can watch the webinar here.
To learn more visit our website.
The Lummi Nation’s Fight for ‘Rights of the Orcas’
ELC is leading a coalition to gain legal rights for the seriously threatened Southern Resident Orcas. This is the third blog in the series on this campaign.
By: Chelsea Quaies and Michelle Bender
The Earth Law Center (ELC) is leading a coalition of community groups, NGOs, scientists and indigenous peoples to gain legal rights for the Southern Resident Orcas. The Southern Resident Orcas (SROs) are an endangered species due to limits on their main food source (chinook salmon) and pollution and disturbance within the Salish Sea ecosystem. This is the third blog in the series on this campaign.
Photo by Frank Busch on Unsplash
History of the Orca of the Salish Sea
The Southern Resident Orca population of the Salish Sea once numbered over 200 individuals. In the last half-century, we have hunted them and destroyed their habitat to such a point where they now face extinction. Captures reached their peak during the 1970s, when a large portion of the population were captured and sold to different marine parks for tourist attractions.
Kurt Russo, a member of the Lummi Nation describes the events that occurred on the day in 1970, when the Orcas were captured. “They were herded in by dynamite and underwater explosions, they were herded into a cove, and then they took whale after whale.” He then discusses how the residents of Penn Cove remembered “the haunting sounds of the screams of the killer whales.” Around 80 whales were captured that day, and this is a large contributing factor to the decline in their population. Due to the significance of the captures on the Orca population, in 1976 a ban on the capture of Orcas for SeaWorld in Washington state was put into effect. After those practices were halted locally, the clan’s numbers rebounded, reaching a peak of 98 members in 1995. They now number 73 individuals.
The Orcas’ social structure is complex and stable. It is based on family groupings of pods, each containing several matrilineal lines. Because females may reach the age of 90, as many as four generations live together in pods containing 1-4 matrilines. The Orcas use similar vocal patterns, or dialects, to communicate with fellow clan members.
The Orcas form and are united by strong emotional bonds. They collaborate with one another in hunting, parenting, and teaching their young. Those most familiar with Orcas describe them as highly intelligent, curious, playful, and problem-solving beings, who experience a full range of emotions: joy, fear, sorrow, frustration, and grief. Recently, their capacity for strong emotional attachment was stunningly evident as an Orca mother carried her dead child for 17 days, over a distance of 1000 miles, before letting go.
Those who know Orcas best describe them as caring protectors of one another, not only of one another, but also, on many occasions, of humans. Throughout history, there have been accounts abound of orcas helping people who were in danger in coastal waters, and there has never been a case of a free-living Orca harming a human. Multiple examples appear in environmental scholar Carl Safina’s book, Beyond Words, What Animals Think and Feel (2015).
The movie ‘Free Willy’ of 1993, shows us not only how intelligent the Orca is, but also how deeply connected we are as sentient beings. It also foreshadows what would soon become a larger movement of freeing Orcas from captivity.
Photo by: Sacred Sea
Lummi Nation of Washington leads the way on protecting Nature
The Lummi Nation, with the traditional name Lhaq'temish, are a Native American tribe on the coast of northern Washington and southern British Columbia. They are a federally recognized tribe and self-governing nation. In 1855, the Lummi Nation signed the Treaty of Point Elliott with the United States which assured these Native American tribes would have hunting and fishing rights and reservations.
The Lummi Nation has always been a strong advocate for their rights and environmental justice. One of their largest accomplishments was their victory in the termination of the Gateway Pacific Terminal project in 2016. This terminal was due to be one of the largest coal exports port in North America, and permits for construction were released in 2011. The terminal would have increased rail-traffic across Washington State and along the Salish Shoreline, and through the Lummi Nation sacred village site of Cherry Point (Xwe’chi’eXen). Cherry Point is considered to be a sacred site due to its historical significance to their culture and their ancestors. The Lummi nation’s arguments against the terminal included that the terminal was a breach of the Treaty of Point Elliott and that by increasing exports and shipping traffic, it would increase the chance of a major oil spill in the Salish Sea and cause irrevocable environmental damage. After many years of fighting, in 2016 the Army Corps of Engineers denied the permit for the construction on behalf of the Lummi Nation’s rights.
Additionally, the Lummi have a strong connection with the Salish Sea, and have for thousands of years, with a majority of its population living on the coast and using the Salish Sea for survival including hunting, gathering and fishing. The Sea is of such great importance to this tribe they developed a campaign to protect the sea and its inhabitants. The campaign includes eliminating any new stressors to the Salish Sea, creating a healthy salmon population and producing a plan to redirect both marine vessels and development ideas. Their dedication became widely known when their journey to save Tokitae, a captured Orca from the Salish Sea that was put on display in an aquarium, became public.
Tokitae also known by her stage name, Lolita, is a Southern Resident Orca taken from her home and family in the Salish Sea in 1970 and sold to the Miami Seaquarium. The Lummi nation relate strongly to the Xwlemi word “qw’e lh’ol me chen” which means “our relations who live under the sea” and have dedicated this word to the Orcas, their family. They relate strongly with the captured Orca, the chairman of the Lummi Nation Jay Julius has said, “Just like Tokitae, members of the Lummi Nation have endured centuries of destructive policies … policies that have separated our families, depleted our salmon runs, desecrated our sacred sites and reduced our traditional fishing area.” Members of the Lummi nation set out on a mission from Washington state to where Tokitae is located to deliver a handmade totem pole designed specifically for her.
Photo by: Sacred Sea
Tokitae is the only survivor of 45 Orcas that were captured during those years of large-scale capture. Tokitae has been living on display in the aquarium for 45 years in a small 80 ft. long, 20 ft. deep tank in hot sunny Florida, catering to the guests of the aquarium and performing two shows a day. The members of the Lummi nation have vowed to bring her back to her home in the Salish Sea, with great plans for reconnecting her with her family, “it’s long past time to return Tokiate to her native habitat and ancestral waters”, with a larger goal this will bring back peace to the Salish Sea. In recent years, the Seaquarium has been served a lawsuit over the welfare and treatment of Tokitae. In July 2019, two tribal members of the Lummi Nation (suing on their own behalf) announced an intent to sue the Seaquarium for a violation of the Native American Graves Protection and Repatriation Act (NAGPRA), in order to elicit Tokitae’s release. The 1990 federal law NAGPRA has been used for the repatriation of archaeological artifacts. Dr. Kurt Russo said. “NAGRPRA is about cultural patrimony. This is not just about a single killer whale and two people, it’s about an essential sense of belonging that cannot be adequately expressed in legal language.”
The goal of her relocation from the Seaquarium back to the wild involves rehabilitation efforts including medical care and supreme husbandry care inside her seapen which will be in a protected area, where her family can come visit. She will then be gradually re-trained for her release into the wild after completion in rehab. The director of the non-profit group Orca Network, Howard Garrett said in an interview, “We would like to see her enjoy her life. We would like to see her be able to swim free in the waters where she grew up.”
The world is also starting to see the harm in keeping cetaceans in captivity. Animal Welfare Institute, PETA and many other organizations and people are fighting to end this practice. You may have seen the movie Blackfish, highlighting this issue, or the use of the hashtag #EmptytheTanks. As a result of coordinated activism, entire countries have banned the practice altogether. Earlier in 2019, Canada passed legislation banning the captivity of whales and dolphins (those already held can remain). Chile, Australia and Costa Rica, amongst others, have also stopped the capture of wild marine mammals with major fines in place if someone is caught doing so.
Within the United States there has also been major changes in the captivity of cetaceans, resulting in legislation banning display of whales and dolphins in New York, South Carolina, Hawaii and California.
Some countries and states have taken the ‘Empty the Tanks’ Campaign one step further, recognizing marine mammals as sentient beings that have rights. On May 20, 2013, India’s Ministry of Environment and Forests banned the keeping of captive dolphins for public entertainment. A statement from B.S. Bonal of the Central Zoo Authority declared that “confinement in captivity can seriously compromise the welfare and survival of all types of cetaceans by altering their behavior and causing extreme distress.” The Ministry even declared that dolphins “should be seen as ‘non-human persons’ and as such should have their own specific rights.” In a policy statement, the ministry advised state governments to reject any proposal to establish a dolphinarium “by any person / persons, organizations, government agencies, private or public enterprises that involves import, capture of cetacean species to establish for commercial entertainment, private or public exhibition and interaction purposes whatsoever.”
