Philippines Establishes Guardians for Marine Mammals

View of the Philippines Sea from Cape Maubito, Taiwan. Photo by CEphoto, Uwe Aranas

By Michelle Bender and Darlene Lee

Rights of Nature has taken root in the Philippines. Earth Law Center and Philippines Earth Justice Center are exploring how to advance the movement further, specifically how to incorporate the Earth Law Framework for Marine Protected Areas (MPAs) into the country’s National System of MPAs. 

The Philippines Sea: Unparalleled biodiversity

Located in the Pacific Ocean, 7,100 islands and 36,000 kilometers of coastline make up the country of the Philippines.[i] 

Over 2,000 fish species, 22 species of whales and dolphins, 900 species of seaweed and more than 400 species of coral call the Philippine Sea home.[ii] The ocean matters to people too, with over 1 million Filipinos depending on it for their livelihoods (equal to 4 percent of the country’s gross national product).[iii]

Not many people know that the Philippines hosts unique and unparalleled marine biodiversity. Part of the Coral Triangle, the Philippine Sea is often referred to as the “Amazon of the Seas” where 70% of all known coral species in the world are found.[iv] Hence, protecting the biodiversity of the Philippine sea is important not just to the neighboring countries but to the larger marine ecosystem.

Bottom of the Philippine Sea By Carljohnthegreat [CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0)], from Wikimedia Commons

Threats to the Philippine Sea

Pollution, fishing practices like dynamite fishing, and climate change threaten the health of the Philippine sea. Oil spills have continually impacted the Philippine sea and local communities. For example, in 2008 a coal spill off the coast of Bolinao caused an estimated 55 million dollars in damage.

As a result, three quarter of the mangroves have disappeared and 54% of the coral reefs are “badly damaged.”[v] 

Endangered species in the Philippine sea include: hawksbill sea turtles, giant clams, net coral, false flower coral, sei whales, blue whales, fin whales, loggerhead turtles, humphead wrasse, green turtles, spiny turtles, and frog-faced soft shell turtles among many others.[vi]

Focus on Philippine Rise

Philippine Rise (formerly known as Benham Rise) is a 13 million hectare undersea volcanic ridge region to the east of the Philippines.[vii] An ecologically important and biodiverse marine area, the Rise provides the only spawning ground for Pacific Bluefin Tuna, and the only place in the Philippines with 100% coral cover.[viii] It is considered “one of the Philippines’ last, best chances to protect old-growth coral reefs.”[ix]

The bluefin tuna, endangered for several years, has suffered a catastrophic decline in stocks in the Northern Pacific Ocean, of more than 96%. At current rates, the species will soon be functionally extinct in the Pacific. More than nine out of 10 of the species recently caught were too young to have reproduced, meaning they may have been the last generation of the bluefin tuna.[x]

The Philippines government has taken great strides to protect this area. On May 15, 2018, President Rodrigo Duterte signed a proclamation declaring 50,000 hectares of the Rise as a marine reserve. Approximately one third of this area was also designated as a no-take zone, closed to all human activities besides scientific research. Additionally, 300,000 hectares are managed with a ban against “active fishing gears.”[xi]

Considered a “potentially rich source of natural gas and other resources such as heavy metals,”[xii] the Philippines Rise faces threats from foreign oil extractors.  Local groups have organized to protect this area.

Benham Rise Map By National Mapping and Resource Information Authority (NAMRIA) [Public domain], via Wikimedia Commons

Lawsuit for Tanon Strait

Gloria Ramos, (now executive director of Oceana Philippines) and Rose-Liza Eisma-Osorio, created the Philippine Earth Justice Center.

The Philippine Earth Justice Center (PEJC) is a non-stock and non-profit corporation which was established to provide legal assistance to victims of environmental injustice, conduct policy research on the environment, advocate policy reforms, assist in building local capacities for environmental protection and promote sustainability and protection of human rights.

PEJC usually joins private individuals, helping them to assert their rights as a steward in various cases. It is also a duly recognized organization in the pursuit of the right to a balanced and healthful ecology in accord with the rhythm and harmony of nature guaranteed under the 1987 Philippine Constitution. PEJC is assisting victims of coal ash disposal in a community near a coal-fired power plant in Naga, Cebu. Other cases have involved indigenous peoples fighting against small-scale mining activities within their ancestral domain in Southern Philippines, coastal communities preventing reclamation activities, and fisherfolks with their communities asserting preferential rights over their municipal waters.

Philippine law permits any citizen to file an action before the courts for violations of environmental law. The Philippines are leaders of crafting environmental laws in the world. “Imagine, in the U.S., you can only go to court if you were already harmed by exploitative activities. In the Philippines, you can sue before you get harmed. It is preventive,” Gloria Ramos, Oceana said. 

The Philippines Earth Justice Center sued the government to protect the Tañon Strait from oil exploration and development. The Strait is the largest marine protected area in the Philippine sea.

Titled “Resident Marine Mammals of the Protected Seascape Tañon Strait et. al. V. Secretary Angelo Reyes et al." the marine mammals gained standing in the case. The Philippines Earth Justice Center was dubbed by the media as “guardians of marine mammals” in the case (and the name has followed them since). They contended “that there should be no questions of their right to represent the resident marine mammals since the primary steward, the government, had failed in its duty to protect the environment pursuant to the public trust doctrine.”

The court noted “the right to a balanced and healthful ecology, a right that does not even need to be stated in our Constitution as it is assumed to exist from the inception of humankind, carries with it the correlative duty to refrain from impairing the environment.” Also, due to the Constitution’s mandate to “protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature” the court ruled in favor of nature, and reversed the contract that was granted to the company Japex allowing oil exploration activities, determining “no energy resource exploitation and utilization may be done in the protected seascape.”

This important precedent can help protect Benham Rise, ensuring the government adheres to legal frameworks such as the National Integrated Protected Areas System Act of 1992, and that community members adhere to their duties as stewards for the environment. 

What’s next for the Philippines Sea?

The country already allows the rights for citizens to sue on behalf of the environment. The next step is to recognize the rights afforded to nature in law. 

Communities are pushing for introduction of this legal framework in the country. On World Environment Day (June 5th), a wide caravan of groups called upon “increased protection for the environment and upholding of the rights of nature.”[xiii] Named “Salakyag” the march pushed for “a return to the culture of interconnection and full embrace of nature.”[xiv]

Gloria notes that “What is good for the environment is good for business, so we really need to change the mindset that protecting the environment and business interests are mutually exclusive.” This is what the rights of nature framework provides. It requires us to balance the rights of nature with humans, and ensures that economic benefits are not privileged over the benefits of a healthy environment.

Next steps to secure rights for the Philippines Sea

Rose-Liza Eisma-Osorio is working to “increase advocacy and work with groups calling for the rights of nature in the Philippine legal system.” This includes including rights of nature in future court cases to protect the environment and incorporating the Earth Law Framework into the national system of MPAs. 

The current framework is the National Integrated Protected Areas Act (NIPAS) of 1992, recently amended in 2018. This Act creates the system for protected areas in the Philippines and provides for their management. Under the Act, all recognized protected areas must have a management plan within one year, and a management board created for each. These boards must be comprised of government, local community, NGO, indigenous, private sector and academic institution representatives. Per the precedent set in the Tanon Strait case, there exists an opportunity for a representative to assume the role of the Guardian for the protected area. The introduction of guardians who represent the protected area’s interest is one way to incorporate the Earth Law Framework into NIPAS.