Additionally, in California, both San Francisco and Malibu passed resolutions in 2014, expanding towards the notion that cetaceans have rights, namely the right to move freely in their habitat. The Marine Life Proclamation passed in Malibu in 2014 resolved that whales and dolphins have the right to free and safe passage and “encourages citizens of the world to do all within their power to protect them and preserve the oceans in which they were destined to spend their lives.” San Francisco likewise passed the “Free and Safe Passage of Whales and Dolphins in San Francisco’s Coastal Waters” resolution supporting the free and safe passage of cetaceans in their waters and to be free from captivity. Finally, in 2010, a conference held on Cetacean Rights in Helsinki produced a Declaration on the Rights of Cetaceans with the goal of universal adoption.
Campaign for the Rights of the Southern Resident Orcas
The people of Washington State are worried for the Southern Resident Orcas and the lack of governmental and political response in trying to support the recovery of these animals, including their habitat and food supply. The Lummi nation as well as many others, including the Earth Law Center (ELC), believe that systemic change is needed in order to save the population from extinction.
Late 2018, ELC joined with Legal Rights for the Salish Sea (a community group based in Gig Harbor, WA) to create a coalition of groups working towards recognizing the rights of the Southern Resident Orcas. Together, the coalition has made significant strives towards realization of its goals. In the last year alone, the campaign has been featured in over 10 articles. Partners in Pender Island, BC, Canada, have a petition sitting with the Pender Island Trust Council, and the group is working with other local and state policymakers to pass resolutions in support.
The Campaign is in line with the Lummi Nation’s beliefs and goals. Recognizing the rights of the Southern Resident Orcas gives them a higher form of protection, both legally and judicially. These rights include, but are not limited to, the right to life, autonomy, culture, adequate food supply and free and safe passage. Specifically, if rights to free and safe passage are codified for the Orcas, this could create implications and a legal framework in support of the Lummi Nation’s fight to free Tokitae back to the Salish Sea. Therefore, supporting the beliefs and the rights of the indigenous peoples surrounding the Salish Sea is a top priority within the Colation’s campaign.
“Our belief is that not only the salmon and qwe ‘lhol mechen [Orca], but all the air, the land, the water, the creatures, they all have inherent rights,” Kurt Russo, Lummi Nation.
To learn more about the lawsuit, or the Lummi Nation’s Salish Sea campaign visit here.
You can learn more about the ‘Rights of the Orcas’ here and by emailing mbender@earthlaw.org.
You can also support our efforts by donating today.
Rights for the Coral Reefs
Coral reefs across the planet are under attack. How can Earth Law help protect these vital ecosystems?
Figure 1 Clownfish in anemone via Pexels
By Mehrose Akhtar
Coral reefs, the incredibly stunning rainforests of the seas, now battle for survival. But hope exists in the form of innovative solutions. Earth Law Center and partners Howell Conservation Fund and ReefLife Restoration propose to take coral reefs out of the realm of property and insure the reef for the benefit of the whole ecosystem (that includes humans). This approach can include payouts from local businesses, restrictions on use, and programs for restoration, but also requirements for local industry to reduce emissions and land-based pollution.
Two countries, (Ecuador and Bolivia), several rivers (the Whanganui in New Zealand, the Atrato and Amazon in Colombia) and many towns have amended laws to recognize Rights of Nature including Santa Monica, CA and Crestone CO. This approach embodies a holistic view with much promise.
Over the years, countries have designated segments of sea for protection to practice rearing, transplanting and monitoring of reefs. Marine Protected Areas (MPAs) were created to prevent overfishing and destructive fishing practices so corals could recover fast despite any single disturbance. MPAs are categorized as extractive zones, multipurpose zones and no-take zones. Currently, despite MPAs, only 4% of the world’s oceans are protected. The Earth Law Framework applies this approach to the establishment and governance of MPAs to create a legal obligation to protect coral reefs.
Intro to coral reefs
Ocean health depends, in part, on coral reef health. Coral reefs protect coastlines from damaging effects of wave action and tropical storms, provide shelter to many marine organisms, create essential nutrients for marine food chains, help with nutrient recycling and assist in carbon and nitrogen fixing.
The total net benefit per year of the world's coral reefs is $29.8 billion. Tourism and recreation account for $9.6 billion of this amount, coastal protection for $9.0 billion, fisheries for $5.7 billion, and biodiversity for $5.5 billion.
Covering approximately 0.2% of the ocean’s floor, coral reefs usually prefer shallow water at depths of less than 150 feet since they require sunlight to grow. However, some live at deeper levels up to 450 feet. Fascinatingly, they photosynthesize but do not make their own food.
Coral reefs are in fact animals that behave like plants. Thousands of polyps (tiny animals) live together to form colonies. They do so by excreting calcium carbonate exoskeleton beneath them. Over time, skeletons of numerous coral colonies accumulate to build the structure of a reef. Other species, fish, algae and microorganisms then build their homes on or around the reef making it a rich ecosystem. One quarter of all ocean species depend on coral reefs.
Threats to Coral Reefs
It takes millions of years for the reefs to form, but just a few decades or less for them to get smothered by pollution and diseases.
Over half of coral reefs have died in the last 30 years due to pollution, warming and acidifying oceans caused by human activity. Scientists predict that human activity will threaten 90% of the coral reefs by 2030 and almost all of them by 2050 if existing practices continue.
Specifically, coral reefs face threats from:
Physical damage or destruction from coastal development, dredging, quarrying, destructive fishing practices and gear, boat anchors and groundings, and recreational misuse (touching or removing corals).
Land-based pollution that finds its way into coastal waters:
Sedimentation from coastal development, urban stormwater runoff, forestry, and agriculture which smothers corals and interferes with their ability to feed, grow, and reproduce.
Nutrients (nitrogen and phosphorous) from agricultural and residential fertilizer use, sewage discharges (including wastewater treatment plants and septic systems), and animal waste which support microorganism growth that harms corals.
Pathogens from inadequately treated sewage, stormwater, and runoff from livestock pens which causes coral disease.
Toxic substances, including metals, organic chemicals and pesticides found in industrial discharges, sunscreens, urban and agricultural runoff, mining activities, and runoff from landfills which results in coral bleaching.
Trash and micro-plastics can snag on corals and block the sunlight needed for photosynthesis, or entangle and kill reef organisms and break or damage corals.
Overfishing can alter food-web structure and cause cascading effects, such as reducing the numbers of grazing fish that keep corals clean of algal overgrowth. Blast fishing (i.e., using explosives to kill fish) can cause physical damage to corals as well.
Coral harvesting for the aquarium trade, jewelry, and curios can lead to over-harvesting of specific species, destruction of reef habitat, and reduced biodiversity.
Figure 2 Bleached corals. Bruno de Giusti via Wikimedia Commons
Traditional coral reef protection
Both local and governmental organizations have made efforts to protect reefs either through setting goals or through funding:
The International Coral Reef Action Network (ICRAN) first identified that 70-80% of world’s coral reefs are in developing countries and has since worked to strengthen local communities and assist them in managing marine life and coastal ecosystems.
In 2012, United Nations Program (UNEP) partnered with Global Coral Reef Monitoring to execute Green Fins which registered 260 centers globally to implement ecosystem-based marine management in coral reef areas, in line with UN’s sustainable development goal 14. As a result, 15.4% of terrestrial and inland water areas and 3.4% of global ocean were protected since 2012.
Other projects like OneReef restore reefs expand community capacity with science-based monitoring to recover reef health, local trainings, infrastructure to protect reefs and sustainable financing plans. By taking local stakeholders into consideration, OneReef Community Partnership successfully restored 425,000 acres of reef for $2 per acre.
Coral Guardian, a French nonprofit founded in 2012, focused on raising awareness, conducting scientific research of marine ecosystems and proposing optimistic solutions among general public, youth and businesses.
As laudable as these measures are, more needs to be done. A professor at Stanford University noted that scientists do not change the world; political leaders and people do.
Figure 3 School of fish on corals. Photo by Sagar on Unsplash
Case studies of successful coral reef protection
Australia, Indonesia, Mexico and the Caribbean Islands have all successfully implemented coral reef conservation solutions. These places have used market driven approaches, community engagement, piloting, environmental policies, parametric insurance and Rights of Nature approach to protect coral reef ecosystems. We will now have an insight into some of these noteworthy coral reef stories.
Victory for the Great Belize Reef
The second largest barrier reef in the world (and it can be seen from space, see image below), the 200-mile Great Belize Reef hosts 1400 species including endangered ones like the green, loggerhead, and hawksbill turtles, West Indian manatees, the American marine crocodile, and others. UNESCO believes the reef is safe for the time being, and took it off the endangered list in 2018. The Great Belize Reef suffered enormous losses in the years 2009 up until 2018 due to destruction caused by offshore oil drilling. Now thanks to the visionary steps taken by the government and the community, the reef thrives once again.
Figure 4 Great Belize Barrier Reef from space. Jeff Williams (NASA).
So how did Belize do it? According to National Geographic public concerns about the reef heightened after 2011. At that time, a people’s referendum was held, whereby 96% of the people voted to protect the reef and deject oil drilling practices. Oil contracts became illegal due to pressure from the people. In 2016, the government banned offshore oil drilling in all its waters. Then in 2018 the government applied stricter regulations against deforestation of the mangrove trees. UNESCO called Belize’s plan “visionary.”
Not just that, but starting in 2011, the government of Belize also executed other plans to protect its environment. Belize used a new area-based fishing licensing system and verification process to prohibit open access fishing and instead curtailed managed access pilot. Piloting policy aims to improve overall health of the ocean and coral reef ecosystem by licensing fishing and creating no-take zones to sustain marine population. At Belize, only qualified fishermen were permitted to fish. Their fish catch was closely monitored from pilot sites. Unqualified fishers were denied licenses. As a result, fishing violation dropped by 60%.
All these actions, namely environmental taxes for conserving the reef, putting limitations on fishing and boosting its no fishing zone from 3% of its waters to 10%, were appreciated by international organizations. Thus, coral cover increased by 35% and 90% of the species in Belize survived manmade pressures and reproduced. This 9-year struggle resulted in a model to lead ocean and reef protection around the world.
Wakatobi, Indonesia amps up reef protection
5.1 million hectares of coral reefs are located in Indonesia of which 65% is endangered due to destructive fishing practices (namely sand extraction, fishing bombing and overfishing). Many locals in Wakatobi, Indonesia voiced their concerns about the coral reefs.
The manager of the Fisheries office, Nadjib Prasyad stated that protecting coral reefs is like protecting the fish. If coral reefs die, so do the fish. As a result, the government of Indonesia along with Coral Reef Rehabilitation and Management Project (Coremap) empowered local communities to align on reef protection. They sent out radio messages in villages, trained fishermen, educated students in schools and monitored activities to promote healthy fishing and coral reef management.
As a result, Indonesia successfully established coral reef management agencies in 358 villages and witnessed an increase in the income of Coremap areas by 21% since 2008. Additionally, Indonesia also saw a reduction of 60% in destructive fishing practices since 2005. Coremap now forms part of a Coral Triangle Initiative with 4 other countries that are focusing on preserving the reefs.
One of a kind mission in St Croix: the making of coral babies to restore reefs
St Croix, in the Caribbean Sea, is home to thousands of coral reefs species. Scientists and researchers at this island used unique tactics of growing corals in nurseries and relocating them to abandoned reefs.
Figure 5 Photo by Juanma Clemente-Alloza on Unsplash
Nature Conservancy along with its partners used sexual reproduction measures to grow coral babies. Teams swam underwater to collect gametes (eggs and sperm) from Elkhorn Corals. As a result, 750,000 coral embryos spawned in protected nurseries. Over the years, more corals and a diversity of fish re-appeared in that region.
Enter parametric insurance
Parametric insurance offers a new approach to coral reef protection.
Let’s take Hawaii as an example, a place highly exposed to natural disasters. Traditionally, Hawaii depends on the Federal Emergency Management Agency (FEMA) and the National Flood Insurance Program to support disaster recovery. In addition to a limited budget, federal funds only support specific initiatives – leaving the vast majority of losses for the State and counties to pay for. When a storm occurs, like Hurricane Iniki near Waikiki, it means three years of total government spending.
Traditionally, a disaster happens then months (or years) later payouts appear - while parametric insurance pays out as soon as an index is reached (in as quickly as ten to twenty one days). Payout for this type of coverage is set in advance of purchase, by estimating the loss as accurately as possible, subject to certain conditions being satisfied. The policy cost is based on a predetermined trigger. In case of Hawaii, if it uses parametric insurance, that could set a trigger for natural disaster to be based on the maximum wind speed of a hurricane as it passes through a specific covered area, such as the Ala Wai watershed. So, any hurricane with one-minute maximum winds of ninety-six miles per hour or higher, as it passes through the Ala Wai watershed, would result in a payout.
Not just an idea, Mexico has already used this approach to protect part of the Mesoamerican Reef along its Yucatan Peninsula from hurricanes as we have seen above. Although 80% of the the corals in the Mexican Caribbean face bleaching or have disappeared, hurricanes cause the most short term damage. Tourism, which generates about $9 billion a year, helps fund the trust.
In 2006, Mexico’s state government of Quintana Roo, along with Nature Conservancy, pioneered the use of parametric insurance and created a Coastal Zone Management Trust to protect coasts and corals in the Caribbean from hurricane damage.
The government made use of a pre-set financial arrangement of loans and taxes, from local governments and nearby hotels and tourist industry, to protect beaches, wildlife and corals in the Caribbean from hurricane damage. This policy not only acted as a defense mechanism and made reefs more resilient towards damage but it also saved time and helped diminish disputes among various groups regarding economic activities.
How Earth Law can help coral reefs
Rather than treating the ocean and its inhabitants as property, a growing global movement proposes to make Nature a subject that holds rights. This approach strengthens the innovations currently underway to protect coral reefs.
Building on wins around the world, Rights of Nature proposes recognizing ecosystems and species as legal entities. The Earth Law framework goes beyond the traditional methods of “resource” management[ii] to provide a clear legal mandate for managing protected areas as part of a system,[iii] and as part of the whole that humans are also a part of.
Earth Law recognizes that Nature has inherent rights to exist, thrive and evolve. Seeing coral reefs through this lens will help strengthen legal accountability to protect coral reefs. Like many rights-based movements, Rights of Nature will help shift norms in how we see entities that previously did not have rights.
What would this look like in practice?
Decisions that might affect ocean health need to factor in the cost that suffered by a third party as a result of an economic transaction – ocean ecosystems themselves. So the ocean stops being property and a commodity to be bought and sold, and instead becomes a subject with the right to exist, thrive and evolve.
Activities maintain or improve ocean health, and do not further damage it. That means reduced take or no take zones, adoption of eco-tourism and other means of livelihood for local communities, enforced and managed MPAs, inclusion of all stakeholders (including general public and ecosystem guardians) in decision making.
Adopt an approach of early prevention – proactive action to save reefs now, rather than wait for them to further deteriorate. Precautionary management means considering the longer term impact of any activity and remembering that marine ecosystems recover slowly, with many factors at work that we don’t entirely understand yet.
Communities gain the right to defend local marine ecosystems, and take an active role in reef preservation. Recognizing the rights of reefs will ensure healthy livelihood for the locals, promote ecotourism and maintain richness of the ecosystems.
If humans have rights based on their existence, shouldn’t oceans and corals? Read more with responses to frequently asked questions.
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Rights of the Pacific Ocean Initiative
A convention to legally recognize and protect the Rights of the Pacific Ocean is one way that Pacific Islanders can develop a system to adapt to, mitigate and address the root cause of climate change.
Figure 1 Endangered African Penguin by Bernard DUPONT from FRANCE (CC BY-SA 2.0)
By Celeste Coughlin
The United Nations hosted the first-ever United Nations Ocean Conference in 2017, to create an action plan surrounding the enforcement of Sustainable Development Goal 14 on the conservation and sustainable use of the oceans. This conference was the culmination of years of ocean rights advocacy work. Notably, the conference embraced the future of legal rights of the ocean. Alongside Cook Island Prime Minister Henry Puna urging recognition of the Rights of the Ocean, Earth Law Center presented its Ocean Rights Initiative to the UN General Assembly. The initiative, signed by over 70 organizations from 32 countries, urged the United Nations, governments and practitioners to adopt a holistic and rights-based approach to ocean governance.
The Institut de Recherche pour le Développement (IRD) in partnership with the Secretariat of the Pacific Regional Environment Programme (SPREP), Conservation International Pacific Islands Programme and Centre International de Droit Comparé de l'Environnement (CIDCE) also launched a voluntary commitment at the United Nations Ocean Conference.
The commitment includes a feasibility study leading to the drafting of a regional convention, open to all signatories by 2020, recognizing the Pacific Ocean as a legal entity with its own legal rights. Such a framework has been successfully applied in New Zealand (the Whanganui River, Te Urewera National Park and Mount Taranaki), in India (Narmada River) and in Colombia (Colombian Amazon, Pisba Highlands and Atrato River).