Additionally, environmental groups in the Philippines are currently drafting a rights of nature law to present at the National level. This initiative is also being supported by the Catholic Church.

 How you can help

• Stay informed by signing up for ELC’s monthly newsletter

• Volunteer for this initiative

• Donate to the cause

• Read more about the Philippine Earth Justice Center, Inc.
  

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[i] https://www.greenpeace.org/seasia/ph/PageFiles/533258/OD-2013-PH-SEAS.pdf

[ii] Id.

[iii] Id.

[iv] http://www.adb.org/sites/default/files

[v] https://oceana.org/blog/saving-philippines-last-untouched-coral-reefs

[vi] https://owlcation.com/stem/The-Top-Ten-Critically-Endangered-Animals-in-the-Philippines

[vii] http://benhamrise.com/

[viii] https://amp.rappler.com/nation/202776-dolphins-shaped-environmental-laws-philippines-benham-rise?__twitter_impression=true

[ix] https://oceana.org/blog/saving-philippines-last-untouched-coral-reefs

[x] https://www.theguardian.com/environment/2013/jan/09/overfishing-pacific-bluefin-tuna

[xi] https://amp.rappler.com/nation/202776-dolphins-shaped-environmental-laws-philippines-benham-rise?__twitter_impression=true

[xii] https://www.rappler.com/newsbreak/iq/164514-fast-facts-benham-rise

[xiii] http://www.kagay-an.com/salakyagstop-killing-environmentuphold-rights-nature/

[xiv] http://www.kagay-an.com/salakyagstop-killing-environmentuphold-rights-nature/

Seeds of Hope for Earth Law in the Philippines

By WolfmanSF [CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0)], from Wikimedia Commons

By Margarita N. Lavides and Darlene May Lee 

While the Philippines needs to strengthen its law enforcement capacity, it will also benefit from building on its rich well-crafted environmental policies with a new model of environmental governance focused on well-being and guided by principles of sustainability, ecosystem health, precaution, interconnectedness and inclusiveness. Read on to find out more about how Earth Law Center and Philippines Earth Justice Center partner to advance the Rights of Nature movement, specifically how to incorporate the Earth Law Framework for Marine Protected Areas (MPAs) into the country’s National System of MPAs.

The Philippines is one of 18 mega-biodiverse countries of the world, containing two-thirds of the earth’s biodiversity and between 70% and 80% of the world’s plant and animal species. The Philippines ranks fifth in the number of plant species and maintains 5% of the world’s flora. Species endemism is very high, covering at least 25 genera of plants and 49% of terrestrial wildlife, while the country ranks fourth in bird endemism and considered to host the most number of marine species in the world. The Philippines is also one of the world’s biodiversity hotspots with at least 700 threatened species, thus making it one of the top global conservation areas.[1][2]

Philippines ranks 7 globally for coastal governance laws

Infographic of Biodiversity in the Philippines (Source: Philippine Biodiversity Strategy and Action Plan, PBSAP 2015-2028)

The Coastal Governance Index [3] ranks the Philippines 7th out of twenty maritime countries across the globe for its good track record of well-crafted environmental laws. While some current proponents of constitutional change include proposed environmental rights in its bill of rights, the current Philippine Constitution promotes a right to a healthy environment.

The 1987 Philippine Constitution [4] provides that the State shall protect the nation’s marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The same Constitution provides that the State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. It also provides for the protection of the preferential rights of subsistence fishers and local communities in the use of inland and offshore fishing resources and provides for support in the conduct of their livelihoods.

 With regard to integrated coastal management, 75 related major laws/policies have been enacted and national programs implemented (from 1800s to 2018). These include the landmark legislations on local government code; a fisheries code; an act on national protected areas system; a national biodiversity strategy and action plan and a proclamation on the establishment of Benham Rise Marine Reserve. These laws and policies, among other outcomes, allowed for local government and communities to better manage their natural resources, especially in coastal areas; increased the areas for critical habitat and protected areas; provided the roadmap for biodiversity protection and management and established the largest and biodiversity-rich marine protected area.[5] Beyond the work of Filipino legislators, these environmental laws materialized due to many outstanding environmental law practitioners and an active civil society organizations.

Activists protecting the natural environment in the Philippines

By Shubert Ciencia (Flickr: Manila Bay) [CC BY 2.0 (https://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

In 1993, Atty. Antonio Oposa Jr. represented 43 Filipino children who initiated an action against the Philippine Government for the misappropriation of the country’s forest resources. Despite being dismissed at trial court, Oposa took it to the Supreme Court who upheld the legal standing and the right of the children to initiate the action on behalf of generations yet unborn - establishing the “Oposa Doctrine” as it is known now in Philippines and global jurisprudence. Oposa also waged a ten-year legal battle against eleven government agencies to clean up Manila Bay, ultimately winning a decision from the Supreme Court who ordered the offending agencies to clean up Manila Bay.[6]

Attys. Gloria Ramos and Rose Liza Eisma-Osorio defended the rights of marine mammals to a healthful ecology in Tanon Strait preventing a mining company from oil exploration in the Strait in a precedent setting Supreme Court decision in 2015.[7] They are currently exploring a specific Earth Law initiative with Earth Law Center which seeks to incorporate the principles of the Framework for Ocean Rights.

Many lower court cases can bring additional optimism in this era of pessimism. Residents of Bantayan Island, Cebu sued and won to protect their coastal areas from tourism business that violates environmental laws. Atty. Gloria Ramos gained (and later extended) a Temporary Environmental Protection Order (TEPO) to stop a local coal power plant from transporting toxic coal combustion residuals outside premises. Concerned Citizens of Iligan City and the Center for Alternative Legal Forum and Injustice Inc jointly filed for and won a TEPO to prevent illegal logging. While environmental lawyers and activists continue to fight against environmental violations, other members of civil society organizations also seek to implement innovative solutions towards a more just and sustainable environment and society.[8]

Pioneering environmental NGO, Haribon Foundation, founded in 1972, has sparked the environmental movement through its research and advocacy work for Critically-Endangered Philippine Eagle which through the years expanded the work into national protected areas system, threatened species and community-based and local government led conservation and resource management. In 1999, it organized a national network of fisher-MPA managers called Pamana Ka Sa Pilipinas from 122-MPA-member sites across the country which became an important national player in advancing the cause of small scale fisheries and marine conservation.[9]

International NGOs like Oceana-Philippines while working for fisheries reform, was one of the leading catalysts in the presidential proclamation of Philippine Rise (Benham Rise) into a largest marine reserve in the country.[10] A growing number of universities now engage with government and NGOs towards building a more sustainable environment and development. University of the Philippines and other leading universities are active not only in its knowledge generation but leveraging impact by influencing environmental policy and advocacy. The church is also active in its campaign for a more just and sustainable communities. It is quite common for Catholic priests and lay persons to lead  environmental campaigns and advocacy against coal mining and other environmental violations across the country.

Current protections remain insufficient for ecosystem and species health

Yet despite all this activity, the country’s natural ecosystems and species continue to suffer. In a country level study, 59 fish names were identified to be at risk of local extinction, with large and slow-growing reef fishes such as Giant Grouper, Bumphead Parrotfish, Humphead Wrasse, declining as much as 88% in catch since the 1950s due to overfishing and vicious cycle of poverty.[11] This is aggravated by impacts of climate change and habitat degradation.