In November 2018, 22 participants from 8 countries, including Earth Law Center, attended a two-day gathering in New Zealand on the feasibility of such an idea. Together, participants agreed it was worth pursuing and produced a statement based on the collective thinking of those present. The statement reiterates the kinship Pacific Islanders have with the Ocean and the recognition that the Ocean is an entity, a being, and our source of life. A regional (or international) convention to legally recognize and protect the Rights of the Pacific Ocean is one way that Pacific Islanders can begin to develop a system that helps them adapt, mitigate and address the root cause of climate change.
The Statement is the first step by participants of the gathering towards advancing a paradigm shift in how we treat the Ocean, and signals intent to preserve the ocean for all life for future generations. Next steps identified by those present include: creating a questionnaire for Island Nations to provide input, research and drafting of how a new regional convention will comply with and advance existing laws, and conducting outreach and education to mobilize widespread support.
“We have a responsibility and obligation to conserve, protect and defend the rights of the Ocean; the rights of past, present and future generations of all beings rely on respect for the rights of the Ocean.” Statement of the Collective thinking.
With this powerful call to action in mind, we look to the various examples of Rights of Nature already in place within Island Nations.
Figure 2 Humpback whale (Megaptera novaeangliae) near its whale calf, breaching off to keep away males.(Tahiti, French Polynesia) © Jérémie Silvestro / Wikimedia Commons
Pacific Island Nations & Biodiversity
The Pacific Island nations are made up of 18 Pacific Island Countries and Territories, 30,000 individual islands, and thousands of square kilometers of coral reef that has been mapped and tracked over the last 5 decades. The 7 million people who are citizens of the Pacific Island Countries who depend on the coral reefs as a part of their daily life rely on the sustainability of the reefs.
These island reefs are home to 30% of all of oceanic life. The unique climate and rich biodiversity make the Pacific Islands a true bio-gem. This part of the world is often written off by Western culture as undeveloped, but it is this particular lack of development that has allowed many types of ocean life to flourish and thrive in the tropical waters of the Pacific Islands.
Figure 3 Map of the Cook Islands
Cook Islands
The Cook Islands created the Te Marae Moana Sanctuary in 2017. The Prime Minister of the Cook Islands said at the UN Ocean Conference, "[W]e must consider the rights of the ocean. For just as those who have been treated unfairly have found it necessary to fight for and claim their rights, so too has the ocean been treated with injustice and disrespect. And so now we find it necessary to fight for the rights of the ocean.”
The sanctuary is “the world's largest integrated ocean management system.” Te Marae Moana is considered “the largest commitment by any country to integrate ocean conservation and management from ridge to reef and beyond.”
The primary purpose is the protection and conservation of the ecological, biodiversity and heritage values established by native Cook Islanders. Established over the entire Cook Islands marine space, the act also encompasses 1000 meters above in the air and 1000 meters below the seabed, which lends itself to three dimensional protections to prevent future oil pipelines. The secondary purpose is integrated management which focuses on stakeholder participation. Economic use is the tertiary priority.
Creating the Sanctuary in this way, signifies a transition from most Marine Protected Areas. Here, the entire space is created with the highest level of protection. In fact, they protected the whole area outright, and do not allow large scale fishing and seabed mineral activities within 50 nautical miles of the islands. Now that everything is protected, they then decide if and where activities are permitted through a process of impact studies, advisory opinions and council approval. This means that if activities like fishing or seabed mining are on the table, those wishing to undertake those activities must make the case that it will be consistent with the primary purpose of conservation.
Figure 4 Bay on North Shore, New Zealand by Abaconda Management Group from New Zealand (CC BY-SA 2.0)
New Zealand
New Zealand leads the world in legal personhood legislation having designated a national park, river and sacred mountain as legal persons. This feat has allowed the sustainable conservation of natural resources to continue unimpeded.
In March of 2017 New Zealand passed its first legal personhood law protecting the land of Te Urewera. The forested area began its journey as a national park that was turned back to its original inhabitants; the Ngāi Tūhoe people as part of an agreement that acknowledges the ‘Mist People’s deep connection with the land there.
Secondly, the Māori tribe of Whanganui in the North Island of New Zealand has won recognition for the Whanganui River as an ancestor for 140 years. This recognition of the Whanganui river as a person with two appointed representatives from the government and from the tribe serves as a template for the rest of New Zealand’s native people to follow as well.
Most recently, we see the Taranaki volcano granted rights to personhood too. Mount Taranaki is categorized as a dormant volcano. The mountain lies in the Egmont national park and is the first mountain in New Zealand to be awarded the status of personhood.
Lastly, the Hauraki Gulf is a coastal bay off the Northern Island of New Zealand. It is a protected wildlife area established in 2000. The gulf is home to many endangered species of marine animals, award winning wineries, and wilderness sanctuaries. Though the Hauraki Gulf initiative does not specifically codify legal rights for the Park, the Sea Change Marine Spatial Plan proposes the recognition of the Park’s rights by calling on communities “to think of the environment as having its own rights.” It also creates the guardianship system with the local native people and extends guardianship to all.
New Zealand's recognition of these peoples’ ties to the world sets forward a powerful precedent in moving the rights of the Pacific Ocean forward.
Australia
The Australian Parliament passed the Water Act of 2007 and as a result, water is protected under the law. This act doesn’t recognize the rights of nature or grant the rights of personhood but it’s a bureaucratic measure to regulate the means of water extraction and use across the continent without granting water the rights to personhood per se. This is one means of managing resources that has proved effective in Australia.
Figure 5 Bondi Beach, Australia by Alex King on Unsplash
As the driest continent in the world, Australia has to consider its resource use carefully. Assigning rights to creeks, lakes, and harbors is a good first step but as an island continent they can do more by extending their moral identification and sympathy to the Pacific as a whole. This will also better defend the rights and cultures of natives to Australia, New Zealand, and the Pacific Islands.
New Caledonia
In New Caledonia, a French sovereign state, the Kanak Charter states, "the lands, resources and natural space as well as the tangible and intangible traditional knowledge attached to it constitute the natural heritage of the Kanak people, for which it is the guarantor and custodian in the eyes of future generations." This led to the development of new law, the environmental code, that states "man belongs to the natural environment which surrounds him and conceives his identity in the elements of this natural environment which constitutes the founding principle of Kanak society. In order to take into account this conception of Kanak life and organization, certain elements of Nature may be recognized as having legal personality with their own rights, subject to the laws and regulations in force." This provides the starting foundation needed for recognition of the Pacific Ocean as a legal entity with rights.
What would the Convention mean for Island Nations?
The Pacific Island Nations face rapid land loss and possible extinction because of rising sea levels, further erosion of legal protection, and a warming planet. This threatens the 7 million people living among the island nations. Today we have an opportunity to work with these communities to build legal protection for the resources that are so valuable not just to those communities but to each of us.
Recognizing the Rights of the Pacific Ocean would begin building sustainable models for growth and protection. The Convention represents the first major step towards rights of nature law in the region coupled with a plan to closely monitor these systems to ensure their effectiveness.
Codified protection of the Pacific Ocean grants power to indigenous peoples and would designate Pacific Islanders as the guardians of the Pacific Ocean, providing the traditional knowledge needed to understand the Oceans’ limits and how to create a harmonious relationship with the Ocean. This would also empower Pacific Islanders to build businesses surrounding the Ocean, as they deem appropriate, that support and conserve the Ocean while providing for jobs and livelihoods.
This, of course, would not be without an outside check. Similar to the set up of the Te Urewera Act, it is likely that there would be a two pronged check and balance management system to the Pacific Ocean Rights.
Further benefits from the Convention on the Rights of the Pacific Ocean include:
Local communities gain the right to defend marine ecosystems from harm
Indigenous nations regain economic power from legal recognition of the long-standing relationship they have with their local ecosystems
Figure 6 Baby Sea Lion, Galapagos. By Michelle Bender.
Finally, the Convention would redress accountability for greenhouse gas emissions. Whereas the current system gives the Kingdom of Toga the same burden as the People’s Republic of China without any regard for their contribution to climate change – the new Convention would also recognize that the Pacific Islanders have in fact contributed very little to greenhouse gas emissions.
We depend on the ocean for our well-being so it’s time to start taking care of marine ecosystems. That protection means recognizing Rights for the Pacific Ocean so we can restore and protect ocean health. Won’t you join us?
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Earth Law for Coral Reefs
Coral reefs are facing multiple threats across the globe, but Earth Law can help save them.
Figure 1 by Li Fei via Unsplash.com
By Sonja Fortuin
Meeting coral reefs for the first time in person
It was a bright, sunny day on the beautiful coast of Mozambique and the day of my first ocean dive. The first attempt was horrible. Things that are effortless on land, like breathing and staying in one place, were a challenge below the surface. Everything inside me said: I never want to do this again.