In a national survey of coral reefs, it was reported that there is a marked decline in hard coral cover across the country since the 1970s, with loss of reefs in excellent condition and more than 90% of the reefs in poor condition.[12]  No wonder a typical old Filipino fisher, during our interviews with them across the country would say: The present fishers’ catch for one month is nothing compared to our fish catch for just one week.

Land ecosystems suffer equally. Dr. Mundita Lim, former Director of Philippine Biodiversity Management Bureau and currently Executive Director of ASEAN Center for Biodiversity laments, “In the Philippines, we have lost almost 93 percent of our original forest cover since the 1900’s. In 2008, 58 out of the 206 then known mammal species native to the Philippines were included in the International Union for the Conservation of Nature (IUCN) Red Data List of Threatened Species.[13] This is a number that is significantly large, considering that more than half of our native mammalian species are found only in the country and nowhere else in the world.”[14]

Coupled with the alarming rate of biodiversity loss is the continued discoveries of new species which all the more fortify the position for a more strengthened environmental governance and enforcement. From 2005 to 2012, there were 151 new species of birds, mammals, reptiles, amphibians and plants discovered. In Luzon alone, there were 300 new species discovered in 2011 by California Academy of Sciences.[14]

While the national government of the Philippines has been addressing climate change and environmental challenges, inconsistencies abound such as the continued government’s permission to mine coal despite local governments’ and communities’ opposition in many cases. Continued logging in natural forests and rampant overexploitation of wildlife continue to threaten native ecosystems and species while enforcement of environmental protection laws remains weak. So despite the successful establishment of a host of environmental protection laws, the ecosystems and species of the Philippines remains imperiled. 

Rights of Nature (RoN) and Integrated Coastal Management(ICM): A Symbiosis

Earth Law or earth jurisprudence, including Rights of Nature, could help strengthen and evolve the current legal protections of nature in the Philippines. Earth Law is an ethical framework that recognizes nature’s right to exist, thrive and evolve - enabling nature to defend these rights in court, just like corporations can. Earth Law has theoretical origins in 1970s but since 2006 when the first Rights of Nature legislation was implemented in the US has been gaining strength through constitutional provisions or national law (Ecuador, Bolivia) and local ordinances (New Zealand, India, Mexico and in three dozen US cities and municipalities).

Since 2003, a series of government laws and policies establishing ICM as a national strategy to ensure sustainable development of the country’s coastal and marine environment and resources and including guidelines for its implementation, has been issued. In 2016, a Senate Bill to strengthen the adoption of ICM as a national coastal resource management strategy has been filed.[5]

ICM-related policy issuances emphasized that ICM covers all coastal and marine areas, addressing the inter-linkages among associated watersheds, estuaries and wetlands and coastal seas by all relevant national and local agencies5. This means that the management approach should encompass forest, river and marine areas due to their interconnectedness. This can easily be seen in impacts of land- and sea-based human activities such as agriculture, deforestation and overfishing.[15, 16, 17] Because of ICM’s integrative characteristic consistent with the principles of RoN, ICM is used here to show common principles applied to both RoN and ICM.

 According to government-issuances on ICM, among the identified elements of ICM programmes across socio-ecological systems, are the establishment and management of marine protected areas and its networks. Thus MPA and MPA network programmes sit well within ICM programmes and both have principles consistent with RoN.

While many will argue that legislating for RoN may not yet be timely for the Philippines due to its current political climate, poverty-related social and environmental problems and the country’s low score in enforcing the law [2]; but it cannot be denied that the country is also laden with seeds of hope that can germinate into an Earth Law regime and bearing fruits from its future Rights of Nature legislations and implementation.

While we embark on this process with realistic optimism, environmental lawyers and activists and other civil society organizations are enjoined to continue to optimize the use of existing environmental rights constitutional provisions and other related environmental laws and policies towards a just and sustainable Philippines.

How Can You Help Crystallize an Earth Law Regime in the Philippines? 

1. Stay informed by signing up for ELC’s monthly newsletter

2. Donate to the cause

3. Volunteer for Earth Law initiative of ELC and Philippine Earth Justice Center, Inc

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1. https://www.cbd.int/countries/profile/default.shtml?country=ph

2. Carpenter and Springer (2005) The center of the center of marine shorefish biodiversity: the Philippine Islands. EnviBio Fish, 72: 467-480.

3. EIUL Economist Intelligence Unit Ltd. (2015) Coastal Governance Index

4. Philippine Constitution (1987)

5. Forest Foundation (2018) ICM and ICM Policies in the Philippines Prepared by Dr. MNLavides

6. https://www.films.com/ecTitleDetail.aspx?TitleID=76342

7. Bender & Lee (2018) Philippines Establishes Guardians of Marine Mammals Earth Law Center www.earthlaw.com

8. Lagura-Yap et al. (Undated) Environmental Justice in Philippine Courts

9. http://www.haribon.org.ph/index.php/haribon-foundation/history

10. https://ph.oceana.org/

11. Lavides MN et al.  (2016) Patterns of coral reef finfish species disappearances inferred from fishers’ knowledge in global epicentre of marine shorefish diversity. PLoS One, 11(5): e0155752. Doi: 10.1371/journal.pone.0155752

12. Licuanan AM et al. (2017) Initial findings of the national assessments of Philippine coral reefs. Philippine Journal of Science, 146(2): 177-185.

13. IUCN (2008) Red Data List of Threatened Species

14. Philippine Biodiversity Strategy and Action Plan (PBSAP) 2015-2028

15. Makino A et al. (2013) Integrated planning for land-sea ecosystem connectivity to protect coral reefs. Biological Conservation, 165: 35-42

16. Reed et al. (2017) Have integrated landscape approaches reconciled societal &environmental issues in the tropics? Land Use Policy 63: 481-492.

17. Oleson KLL et al. (2017) Upstream solutions to coral reef conservation: The pay-off of smart and cooperative decision making. Journal of Environmental Management, 191: 8-18.

Rights for the Southern Resident Killer Whales

Source: NOAA (http://www.afsc.noaa.gov/Quarterly/amj2005/divrptsNMML3.html)

By Michelle Bender and Darlene Lee

Earth Law Center is partnering with Legal Rights for the Salish Sea (Gig Harbor community group), the Nonhuman Rights Project and PETA to seek rights recognition for the endangered Southern Resident Killer Whale population and the Salish Sea.

A Brief Primer on Orcas

Most of us easily recognize the distinctive black and white coloring of Orca Whales. But did you know that they are the largest member of the 35 species in the oceanic dolphin family, which first appeared about 11 million years ago?[i] Considering Homo Sapiens have been on Earth just 200,000 years[ii], perhaps our perspective on these highly intelligent and social fellow Earthlings needs to evolve.
"Whales represent the most spectacularly successful invasion of oceans by a mammalian lineage," said Michael Alfaro, UCLA assistant professor of ecology and evolutionary biology. "They are often at the top of the food chain and are major players in whatever ecosystem they are in. They are the biggest animals that have ever lived. Cetaceans (which include whales, as well as dolphins and porpoises) are the mammals that can go to the deepest depths in the oceans.[iii]

Unlike other whales who have shrunk in size over time, Orcas have become larger over the last 10 million years. Also unlike other whales, they eat mammals, including other whales. "If we look at rates of body-size evolution throughout the whale family tree, the rate of body-size evolution in the killer whale is the fastest," Graham Slater, a National Science Foundation–funded UCLA postdoctoral scholar in Alfaro's laboratory said.[iv]

Contrary to their reputation in popular culture and the much-publicized attacks by captive Orcas, no recorded case of a free-ranging orca ever harming a human exists. Even when orca mothers are violently pushed away with sharp poles so their young can be wrestled into nets and loaded onto trucks, they have never attacked a human being.[v]

Types of Orca Clans

The IUCN reported in 2008, "The taxonomy of this genus is clearly in need of review, and it is likely that O. orca will be split into a number of different species or at least subspecies over the next few years." The three types include[vi]:

• Resident: Feeding on fish and squid, these Orcas live in complex and cohesive family groups called pods. They visit the same areas consistently. British Columbia and Washington resident populations are amongst the most intensively studied marine mammals anywhere in the world. Transients and residents live in the same areas, but avoid each other.

Source: NOAA

• Transient: The diets of these whales consist almost exclusively of marine mammals. Transients generally travel in small groups, usually of two to six animals, and have less persistent family bonds than residents. Transients vocalize in less variable and less complex dialects. Transients roam widely along the coast. Transients are also referred to as Bigg's killer whale in honor of cetologist Michael Bigg.

• Offshore: These orcas travel far from shore and feed primarily on schooling fish and may also eat mammals and sharks. Offshores typically congregate in groups of 20–75, with occasional sightings of larger groups of up to 200. Little is known about their habits, but they are genetically distinct from residents and transients. Offshores appear to be smaller than the others.[vii]

Orcas have a brain part that humans don’t

https://blog.seattlepi.com/candacewhiting/2009/07/13/orca-brains-are-large-and-complex/ Creative Commons

Not only do they have their well-documented senses of humor and empathy and mischievousness, Orcas possess a paralimbic cleft which "may enable some brain function we can't even envision because we lack it," David Neiwert writes in Of Orcas and Men, his breathtaking survey of orca science, folklore, and mystery. "Scientists who examine their brains are often astonished at just how heavily folded these brains are."

The more wrinkles and folds a brain has, the more data it can handle and the faster it can process information. This dense folding is called gyrification, and orcas have "the most gyrified brain on the planet." Their gyrencephaly index is 5.7 compared to human beings' 2.2.

Scientists have also found highly developed parts of the orca brain they believe are associated with emotional learning, long-term memory, self- awareness, and focus.[viii]

More about the Southern Resident Orcas

As of June 2018, only 75 Southern Resident Orcas remain: J pod has 23 members; K pod has 18; and L pod has 34.[ix]

Dr. Michael Bigg, who pioneered field research on orcas in the early 1970's first coined the name. The three Southern resident pods, known as J, K and L pods, usually travel, forage and socialize throughout the inland waters of the Salish Sea (Puget Sound, the San Juan Islands, and Georgia Strait) from late spring through late summer seeking chinook salmon, which provide about 80% of their diet. [x] 

An extended family forms the Southern Resident community. Both male and female offspring remain near their mothers throughout their lives. The average size of a matriline is 5.5 animals. Because females can reach age 90, as many as four generations travel together. [xi]  No other mammal known to science maintains lifetime contact between mothers and offspring of both genders. Unlike all other mammals except humans, orca females may survive up to five decades beyond their reproductive years.[xii]

These matrilineal groups are highly stable. Individuals separate for only a few hours at a time, to mate or forage. Each individual has a unique fin shape, markings and color patterns. When Southern resident pods join together after a separation of a few days or a few months, they often engage in "greeting" behavior. With one exception, a killer whale named Luna, no permanent separation of an individual from a resident matriline has been recorded. [xiii]

Securing Orca Rights

When an individual is removed from his or her home by force, imprisoned, made to work, and forever denied their freedom, it’s called “slavery.” In October 2011, PETA filed a lawsuit against SeaWorld on behalf of five wild-captured orcas seeking a declaration that these five orcas are slaves and subjected to involuntary servitude in violation of the 13th Amendment to the U.S. Constitution. Joined by three orca experts and two former SeaWorld trainers, PETA’s lawsuit asserts that the conditions under which these orcas live constitute the very definition of slavery.[xiv]

PETA’s briefs cited more than 200 years of U.S. Supreme Court precedent, including such landmark cases as Dred Scott, Brown v. Board of Education, and Loving v. Virginia, to establish that the orcas’ species does not deny them the right to be free under the 13th Amendment and that long-established prejudice does not determine constitutional rights. Harvard law professor and constitutional scholar Laurence H. Tribe said: “People may well look back on this lawsuit and see in it a perceptive glimpse into a future of greater compassion for species other than our own.”[xv] (read the full review article here: http://www.mediapeta.com/peta/PDF/FW-13th-Amendment-Law-Review.pdf).

Blackfish the film captures public attention

https://www.youtube.com/watch?v=PmRv4kIul38

In January 2013, the documentary Blackfish premiered at the Sundance Film Festival, telling the story about Tilikum, a performing killer whale that killed several people while in captivity.[xvi] A little more than three years later (a period marked by sustained activism, multi-platform distribution, and media coverage) SeaWorld officially announced on March 17, 2016 that it will officially end its orca breeding program and end orca shows at all of its theme parks.

By 2015, the stock price of SeaWorld had declined by 84 percent.[xvii] A California state lawmaker proposed legislation in April 2014 that called to ban California aquatic parks from featuring orcas in performances; although the proposed law was unsuccessful, it garnered national media coverage.[xviii]

In January 2017, Seaworld San Diego held its last Orca show, prompted by years of outcry and falling attendance.[xix] Parks in Orlando and San Antonio will end their shows by 2019.

Southern Resident Orca Rights Initiative

Securing rights for the endangered Southern Resident Killer Whale population can help stave off extinction for these highly intelligent and social animals who are critical to the health of the Salish Sea marine ecosystem. Michelle Bender, Ocean Rights Manager, notes, 

“To truly protect Southern Resident killer whales, now and in the long term, we urgently need to recognize and codify their rights. Scientific studies and human experience of these animals have made clear that they are self-aware and autonomous, with complex emotional and social lives—and we humans are the cause of their endangerment. As autonomous beings, Southern Resident killer whales cannot survive, much less thrive, without legislation that protects their habitat as a matter of right and ensures that human activities do not infringe on their bodily liberty and integrity and prevent them from living life as they were meant to: freely in the open ocean, with an ample supply of their natural food source and without pollutants in their bodies. A rights ordinance is, without a doubt, the best way to do this,” notes Courtney Fern, the Nonhuman Rights Project’s Director of Government Relations.