Back on the boat I instantly got seasick. Luckily, we didn't have time to think. We had to go for our second dive immediately. During the descent I calmed myself with the idea of never diving again. But then I realized I could see everything bright and clear. Diving was amazing! Now I could clearly see the beauty around me: colorful fishes and corals, the sunlight breaking through the waves above me. Later I figured out that between dives I’d accidentally swapped masks with my friend. Seeing life clearly made all the difference.
Figure 3 Bright corals, by Milos Prelevic via Unsplash.com
On that second dive, I realized that I will dive for the rest of my life. If there is going to be something left to dive for… which brings us to coral reefs.
The awesomeness of coral reefs
The more I got used to the weird new dive gear, the more I realized how awesome coral reefs are. They are not only astonishingly beautiful, but also play a vital role in our ecosystem. Although they only cover around 0.2% of the ocean surface, they provide a home to 25% of all marine wildlife. They are the restaurants and nurseries for many species, including big ones that leave once they've grown enough to survive in the open ocean. Every dive I feel so grateful to get a glimpse of the daily life of this broad extremely biodiverse ecosystem. It’s so much more intriguing than I expected.
Keystone species
Some species have bigger impact on the state of the reef than others: the so-called keystone species. If this species disappears, the whole ecosystem will change. Corals themselves are actually keystone species, but there are more.
Parrotfish
Figure 3 Bicolor Parrotfish, by Richard Ling via Wikimedia Commons
When I started diving, I almost only heard my own breathing – and of course the bubbles that come with it. But as I got more confident under water, my breathing became calmer. What was that nibbling sound that I heard all the time? It sounded like someone was throwing tiny pebbles on even more tiny pebbles in a high frequency.
It was the parrotfish. You can recognize these famous keystone species by their bright colors (they always remind me of an eighties tracksuit, but prettier) and ‘parotty’ beaks. They are the garbage men of the reefs, working with great devotion and conforming to the latest standards of sustainability and circularity. They spend up to 90% of their time nibbling on dead coral and algae. And nothing goes to waste: they poop it all out as perfect white sand.
You can imagine what happens to your neighborhood when all the garbage men disappear. Coral reefs can die because of the lack of sunlight and the poison that is caused by an overgrowth of algae. We need our garbage men, reefs need their parrotfish.
Sharks
When it comes to sharks, most people will think of the famous and fierce white shark with its impressive number of sharp teeth that can easily kill a big sea lion. But the enormous and elegant whale shark is also a shark (and not a whale), and just feeds by keeping its mouth wide open while swimming and filtering out all the tiny creatures in its way. I had the chance to compare my swimming skills with this magnificent creature, and it outswam me without any effort.
Figure 4 Whaleshark, by Sebastian Pena Lambarri via Unsplash.com
Most sharks, however, are smaller in size and feed on intermediate size sea life. They tend to hunt old, sick, or slow animals, which leads to healthy populations of a healthy size. The presence of sharks also influences the behavior of animals. In Hawaii, scientists found that tiger sharks had a positive impact on sea grass beds. Without them swimming around, turtles (which are their prey) would spend all their time grazing on the most nutritious sea grass, until the habitat was destroyed.
Strong allies
I must admit, I used to think that fish didn’t have a rich social life. But underwater I could see interaction between sea creatures, within or in between species. Some species have created a very special bond and live in a beautiful symbiosis.
Clownfish & Anemone
My first dives were at a dive site called Clownfish, famous for its… clownfish. These bright, happy looking fish are always seen close to their anemone. The anemone stings every creature that comes close, except its own inhabitants. These inhabitants, which can only be clownfish, couldn’t wish for a safer home and are of course willing to return a favor. They keep the anemone clean, scare predators (even divers!) away and provide nutrients with their waste.
Figure 5 Clownfish in 'its' anemone, by Sebastian Pena Lambarri via Unsplash.com
Clownfish are born gender neutral, later they become male or female. They live in hierarchic schools, led by a female who you can recognize by her slightly larger size and aggressive behavior. If she dies, the male highest in hierarchy turns into a female and takes the lead. These bright little fish are quite social and communicate with each other by clicking sounds. You can imagine how disturbing a boat’s engine, coral blasting or seismic testing would be for them.
Pistol & Goby
‘Pistol & Goby’ sounds like a nice café, doesn’t it? It is another effective partnership that can be found at reefs, although my dive instructor had to point them out for me as they’re not the most flashy animals to be found. The pistol shrimp is very hard working but nearly blind. It spends its time digging and maintaining a nice burrow in the sand, with a kitchen garden on top. As it doesn’t have the time nor ability to look out for predators, the goby keeps watch. The couple ensure they stay in physical contact via the antenna of the shrimp. When Goby spots a potential predator, it waggles its tail to warn Pistol. Pistol rushes inside, and Goby follows soon after.
How did Pistol get his name? He’s got one very big claw that he uses like a pistol. When he sees a tasty meal, he fires a bubble bullet at it with a speed up to 62 miles/100 km an hour.
Harlequin & Starfish
Figure 6 Harlequin Shrimp, via Wikimedia Commons
The beautiful Harlequin shrimps mate for life and love to eat starfish. The couple work together on catching the starfish and twisting it around on its back, which renders the starfish helpless. Often, they drag it to their lair, feed it, and eat only one leg, to keep the starfish alive. The leg will grow back on, so it’s quite gruesome but sustainable farming.
Threats to coral reefs
A coral reef is a beautiful but fragile ecosystem of coral polyps, algae, plankton, fish, minerals, crustaceans and many other forms of life. I’ve seen some bleached coral reefs with only a couple of fish swimming around in search of something interesting. A terrifying contrast to the bursts of biodiversity that we love to see. Human behavior affects coral reefs in many ways, such as:
Rising temperatures
High water temperatures lead to the loss of microscopic algae, which are responsible for feeding the corals and for giving them their bright colors. A temperature rise of 1.5°C will lead to an estimated 70%-90% loss of all coral reefs. An increase of 2°C means we’ll lose 99% of it.
Ocean acidification
High levels of carbon dioxide make the seawater more acidic. This makes it harder or even impossible for corals to harden their calcium carbonate skeletons.
Overfishing
One of the most obvious threats: the fishing industry. Overfishing disrupts the coral reef’s ecosystem, especially when the targets are keystone species.
Pollution
Plastic is one polluter that has received a lot of attention lately. But also, other chemicals (from those used in industries to sunscreen) and sound pollution can damage coral reefs and disturb their ecosystem.
Invasive species
Species that have travelled, e.g. by boat or a floating piece of plastic, from one reef to another can disrupt the ecosystem of their new habitat. Famous examples are the beautiful but brutal lion fish and the rapidly spreading crown of thorns.
Physical damage
Boats and divers can break corals. This happens often unintentionally, with anchors, fins or other dangling objects.
But enough bad news, let’s see what we can do!
Earth Law
Despite many decades of marine protection and legislation, half of the world’s coral reefs have disappeared. So clearly protections need to evolve, to keep pace with the destruction. As with many previous rights-based movements around the world, the worst abuses of disenfranchised groups only stopped when those groups gained legal rights.
Earth Law recognizes nature’s right to exist, thrive and evolve. The belief that nature — the species and ecosystems that comprise our world — has inherent rights has proven to be a galvanizing idea. Earth Law Center is building an international movement that gives a better (legal) grounding to the idea that humans have a responsibility for how we impact the world, and works with local communities to help them to protect their environment from the threats that they see.
Earth Law Governance
Earth Law governance requires different decision making than the type we’re used to. The starting point should no longer be the interests for humanity in the short term, but the inherent rights of the ecosystem in the long term. This means that decisions should be based on the precautionary principle and the true costs of an activity.
For coral reefs, the precautionary principle means that conservation of the whole reef’s ecosystem is the most important objective in the decision-making process. The true costs of diving activities depend highly on their impact on the reef. For example, dive trips on boats with a noisy and polluting engine cause more harm to the reef than silent sailing boats. Giving a score to different types of activities helps in making well-informed decisions.
This type of governance has been laid out in the framework for Marine Protected Areas, that Earth Law Center already developed. You can also read more about Ocean Rights here.
Successful Case Studies of Reef Conservation
Reef protection is more than a theory. There are governments, NGO’s and local communities that have already set examples on how this can be accomplished. Of course, every ecosystem which includes humans has its own characteristics, problems and thus appropriate solutions. A reef on which a whole fishing community depends on, asks for different governance than a reef that lies next to a polluting, prosperous city. But we can surely get some inspiration from what front runners have done already!