Lawyer Elizabeth M. Dunne, Esq. who focuses on advancing and defending the rights of local communities and ecosystems in partnership with the Community Environmental Legal Defense Fund is part of the larger consortium ELC is building to secure rights for the Salish Sea. She notes:

"Our current anthropocentric (human centered) legal system is out of line with our ecological reality. Recognizing that nature has rights harmonizes our legal system with what we know to be true -- humans cannot dominate, and quite literally issue “permits” to destroy (as provided by environmental regulations), our natural and animal communities without severe consequences. With the understanding that non-human inhabitants of the Earth, such as the southern resident orcas, are sentient beings comes the recognition that they, too, have rights. Not as “persons”, but in their own right as living beings with whom we co-exist. Recognizing that the southern resident orcas have enforceable rights in their own right is critical to their continued existence. With only 75 left, it is self-evident that legislation, such as the Endangered Species Act, has largely failed them. Indeed, our entire legal structure has failed them, and us, by perpetuating the delusion that it is only humans (and corporations) who have rights. I hope that we all intuitively know that by killing life on this planet, we are killing ourselves, and that we cannot thrive in a legal structure that fails to pay heed to our interconnectedness. In dire circumstances lies hope for a paradigm shift."

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Act today to save the Southern Resident Killer Whales!

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More about the Southern Resident killer whale Coalition Partners

The Nonhuman Rights Project (NHRP) is the only civil rights organization in the United States working through litigation, public policy advocacy, and education to secure legally recognized fundamental rights for nonhuman animals. https://www.nonhumanrights.org/

People for the Ethical Treatment of Animals (PETA) is the largest animal rights organization in the world, with more than 6.5 million members and supporters. PETA focuses its attention on the four areas in which the largest numbers of animals suffer the most intensely for the longest periods of time: in the food industry, in the clothing trade, in laboratories, and in the entertainment industry. PETA works through public education, cruelty investigations, research, animal rescue, legislation, special events, celebrity involvement, and protest campaigns. https://www.peta.org

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[i] https://en.wikipedia.org/wiki/Killer_whale

[ii] https://www.npr.org/sections/13.7/2012/09/11/160934187/for-how-long-have-we-been-human

[iii] http://newsroom.ucla.edu/releases/ucla-biologists-report-how-whales-159231

[iv] http://www.dailygalaxy.com/my_weblog/2010/06/whale-evolution-a-snapshot-of-planet-earth-from-55-million-bc-to-present.html

[v] https://www.orcanetwork.org/Main/index.php?categories_file=Natural%20History%20of%20Orcas%20-%20Part%201

[vi] http://us.whales.org/wdc-in-action/meet-different-types-of-orca

[vii] https://en.wikipedia.org/wiki/Killer_whale

[viii] https://www.thestranger.com/books/feature/2015/08/05/22646533/orcas-have-ruled-the-planet-longer-than-we-have-and-theyre-smarter-than-we-know

[ix] https://www.orcanetwork.org/Main/index.php?categories_file=Births%20and%20Deaths

[x] https://www.thestranger.com/books/feature/2015/08/05/22646533/orcas-have-ruled-the-planet-longer-than-we-have-and-theyre-smarter-than-we-know

[xi] https://www.thestranger.com/books/feature/2015/08/05/22646533/orcas-have-ruled-the-planet-longer-than-we-have-and-theyre-smarter-than-we-know

[xii] https://www.thestranger.com/books/feature/2015/08/05/22646533/orcas-have-ruled-the-planet-longer-than-we-have-and-theyre-smarter-than-we-know

[xiii] https://www.thestranger.com/books/feature/2015/08/05/22646533/orcas-have-ruled-the-planet-longer-than-we-have-and-theyre-smarter-than-we-know

[xiv] https://www.peta.org/features/wild-captured-orcas-make-legal-history/

[xv] https://www.seaworldofhurt.com/features/court-case-seaworld/

[xvi] http://www.blackfishmovie.com/about

[xvii] http://time.com/3987998/seaworlds-profits-drop-84-after-blackfish-documentary/

[xviii] https://www.usatoday.com/story/news/nation-now/2014/03/07/san-diego-seaworld-orca-shows/6162331/

[xix] https://www.cnbc.com/2017/01/07/seaworld-san-diego-ending-killer-whale-shows.htm

Earth Law for Angoon, Alaska

By Jaishal Dhimar

For thousands of years, civilizations have organically spurred up near water sources. Of course any civilization near a water source gains use of easy to access shipping routes, but even today with our multitude of planes and highways for ground transport, we humans continue to find the coast home. 39% of the world’s population currently live directly on the shoreline.

As the world’s coastlines recede due to the devastating effects of global warming we see an increase in people living closer to the coastline. Naturally, seafood production and consumption has increased.

The Native Tnglit people of Alaska, whose name translates to “People of The Tides” have called the Southeastern Alaskan shoreline home for thousands of years. Much of their diet consists of local seafood and other native species. As stated in my last blog, much of coastal land was or is owned by private companies.

The Tnglit people are facing an issue from the Green Creaks Mining company. Green Creaks is encroaching on natural land in Hawk Inlet by infesting it with their dumping. This infected water disturbs local fauna, and creatures as far as sixty miles away in Angoon, where a large Tnglit population resides. As coastlines recede more of the dangerous minerals from the mining company is breaching further away from it’s dumping site. We have to re examine policy to keep up with changing environmental systems.

Source: University of Alaska www.uaf.edu/anla/collections/map/

What is Angoon/Hawk Inlet?

Hawk Inlet is a beautiful port considered to be apart of Juneau, Alaska. Hawk Inlet is a key part of Juneau, as not only is it a port, but also used as a nearby airport, and apart of the Admiralty mining district. Hawk Inlet has been a key part of infrastructure for Alaska’s capital, Juneau, for over one hundred years. Without this key district, much of Alaska’s economy would be in shambles, as the mining district is the 5th highest producer of silver in the world, and a huge producer of other materials as well.

Source: John Cobb Field Handbook(University of Washington) content.lib.washington.edu/cobbwebb/index.html

Hawk Inlet has been a port since 1908.

There is one allowed discharger of materials in Hawk Inlet and that is Green Creeks Mine operated by Hecla Green Creeks Mining Company. Green Creaks had an ore spill in 1989 and studies show that there is three times as much mercury in local shellfish, and sediment compared to the rest of the state of Alaska. Many of these creatures travel downstream, and are consumed by seal and other species, who have  been found with excess mercury in their systems.

For reference, fish do often naturally have small amounts of mercury in their system as the Earth’s crust creates mercury organically. However, Alaskan native species are often found to have very little to no mercury in their system. The Green Creeks Mining company is seeking to expand.

Angoon is a gorgeous natural habitat and has the highest density of brown bears and bald eagles in the world. About sixty miles downstream from Hawk Inlet, it is off the beaten trail, Rarely visited by tourists, especially compared to Juneau, but Angoon is home to some of the coastal Tlingit people. Angoon is in protected territory, in the center of the Tongass National forest that could possibly be adversely affected by the pollution coming off from Hawk Inlet.

Figure 1 Source: Carl Chapman "Driving to Alaska" flickr.com/photos/12138336@NO2/1953213698/

The small city of Angoon

The mine is an important economic factor from the mines to Juneau, but the people of Angoon are being directly impacted as well as other people ingesting some of the local seafood. This is only a small fraction of the problem as not only is Hawk Inlet affecting local areas, other mines near Juneau are flowing into tributaries near the Taku River, close to Juneau. Many of these mining companies decide to leak material into the rivers and dealing with the light consequences later. Comments have been made about the Tulsequah Chief Mine, that while the government requests the mining companies clean up their mess, the mining companies either account for the fines and continue to do what they were doing previously, or ignore the requests completely.

Day Trip to Angoon Joseph/Umnak http://www.flickr.com/photos/umnak/

What’s Being Done?

The Tlingit people and other tribes banded together to create a coalition to tackle these problems that impact indigenous people’s way of life. The Angoon Community Association, tackles the various issues that prevent Angoon citizens from having say in issues related to their home and surrounding area, along with being a bastion for community outreach.

I want to thank “Di-kee aan kaawoo” which translates to “Our heavenly Father” for the opportunity to take care of the resource. A quote by Frank Jack, Sr., Tlingit Bear Chief and House Master of the Shanaax Hit (Valley House) of Angoon, Alaska.

The association have multiple demands, including but not limited to,

1. Indigenous peoples have the right to the full enjoyment of all human rights and fundamental freedoms;

2. Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision making institutions;

3. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them;

4. Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including, health;

5. Indigenous peoples have the right to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals and Minerals;

6. Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard;

7. States shall establish and implement a transparent process to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and Resources;

8. Indigenous peoples have the right to redress for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent;

9. Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources; and

10. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.

In short, the people of indigenous demand retribution for not only themselves, but the land that has been abused, ask for representation in future projects relating to their territory or resource, and have the right to their traditional culture.

What Would Earth Law Look Like For Angoon?

Option 1: Amendment of Angoon Community Association Constitution

ELC can assist in drafting amendments to the “Constitution and By-laws of the Angoon Community Association Alaska.” Ratified in 1939, the law can be amended to adapt to the present times and to provide a stronger foundation to protect indigenous and nature’s rights. ELC partners Movement Rights and CELDF have helped the Ho-Chunk Nation and Ponca Nation amend their constitution to include rights of nature. On October 20th 2017, the Ponca Tribe of Oklahoma took the historic step of agreeing to add a statute to enact the Rights of Nature. 

Ho-Chunk Nation of Wisconsin general council voted to add “rights of nature” to tribal constitution 2016. The amendment establishes: “Ecosystems and natural communities within the Ho-Chunk territory possess an inherent, fundamental and inalienable right to exist and thrive.” Further it prohibits frac sand mining, fossil fuel extraction, and genetic engineering as violations of the Rights of Nature. 

Option 2: Pass a Sustainability Rights Ordinance for Angoon

ELC can assist in drafting a local law that can address the issues Angoon faces. Particularly, the law may include the right of Angoon’s community to self-governance, to a healthy environment and to defend and enforce the rights of nature and other applicable laws. This can also include specific provisions referring to restoration of Hawk Inlet, practices regarding the mine and gray water discharge, and stricter implementation of the CWA.

Option 3: Treaty Agreement for legal rights for the Hawk Inlet and/or Chatham Straits

ELC can assist in drafting a treaty agreement between the Angoon Community Association and the State or Federal government. The agreement would include declaring the ecosystems as legal entities. The agreement would also create new standard procedures for decisions, all must go through a designated Board, to be comprised of both Angoon community members and state/federal persons to ensure all decisions serve the interests of the ecosystem.

In 2013, the Tūhoe people and the New Zealand government agreed upon the Te Urewera Act, giving the Te Urewera National Park “all the rights, powers, duties, and liabilities of a legal person.”

A Board was then established to serve as “guardians” of Te Urewera and to protect its interests. The stated purpose of the Act was to protect Te Urewera “for its intrinsic worth,” including its biodiversity and indigenous ecological systems.

As a result, the government gave up ownership of Te Urewera, and all decisions must serve the interests of and preserve the relationship of the Te Urewera and the Tuhoe people. From a legal standpoint, this legislation is monumental. There is no longer a requirement to demonstrate personal injury in order to protect the land; lawsuits “can be brought on behalf of the land itself.”

Similarly, the Maori people have successfully pursued similar results for the Whanganui River and its tributaries, under the Maori worldview “I am the River and the River is me.” Under the Tutohu Whakatupua Treaty Agreement, the river is given legal status under the name Te Awa Tupua . Te Awa Tupua is recognized as “an indivisible and living whole” and “declared to be a legal person.”

Two guardians, one from the Crown and one from a Whanganui River iwi, will be given the role of protecting the river.

Additionally, these agreements have come with apologies from the Crown and payment in damages caused. In the case of the Whanganui River a “financial redress of NZ$80m is included in the settlement, as well as an additional NZ$1m contribution towards establishing the legal framework for the river.

In essence, the government has allowed mining companies to decide what actions they want to take. Whether that is half way cleaning up long lasting damage, or deciding to dump in new territories, there is little substantial action taken that deters companies from moving forward with long set plans.

If Earth Law is bestowed upon the Association’s land, this will allow for higher levels of protection for all the surrounding ecosystem, animals, and the humans to allow for prosperity across generations rather than the short-lived mine that only benefits the corporation. 

How you can help

• Check us out at www.earthlawcenter.org to keep updated on how Earth Law Center is working to transform the law to recognize and protect nature’s inherent rights to exist, thrive, and evolve.

• Stay informed and sign up for our newsletter

• Become a volunteer with ELC

• Donate to the initiative

My previous blog about Louisiana Wetlands.

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• https://www.usatoday.com/story/money/2016/07/14/bp-deepwater-horizon-costs/87087056/

• http://thorpe.ou.edu/IRA/consangoon.pdf

• https://dec.alaska.gov/spar/csp/mercury/

• http://dhss.alaska.gov/dph/Epi/eph/Documents/DHSS_DEC_2016-02-29_Angoon%20Response.pdf

• http://www.friendsofadmiralty.org/hawkinlet.htm

• https://www.adn.com/environment/article/angoon-officials-worry-about-mercury-subsistence-foods/2016/02/07/

• http://juneauempire.com/local/2017-04-27/angoon-seal-hunters-still-solving-mercury-mystery

• https://ourworldindata.org/meat-and-seafood-production-consumption

• content.lib.washington.edu/cobbwebb/index.html

• www.uaf.edu/anla/collections/map/

Rights of Nature to Save the Endangered Sharks of the Galapagos

Hammerhead shark Vlad Karpinskiy @Creative Commons

By Shelia Hu and Michelle Bender

The Galápagos Islands are a haven for sharks

With 34 of the globe’s 440 known species, the Galapagos Islands have the highest abundance of sharks in the world.[1]

A UNESCO World Heritage center, the Galapagos lies about 1,000 kilometers from the Ecuadorian Coast. Three major tectonic plates —Nazca, Cocos and Pacific— meet here. The ongoing seismic and volcanic activity create a truly unique ecosystem. The Galapagos achieved fame in scientific circles when Charles Darwin published the “Voyage of the Beagle” in 1839.[2]

The Galápagos Marine Reserve is one of the largest marine reserves in the world, covering a total area of 130,000 square kilometers of Pacific Ocean and featuring a dynamic mix of tropical and Antarctic currents and rich areas of upwelling water.