Figure 7 Palau, via Wikimedia Commons
Palau
The little islands of Palau form a heaven for the diving community, and they’re high on my wish list as well. Luckily, the president of Palau puts a lot of effort into protecting the reefs and even asked the United Nations for their support.
Have you ever heard of a Bul? It’s also known as a fishing moratorium, which means that fishing is prohibited during spawning and feeding periods. This way, the fish populations can recover. The president of Palau called out a life-long Bul: commercial fishing is banned completely in their Marine Sanctuary as of 2020. Eco-tourism, and especially diving, ought to compensate the loss of income because of this ban. It already forms over half of Palau’s GDP.
Introducing a new law is one thing, but enforcing it is a second challenge. Especially when it concerns patrolling big parts of the ocean, which is the case of Palau with its area the size of France. Palau is now using drones to monitor if there are any vessels in their Sanctuary that shouldn’t be there.
Belize & Co.
Remember the awesome parrotfish? After the International Society for Reef Studies recommended Mesoamerican Reef countries to better protect these ‘bison of the ocean’, Belize was the first to respond by introducing a law that prohibits their catch in 2009. Belize was followed by Bay Island, Honduras in 2010, Guatemala in 2015, and Mexico in 2018.
And the positive effect has been proved! Since 2006, the amount of parrotfish in the Mesoamerican Reef increased, and the first slight decline in fleshy macroalgae was noticed in 2018. The coral cover has also increased over this period of time, although the cover varies every year. Overall, the Reef Health Index improved from 2.3 to 2.8 (out of 5).
Belize continued its efforts by preventing trap fishing and announced it would triple the size of its no-take zones as well as ban single-use plastic and Styrofoam products. Last but not least: they banned offshore oil exploration and drilling. Go Belize!
Thailand
Tourism can be a good (alternative) livelihood for local communities. But mass tourism can cause mass destruction. The popular Maya Bay in Thailand, known from the movie The Beach, was visited by thousands a day. Boats damaged the reef and the black tip reef sharks disappeared. The government decided to close the area for four months. A couple of months after Maya Bay had been closed, the black tip reef sharks returned!
But four months weren't enough to fully restore Maya Bay's nature. Therefore, the officials decided to close the beach indefinitely.
Indonesia
It’s not only up to governments to help coral reefs. In Indonesia, a local fishermen’s forum discussed the problem of catching increasingly smaller fish. They had to put more and more effort into fishing, and used more and more brutal catching tactics. As a solution to their problem, the fishers decided to reduce the catch of rabbitfish, a keystone species comparable to the earlier mentioned parrotfish. In their key spawning months, September to December, the fish were left alone for four days around the full moons. And guess what? Their population rebounded!
The impact of divers
The Mozambican coastal village of Tofo used to be a quiet place where most people depended on fishing for food and income. With the arrival of the diving industry, Tofo became an attraction for people who rather see fish alive under water than dead on their plate. In order to provide an alternative livelihood, fishermen get trained for a diving job. Many former fishermen told me that they had no idea how pretty life under water was. And that they really prefer seeing ocean creatures in their natural habitat (and sharing this experience with others) over catching, killing and selling them. But there are also stories about too many divers diving at the same time, leaving the reef damaged.
Diving at different places with different dive guides, made me realize that diving can have both positive and negative effects. It gives people the opportunity to get to know and love the underwater world. But of course, giving people access to a new world also means that this ecosystem is confronted with new threats. How can divers make a positive impact?
Dive destination
Many interesting dive sites are located in exotic areas. Your decision on where and with who you dive, can make a difference. Besides paying attention to the distance of the destination (going by airplane is unfortunately not very climate friendly), you can also have a look at how dive centers treat the reefs, the local community and the rest of their environment.
Respect underwater life
When I started diving I assumed that all diving professionals have a great passion and respect for the underwater life. Most of them do. Their faces shine when they talk about the ocean's creatures, they show you which hand signs they use to point them out, and emphasize that you shouldn’t touch anything.
But unfortunately, I’ve experienced dive guides who see diving more as ‘just a job’ and a great opportunity to hit on customers. Such a dive guide thinks you are impressed when he pokes a puffer fish until it bloats up, picks up a sea cucumber to show how stretchy it is, or annoys a Red Sea Walkman until it starts walking. If you experience this, please tell them that you prefer to see the creatures in their natural behavior.
P for Plastic
The first time I saw a turtle under water I remember very well. My dive instructor pointed just in front of me, and at first, I didn’t understand what I should see. But then this giant turtle came out of his little cave, right in front of me! I literally floated up of excitement, as a deep breath makes you positively buoyant and causes you to go up. These amazing graceful, peaceful creatures can’t tell the difference between their favorite jellyfish-meal and a plastic bag. When they ingest plastic, it makes them more buoyant. Guess what, it also causes them to float up. And more importantly, it can make it impossible for them to dive down after they surfaced to take a deep breath. This leads to starvation.
There are many other devastating stories about the impact of plastic. I’m sure you have seen pictures of fish, turtles, birds or other animals that are entangled with plastic. Floating pieces of plastic transport toxins and eggs of invasive species from one reef to another, tiny pieces of plastic (micro plastics) get ingested by even the tiniest sea creatures and become an increasingly big part of the food chain (of which many people are part of).
An estimated 80% of all plastic in the ocean, comes from land. Luckily, the fight against plastic has started. Over 40 countries have (partially banned) or taxed single use plastic bags. Kenya has one of the boldest bans: producing, selling or even using a plastic bag can lead to a maximum imprisonment of four years or a fine up to $40,000. Bali had such a huge problem during the rainy ‘plastic’ season, that it banned all disposable plastics. As of 2021, single-use plastic items such as plates, cutlery, straws, balloons, sticks or cotton buds will be prohibited in Europe.
Especially for divers, a new underwater hand signal was introduced by a collective of divers, dive shops and the Plastic Soup Foundation. By making a P for Plastic, divers can show their buddy that they see some plastic and they want to pick it up. Together we keep our oceans clean!
Figure 8 P for Plastic by Plastic Soup Foundation
Sustainable Sunscreen
When you’re out at sea, it’s of course important to protect your skin from sunburn. Unfortunately, about 60% of all sunscreens on the market contain oxybenzone and octinoxate. These chemicals disrupt the growth cycles of coral and can eventually lead to bleaching. It also causes behavioral problems and feminization (males turning into females) among fish. The chemicals don’t only come off when you swim with it, but can also end up at the reef after you've taken a refreshing shower.
Hawaii, Palau, Bonaire, Key West, and various other tourist destinations have banned sunscreens which damage coral reefs. And no worries, there are plenty of options to protect your skin against UV without damaging under water life. But the most environmentally friendly way to protect your skin, is to cover it with clothes.
Marine research
Diving makes it possible that marine biologists can collect relevant data for their much-needed research. I joined a citizen science project and collected data about the underwater life (and about plastic on the beach). By continuously letting divers note down certain keystone species they have seen, the health of the reefs stays monitored over a long period of time. There are also dive centers that let marine researchers join their commercial diving trips for free.
So, if you want to dive again, maybe you could consider contributing to marine research. This can be as easy as reporting your sightings via an online database, for example for whale sharks. And if you can choose from different dive centers, why not choose a dive center that supports research?
Time for change!
There are signs that things are changing. Sixteen countries, representing over 55% of all coral reefs in the world, have signed The Coral Reef Declaration. These countries agree to support the health of coral reefs in a broad sense, by fighting climate change, drawing attention to the role and fate of reefs, supporting research, etc. Unfortunately, the agreement is not binding. But this might change as soon as coral reefs get their well-deserved rights of their own.
Luckily, we don’t have to wait helplessly for something to happen. You can start making a change immediately, by…
Respecting the ‘personal space’ of marine life
Using bio-degradable sunscreen and cleaning products
Asking dive centers for their code of conduct
Picking up plastic (underwater only after signaling your buddy)
Choosing your dive destination carefully
In general: reduce, reuse and recycle!
You can also:
Earth Law Center Advances Ocean Rights
Ocean Rights Manager at ELC Michelle Bender discusses Ocean Rights and the heart of the Earth Law approach.
By Michelle Bender
Earth Law Center is building an international movement from the ground up, one that gives better grounding to the idea that humans have a responsibility for how we impact the world around us. The belief that nature - the species and ecosystems that comprise our world - has inherent rights has proven to be a galvanizing idea, and we work with local communities to help them organize around the rights of nature to protect their environment from the threats that they see.