Consequently, the Galapagos Marine Reserve (GMR) contains an extraordinary range of biological communities, hosting such diverse organisms as penguins, fur seals, tropical corals, and large schools of hammerhead sharks. The GMR has a high proportion of endemic marine species – between 10% and 30% in most taxonomic groups – and supports the coastal wildlife of the terrestrial Galapagos National Park (GNP). It also appears to play an important role in the migratory routes of pelagic organisms such as marine turtles, cetaceans and the world’s largest fish, the whale shark (Rhincodon typus).[3]

In 2016, the President of Ecuador, Rafael Correa, announced the creation of a new marine sanctuary to protect the water around the Galapagos Islands. The sanctuary is designed to fall around the islands of Darwin and Wolf in order to protect the world’s greatest concentration of sharks.[4]

The area will include 39,000 square kilometers within the Galapagos Marine Reserve, an area in which industrial fishing has been banned since 1998 but where smaller fishing operations are allowed.[5] The new shark sanctuary will mean several areas within the GMR will be designated as “no-take” zones where no fishing of any kind will be allowed. The sanctuary will protect around 32% of waters surrounding the Galapagos, with no fishing activity, mining, or oil drilling allowed at all.[6]

The extra step of protection is needed as the ecosystem faces the increased stressors of climate change, industrial trawlers, and illegal fishing.

Whale Shark Vlad Karpinkskiy @Creative Commons

The mystery of the pregnant whale sharks

The largest fish in the ocean, the whale shark eats plankton and other small fish – collected as the whale shark swims. Preferring warm waters, whale sharks populate all tropical seas. They are known to migrate every spring to the continental shelf of the central west coast of Australia. The coral spawning of the area's Ningaloo Reef provides the whale shark with an abundant supply of plankton.[7]

There isn’t much else known about this type of shark and its social habits. They haven’t been studied as well as other sea creatures, according to the IUCN.[8]

The whale sharks in the Galapagos Marine Reserve, unlike elsewhere, tend to be large mature females (99.8%), and over 90% appear to be pregnant.[9] To find out more about why these pregnant whales stopover at the Galapagos (but with no sign of newborns), the Galapagos Whale Shark Project launched. After tracking it was found that Darwin island provides an important point for navigation for the sharks, on their way to feeding grounds in the Pacific Ocean.[10]

Hammerhead nursery found in Galápagos waters

A nursery for scalloped hammerhead sharks was recently discovered along the coast of the Santa Cruz Island in the Galapagos, good news for better understanding and protecting an endangered species.[11]

Their wide-set eyes give them a better visual range than most other sharks. And by spreading their highly specialized sensory organs over their wide, mallet-shaped heads, they can more thoroughly scan the ocean for food. One group of sensory organs is the ampullae of Lorenzini. It allows sharks to detect, among other things, the electrical fields created by prey animals. The hammerheads’ increased ampullae sensitivity allows them to find their favorite meal, stingrays, which usually bury themselves under the sand.[12]

After a nine to ten month gestation, scalloped hammerhead sharks give birth to their pups who can then slowly mature into adulthood in the well-protected, food-rich environment safe from many of their natural predators (like other sharks) in the open ocean. [13]

Threats facing sharks in Galápagos waters

Sharks are under serious threat around the globe. It is estimated that up to 70 million sharks are killed by people every year, due to both commercial and recreational fishing. The International Union for Conservation of Nature (IUCN) has classified 64 of the 440 shark species as endangered, and one-third at risk of extinction, according to its 'Red List' criteria.[14] Sharks are caught intentionally or as accidental "by-catch" in virtually all types of fisheries worldwide.[15]

Most sharks are long-living species that grow slowly, mature late, and have low reproduction rates. These biological factors make sharks particularly vulnerable to overfishing and mean that populations can be slow to recover once depleted. The continuous depletion and even eradication of these top predators in the structure of many marine habitats will have catastrophic consequences for ecosystems such as coral reefs and may cause the extinction of many other interdependent species.[16]

While sharks in Galapagos are protected by the Galapagos Marine Reserve, they roam quite far and can be affected by illegal fishing and bycatch in fisheries targeted at other species.[17]

Over 6,600 dead sharks, mostly hammerheads but also silky, thresher and mako sharks— which are off-limits to industrial fishers within the marine reserve — were found on an unauthorized ship in the Galapagos Reserve in August 2017. An Ecuadorean judge has since convicted the ship's 20 crew members of possessing and transporting protected species. In addition to prison sentences, the ruling also fined them $5.9 million.

"The sentence marks a milestone in regional environmental law and an opportunity to survive for migratory species," the country's Ministry of Environment said in a statement. This case also marked the first conviction of an environmental crime in 14 years of Galapagos law and set a precedent for prosecuting shark finning and other crimes against nature in the Galapagos (Franco Fernando, 2015).

Isla de San Cristobal, Diego Delsa

Ecuador, a world leader in Rights of Nature

In 2008, Ecuador became the first country to adopt Rights of Nature into its Constitution. The Constitution, endows “Nature or Pachamama, where life is reproduced and exists” with inalienable rights to “exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution.”

The Constitution also gives nature the right to restoration and the people the right to “live in a healthy and ecologically balanced environment that guarantees sustainability and the good way of living.” It is the responsibility of the Ecuadorian State to “respect the rights of nature, preserve a healthy environment and use natural resources rationally, sustainably and durably” and to provide incentives to the citizens to “protect nature and to promote respect for all the elements comprising an ecosystem.”[18]

Ocean Rights can help the sharks of the Galapagos

Earth Law Center is working with local partners through the Global Alliance for the Rights of Nature to ensure the constitutional amendment is implemented with respect to ocean governance.

Implementing ocean rights and expanding protection of the Galapagos, will also help Ecuador achieve its goals within the Convention on Biological Diversity (CBD) and United Nations Sustainable Development goals; including expanding marine protected areas to 8170 square kilometers.[19]

The Marine Reserve represents the beginning of the desire to apply rights of nature to ocean protection. The Special Law of the Galapagos’s guiding principle for governance is ‘‘An equilibrium among the society, the economy, and nature; cautionary measures to limit risks; respect for the rights of nature; restoration in cases of damage; and citizen participation.” However, in order to ensure activities within the Reserve respect the rights of nature, there needs to be legally binding provisions that do so within the management plan.

One way to implement the rights of nature in the Galapagos, is to pass a decree declaring the Reserve (and proposed Sanctuary) as a legal entity, subject to basic rights. Defining in law the Reserve as a legal entity recognizes the area as a living whole, and legally requires that the State protects the rights of the ecosystem and species within.

Similarly the management plan must explicitly define the highest objective for management as conserving the Reserve in as close to its natural state as possible. Protecting and restoring the ecosystem for its own benefit can occur only if conservation objectives are prioritized over human-centered objectives, such as economic development. Secondary objectives can include tourism, fisheries, recreation, education and scientific research, but these must also be explicitly defined as secondary objectives.

In countries, such as New Zealand, guardians are being appointed on the management boards for the protected area that represent the ecosystem’s interests and ensures it’s rights are not being violated; they will review decisions, monitor compliance and develop new rules to protect the Reserve. Such an approach can also work in Ecuador, allowing the guardians to use their standing to bring legal action upon parties involved with activities directly affecting the health and well-being of the Reserve.

Finally, management must fully take into account all species interactions and land-based activities. In order to manage human activity holistically within the Reserve, criteria must be developed to ensure activities respect the rights of nature. Such criteria can include:

• Reflecting on the true cost of our activities and their impacts, which includes costs to the marine ecosystem and its ability to renew and restore itself.
• Evaluate decisions using attributes and scores that assign the highest scores to those activities and regulations that lead to the fulfillment of the conservation objectives.
• Application of the Precautionary Principle which puts the burden of proof on those wishing to take potentially harmful action – to prevent harm before it occurs.
• Development of alternative livelihoods that allow for both human and ecological interests to thrive. Key considerations for Earth-Law centered ecological criteria may include:
• Impacts to keystone species, such as sharks, are given priority in decision making.