“Galapagos Islands” by Michelle Bender
The heart of the ELC approach is to seek legal personhood for ecosystems and species, a designation similar to that given to corporations in U.S. law, and one that if done well will imply both rights for the entities so designated and responsibilities on the part of human beings and societies to respect those rights. Michelle Bender, Ocean Rights Manager, provides an update about Earth Law Center’s ocean rights program.
How did the ‘Ocean Rights’ Program start?
If we really want to get accurate, the passion for this program started when I was young. I think I was 5 years old when my family drove to San Diego and visited the beach. Ever since I was hooked. I knew I wanted to learn more about the Ocean, and declared my major in Marine Biology before I even started my undergrad studies. Then my pathway evolved towards the law. I wanted to be able to effect change on a larger scale, and to protect the animals and ecosystem that had stolen my heart.
Earth Law Center had a small ocean component prior to my start, but we really saw the opportunity to expand this program further in 2017. Rights of Nature was starting to grow, and the idea of legal personhood for Nature started to take hold. I specifically remember seeing an article that was titled something like ‘Rivers, mountains and national parks are gaining legal personhood worldwide’ and thought to myself, where is the ocean? The ocean represents a huge gap in the global Rights of Nature movement, and a logical progression of its application.
Earth Law Center is the only organization with expertise and a program for promoting holistic and rights-based ocean law and policy, for promoting the Rights of the Ocean.
What does ‘Ocean Rights’ mean?
Ocean Rights means that the Ocean is a living being, and entity that has inherent rights. These rights are specific to the Ocean, and its processes and functions. Most importantly, doing so addresses the root cause of our destructive relationship with the Ocean.
We have historically valued the Ocean as an open access resource, which provides little incentive for us to invest in stewardship and conservation, and to consider future generations. Acknowledging the Ocean as our source of life rather than as property reinforces our responsibility to preserve and maintain Ocean health. Earth Law offers a way to hold ourselves accountable, and to shift the burden of proof to those wishing to undertake an extractive or exploitative activity.
What has been accomplished since 2017?
We started our program with the ‘Ocean Rights Initiative’ that gained over 70 signatures from 32 countries, and resulted in a presentation in front of the United Nations General Assembly at the first UN Ocean Conference. It became clear that there was a growing interest for this program and its application, and the question remained: how?
This led to the development of the Earth Law Framework for Marine Protected Areas, which I developed with the help of interns, volunteers, and over 40 experts internationally. It serves as a guideline for how to incorporate Earth Law into marine protected areas, but with wider applicability to the entire Ocean.
The Earth Law Framework
Designation as a Legal Entity. This takes the ecosystem out of the realm of property and provides a solution to the common access problem. In our society, the amount of protection an entity receives is a function of the legal rights it holds. Real protection for the ocean and its species then involves the right to be heard and a right to protect itself.
Codify Rights. This includes basic rights to health, be free of pollution, restoration and representation. We put those in law so that they are legally defensible.
Guardianship. Create a management body that includes guardians that represent the ecosystems interests in decisions and disputes; and ensures the ecosystems rights are not violated.
Rights of Community. Codify the human right to defend the ecosystem, so that communities can hold the government and industry accountable for harm done.
New Standards (Economic, Governance, Ecological). What standards will decision-makers have to follow to ensure a proper balancing of human and environmental needs?
We have since launched over 10 initiatives in the US and around the world. Building on our educational work, these initiatives focus on frontlines work for tangible evolution of laws and governance plans for the ocean. We connect with many other organizations with a shared mission and passion, organizations such as Mission Blue, Marine Conservation Institute and NRDC.
For the Salish Sea here in Washington, for example, we work at the local level to help coastal communities pass new laws that recognizes the rights of the ocean and the community’s rights to a healthy ocean. For that initiative specifically, we partner with Legal Rights for the Salish Sea (Gig Harbor community group) to seek rights for the endangered Southern Resident Orcas.
We are also part of the first regional ‘Rights of Nature’ initiative, working with Pacific island nations to draft a new Convention on the Rights of the Pacific Ocean. The kick off meeting has led to a statement on agreed to principles and commitments by the participants, and the start of the research and outreach needed to gain support for the Convention is underway.
Last but not least, Organización para la Conservación de Cetáceos (OCC) are long-standing partners, with whom we have now drafted a proposal to share with Parliament to designate the Whale and Dolphin Sanctuary in Uruguay as a legal entity that has rights.
“Galapagos” by Michelle Bender
Where is ‘Ocean Rights’ happening internationally?
Aside from ELC’s initiatives, we are beginning to see the Earth Law Framework in various forms. For each of five components, there are success stories.
1. Ocean as a Legal Entity
In 2011, there was a case in Belize where the government sued shipowners for harm to the barrier reef, which is a UNESCO World Heritage site. In this case, the government asserted that the reef was not property and they were instead guardians of it.
The recognition that the Barrier Reef was not property allowed a higher award for damages finding that damages were recoverable for both physical and environmental damage and that the damage done reflected intangible values that couldn’t be evaluated in monetary terms.
This recognition allowed the shipping company to be found liable for the damages caused to the reef, with a value of $2700 per square meter of injured reef and an award of over $11 million to the Government for the damage caused and to help restore the reef.
This case not only shows how taking an ecosystem out of the realm of property furthers protection and restoration but also shows how different economic standards are beneficial as well.
2. Codify Rights
In Ecuador, Rights of Nature was put into the Constitution in 2008. The Galapagos Marine Reserve is managed using what is called the Special Regime, or Special Law of the Galapagos. In this law is a guiding principle to achieve equilibrium or harmony among society, the economy and Nature, and to respect the Rights of Nature.
As a result the Galapagos implemented high standards to protect Nature. There are 27,000 people on the islands, and the islands are managed by maintaining 97% of the territory as protected, with 3% for the population (this includes tourism). It is illegal to harm the 97%. Some others standards include no industrial fishing, harming sharks is a criminal offense, economic activities are limited to permanent local residents, and environmental impact studies determined the limit on the amount of boats that travel between the islands.
There have been 3 cases involving sharks in the Galapagos Marine Reserve and a more recent one involving coastal mangroves. All ruled in favor of Nature, noting that Nature has rights, and that the state needs to guarantee those rights.
Ecuador shows how codifying the rights of nature is important to having effective and enforced marine protected areas.
3. Guardianship
In New Zealand we have an example of the guardianship criteria of the framework, human representation of Nature New Zealand created the Hauraki Marine Gulf Park in the year 2000 and its Sea Change Marine Spatial Plan proposes the recognition of the Park’s rights by calling on communities to “think of the environment as a being in its own rights.”
The Plan also creates a guardianship system with the local Iwi communities, giving them the judgement over issuing permits for extraction and human activity. It also calls for guardianship to be “practiced by all” and every person to be given opportunities to participate in guardianship activities, such as to become involved in decision-making, monitoring programs and restoration projects.
4. Rights of Community
In the Philippines, law permits any citizen to file an action before the courts for violations of environmental law (very much different than here in the US and most places in the world).
The Philippines Earth Justice Center sued the government in 2015 to protect the Tañon Strait from oil exploration and development. In this case, the petitioners were able to represent the marine mammals of the Tanon Strait as guardians because the primary steward, the government, had failed in its duty to protect the environment by granting an oil exploration permit.
The court noted “the right to a balanced and healthful ecology does not have to be stated in law- it just exists,” ruled in favor of nature, and reversed the contract that was granted to the oil company, permanently banning exploration in the Strait.
This case shows how giving the community the right to represent the ecosystem, allowing the ocean and its species to have standing in the courts, further protection by holding industry and government accountable.
5. New Standards
Lastly, we have the Marae Moana Act of the Cook Islands, where the entire Exclusive Economic Zone, or marine space, is declared as a marine sanctuary. This Sanctuary is a great example of new standards for decision-making. Particularly, the Marae Moana uses governance criteria where the highest objective is conservation.
What they did in the Cook Islands that is so much different than most marine protected areas, is they protected the whole area outright, with no large-scale fishing and seabed mineral activities permitted within 50 nautical miles of the islands.
So you start by protecting everything, then you decide if and where activities are permitted through a process of impact studies, advisory opinions and council approval. The primary purpose of the management act is conservation, and it explicitly says all secondary uses must be consistent with the primary purpose. So now if activities like fishing or seabed mining are on the table, those wishing to undertake those activities must make the case that it will not have an adverse impact on the Sanctuary.
This flips the burden of proof and truly creates a protected area. Though the Marae Moana does not specifically give rights or declare the area as a legal entity, it provides a great example of the standards that we can aspire to in order to shift towards more holistic management that will allow us to live in harmony with the Ocean.
What is one thing you want to leave the readers with today?
I would like to quote one of my biggest inspirations for this work, Dr. Sylvia Earle, who says “No Blue, No Green.”
I encourage every one of us to connect, or reconnect, with the world around us. To really think about where our products come from, and where they go, where our water and air comes from.
Without the Ocean, we would not be here. Little organisms in the Ocean actually supply the oxygen for every other breath we breathe (50% of the world’s oxygen). When we reconnect, we have a great appreciation for how dependent we are on the Ocean, and a healthy Ocean at that. When we see ourselves as kin rather than owners of nature for human ends, then the relationship we have with the ocean transforms. Maybe then our behaviors will change, and we will become responsible stewards.
So doing our part, whether it be reducing plastic use, creating marine protected areas, or reducing fishing pressure, not only conserves the Ocean and its right to exist, but our very existence as well.
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Earth Law working to protect oceans in Brazil
The Earth Law framework for marine protected areas comes to Fernando de Noronha Archipelago in Brazil.
Two Brothers Rock - Fernando de Noronha Archipelago, Pernambuco, Brazil. (Creative Commons Genérica de Atribución/Compartir-Igual 3.0.)
By Antonella Giordano
Earth Law Center and MAPAS have partnered to implement the Earth Law framework for marine protected areas as a way to strengthen protection of Fernando de Noronha Archipelago in Brazil.
Value of and Threats to Brazil’s coastline
Brazil’s coastline is huge, more than 4600 miles long, four times longer than that of California, so a healthy ocean is extremely important in this part of the world. Brazil is ranked 19th in terms of global fish production, meaning the ocean significantly contributes to the country’s tourism, jobs and food. In fact, fisheries for species including bight, sardines, shrimp and tuna, provide jobs for almost 3.5 million Brazilians.
The Ocean Health Index (a collaborative effort on monitoring and evaluating ocean health) rates the country 126 out of the 221 Exclusive Economic Zones, with a national average score of 66 out of 100. With the equivalent of a D-grade, there is much work yet to be done to improve ocean health in Brazil.
Ocean health scores consider ecological, social, economic and political factors by region followed by computer model analysis. A score of 100/100 doesn’t necessarily mean a completely clean ocean, but that produces oxycgen and sustains life. The global average score is 70, with others in the region on par with Brazil: Uruguay (63); French Guiana (72); Argentina (69); and Chile (74).
Diving in Fernando de Noronha, Pernambuco, Brazil. (Creative Commons Atribución 2.0 Genérica)
Fernando de Noronha Archipelago
The Fernando de Noronha Archipelago is located about 360 km offshore from the Brazilian coast in the Atlantic Ocean. The islands and their surrounding waters (including the nearby Atol das Rocas Biological Reserve) are home to “the largest concentration of tropical seabirds in the Western Atlantic” as well as a breeding place for tuna, shark, sea turtles and the spinner dolphin. The United Nations granted the titles of Biosphere Reserve of the Atlantic Rainforest and World Natural Heritage Site.
Over 20 islands of volcanic origin form the Fernando de Noronha Archipelago. Two protected areas were established in and around the islands: the National Marine Reserve in 1988 (for fauna, flora and natural resources protection) and the Environmental Protected Area in 1986 (reserved for human occupation). Each of these areas has preservation rules established by the federal and the state governments with the aim of preserving natural resources. Protections currently on the archipelago include Projeto TAMAR Fernando de Noronha for the protection and preservation of green sea turtles; the Area of Environmental Protection and the National Marine Park have their own rules protecting the area, such as:
Controlled visiting hours and days;
Use of licensed vessels and vehicles only;
No camping, no overnight stays, no lighting fires on the beaches, no graffiti on rocks, trees or signs;
No killing, capturing, chasing or feeding animals,
No removal or relocation of shells, corals, rocks, or parts of animals and vegetables,
No leaving garbage and debris.
The archipelago is restrictive by design. An average of just 700 tourists can enter per day. A daily preservation tax starts at about USD22 a person a day and rises after 14 days to discourage longer stays. This is in addition to the USD62 fee for a 10 day pass. This means advance bookings of 5-6 months in advance.
Unlike other communities in Brazil, Fernando de Noronha is a State District (the only one in Brazil) rather than a municipality. This means Fernando de Noronha’s entire territory belongs to the federal government, a right established in the Brazilian Constitution. This condition also means that no Fernando de Noronha resident can own the piece of land on which they live and on which they have built their houses. In addition, any construction, renovation or change to any building on the island needs to be approved by the federal government.
So then, the archipelago is administered directly by the State of Pernambuco, where Rights of Nature was added in the local law of Paudalho in 2018. The Governor of the State of Pernambuco appoints the General Administrator of the archipelago. The General Administrator oversees management of the archipelago while representing the State of Pernambuco in Fernando de Noronha.
Unfortunately, all electricity generation draws from fossil fuels, causing concern to the island’s administration along with a desire to change the status quo. Tourism and urban growth displace native terrestrial species along with illegal activities towards the ocean, such as the illegal presence of tourist boats and overfishing. Turtles are particularly affected. Invasive species also stress the islands’ natural habitat as do oil spills in the marine environment.
Rights of Nature in Brazil
The Rights of Nature protection in Fernando de Noronha builds on a growing global movement, especially in Latin America. Ecuador for instance, has shown how rights of nature can provide high standards for marine mammal protection, notably sharks and sea turtles.
Brazil’s laws have begun to reflect Rights of Nature perspectives. In Rio de Janeiro in 2016, the International Union for Conservation of Nature (IUCN) World Congress on Environmental Law adopted Rights of Nature in its World Declaration on the Environment Rule of Law.
Municipal laws recognizing Rights of Nature have been approved in Paudalho and Bonito, both in the State of Pernambuco. Bonito was the first city to do so in Brazil in 2017 with an amendment to Bonito’s municipal law, and it says:
“Art. 236. The Municipality recognizes the right of nature to exist, thrive and evolve, and should act in order to assure all members of the natural community, human and non-human, of the Municipality of Bonito, the right to an ecologically healthy and balanced environment and to the maintenance of ecosystemic processes necessary to good quality of life, being the Public Power, as well as the collectivity, in charge of defending and preserving it for the present and future generations of the members of the earth community.
In order to ensure this right, the Municipality shall promote the amplification of its public policies in environmental, health, educational and economic areas so as to provide conditions for the establishment of a life in harmony with Nature, and it shall articulate with other state, regional and federal competent bodies, as well as with other municipalities, if it is the case, in order to solve common problems related to the protection of Nature.”
Additional Rights of Nature proposals are currently being talked of in the city of São Paulo, and others in the State of Tocantins, Mato Grosso and Santa Catarina are all pending. Also, in 2018, the Chamber of the Municipality of Fortaleza, drafted a bill granting the recognition of the Rights of Nature, which is being proposed at the moment.
Behind many of these efforts, MAPAS ONG can be found. MAPAS is a non-profit non-governmental organization, which since 2004 has been working together with the community and public administration towards conquering quality of life for the individual, for the community and for the Planet. Its Environment and Integral Health's lines of action are coordinated by specialists who act in an interdisciplinary and systemic way to guarantee the conquest of good living in all its dimensions.
How Earth Law can protect the Islands
Earth Law Center works through legal initiatives, education and advocacy to bring about the shift towards rights of nature, and towards adhering to our responsibilities to protect and defend that which nourishes us.
The goal is to implement higher standards for governance in the Archipelago, similar to those of the Galapagos Marine Reserve. Such standards can include:
limiting industrial fishing, namely for tuna
prohibiting harm to sharks and sea turtles
limiting economic activities to permanent local residents; and
determining tourism levels using environmental impact studies, for example determining the amount of boats that travel between islands.
Legally adopting the rights of the ocean would help progress Brazil towards its AICHI Strategic goals, including goals to:
achieve sustainable fisheries using ecosystem based approaches
minimize human pressures on marine ecosystems
maintain marine ecosystems integrity and functioning; and
conserve 10% of marine areas by 2020
This would represent a big step towards rights of nature in Brazil, and an example for the region as well.
How you can help
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More about Earth Law Center
ELC works to transform the law to recognize and protect nature’s inherent rights to exist, thrive and evolve. ELC partners cooperate internationally to advance the rights of the ocean, having created the Earth Law Framework for Marine Protected Areas to guide implementation.
More about MAPAS
MAPAS has worked towards the recognition of the Rights of Nature in close collaboration with the international movement Harmony with Nature, focused on the United Nations Organization, where the Nature Charter has already been published, promoted by MAPAS and signed by several authorities in Brazil.