The Earth Law Framework for Marine Protected Areas further outlines how rights of nature can be implemented in the Galapagos Marine Reserve. Employing this framework will help Ecuador implement rights of nature throughout their oceanscape.

Act today and join the growing global movement of Earth Law by:

• Stay informed
• Volunteer with ELC
• Support ELC

More about Global Alliance for Rights of Nature (GARN)

The Global Alliance for the Rights of Nature (the “Alliance”) is a network of organizations and individuals committed to the universal adoption and implementation of legal systems that recognize, respect and enforce “Rights of Nature” and to making the idea of Rights of Nature an idea whose time has come. Find out more at http://therightsofnature.org/

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[1] https://galapagosconservation.org.uk/sharks-galapagos-islands/; https://www.theguardian.com/environment/2016/mar/21/ecuador-creates-galapagos-marine-sanctuary-to-protect-sharks

[2] https://whc.unesco.org/en/list/1

[3] https://www.galapagoswhaleshark.org/the-project/why-study-whale-sharks/

[4] “Ecuador creates new marine sanctuary to protect sharks”, 21 March 2016, Galapagos Conservancy, https://www.galapagos.org/newsroom/new-marine-sanctuary/ Accessed: 7 June 2018

[5] “Ecuador creates new marine sanctuary to protect sharks”, 21 March 2016, Galapagos Conservancy, https://www.galapagos.org/newsroom/new-marine-sanctuary/ Accessed: 7 June 2018

[6] Ibid.

[7] https://www.nationalgeographic.com/animals/fish/w/whale-shark/

[8] https://www.livescience.com/55412-whale-sharks.html

[9] https://galapagosconservation.org.uk/projects/whale-shark-monitoring/

[10] https://www.galapagoswhaleshark.org/the-project/what-we-discovered-so-far/

[11] https://news.nationalgeographic.com/2018/01/hammerhead-shark-nursery-discovery-galapagos-spd/

[12] https://www.nationalgeographic.com/animals/fish/group/hammerhead-sharks/

[13] https://news.nationalgeographic.com/2018/01/hammerhead-shark-nursery-discovery-galapagos-spd/

[14] https://www.theguardian.com/science/2009/jun/25/sharks-extinction-iucn-red-list

[15] http://sharksmou.org/threats-to-sharks

[16] http://sharksmou.org/threats-to-sharks

[17] https://galapagosconservation.org.uk/sharks-galapagos-islands/

[18] Republic of Ecuador, Constitution of 2008, available at: http://pdba.georgetown.edu/Constitutions/Ecuador/englis h08.html.

[19] Ibid.

Earth Law Ocean Framework Launches!

By Kaitlyn O’Halloran

Michelle Bender, Ocean Rights Manager at Earth Law Center, unveiled the final Earth Law Framework for Marine Protected Areas at the Ocean Conference at EARTHx on Earth Day 2018.

Building on past and current protections, this Earth Law Framework adopts a holistic, systems and rights-based approach to governance. This ocean framework provides guidance to countries establishing marine protected areas.

As commercial fishing stocks run decline and images of the Great Pacific Plastic patch spread over the media, we are all looking for ways to protect the ocean — which covers 70% of the planet we call home.

How is this different from existing ocean protections?

Rather than looking at the ocean as a limitless resource, the Framework considers the ocean as a fellow subject — that is, an entity with a legal right to exist, thrive and evolve.

The ocean rights framework specifically calls for:

• the legal recognition of marine protected areas;

• the legal recognition of the rights of and values associated with marine protected areas;

• the appointment of guardians to represent marine protected areas’ interests;

• the right for humans to speak on behalf of marine protected area in legal matters;

• the application of legal rights in the existing governance system.

Only 4% of the ocean remains undamaged by human activity

The scale and inaccessibility of oceans means that we have better maps of Mars than the ocean [1].  The “out of sight, out of mind” syndrome comes into play, since if we don’t know what damage has been done, it’s the same as no damage at all.

Ten years ago, an international team of scientists led by Dr Benjamin Halpern of the National Center for Ecological Analysis and Synthesis in Santa Barbara, USA, developed the first detailed global map of human impacts on the seas, using a sophisticated model to handle huge amounts of data. The team divided the world’s oceans into square kilometer sections and combined data for each section on 17 different human impacts to oceans, including fishing, coastal development, fertilizer runoff, and pollution from shipping traffic [2].

Their findings showed that just 4% of the world’s oceans remain undamaged by human activity. Climate change, fishing, pollution, and other human activities have taken their toll in some way on all the other 96% of the world’s oceans. 41% of the oceans are seriously damaged [3].

Research says fish are sentient

According to the Royal Society for the Prevention of Cruelty to Animals (RSPCA), fish are sentient animals who form friendships, experience “positive emotions” and have individual personalities. The RSPCA published a landmark new study which found zebrafish are social animals in a similar way to humans and other mammals [4].

Fish can also reason their way through a space-time puzzle designed by humans. Cleaner wrasse chose between eating from two plates: one blue, one red. If they started with the red, the blue plate stayed and they could have both. If they started with the blue, then the red plate was removed. Elsewhere, similar experiments have been done with three species of intelligent primates: eight capuchin monkeys, four orangutans, and four chimpanzees.

The fish solved the problem better than any of the primates. Of the six adult cleaner wrasses tested, all six learned to eat from the red plate first. It took them around 45 trials to figure it out. In contrast, only two of the chimpanzees solved the problem in less than 100 trials (60 and 70, respectively). The remaining two chimps, and all of the orangutans and monkeys, failed the test. The test was then revised to help the primates learn, and all of the capuchins and three of the orangs got it within 100 trials. The other two chimps never did [5].

By way of comparison, one of the study’s authors, Redouan Bshary, tried the test on his four-year-old daughter. After one hundred trials she had not learned to eat from the red plate first [6].

What difference will Earth Law make?

There are many practical and immediate ways that Earth Law can strengthen and accelerate efforts to protect and restore ocean health.

• Earth Law will require regulations to regulate harmful human activities from land. For plastic pollution for example, plastic manufacturing, handling, and transportation facilities could be required to implement minimum best management practices (BMPs) to control discharge and a 1mm mesh screen installed downstream from all preproduction plastic locations.

• Reduce carbon dioxide emissions. For instance by driving the transition to renewable energy, and decreasing subsidies to the fossil fuel industry.

• Reduce fishing pressures to levels that allow the fish populations to naturally regenerate themselves to as close to the natural carrying capacity of the ecosystem as possible. This includes the establishment of no-take zones, stricter quotas, seasonal closures etc.

Earth Law also places the burden of proof on those wishing to undertake the extractive activity. They must show that the activity will not violate the MPA’s rights (compared to the current situation where defenders of ocean health bear the burden of proof and must prove to a court of law that the proposed activities will harm ocean health before legal action can be taken). The different roles for humans in Earth Law include the following:

• Guardians for the ocean can participate in any legal process affecting the ecosystem (particularly “appearing before national legislative and rule-making bodies to help clarify ocean impacts of proposed actions”), develop or review any relevant guidelines, monitor the health of the MPA [marine protected area], monitor compliance with applicable laws and treaties, and represent the ecosystem in disputes. The guardians have “standing” on behalf of the marine protected area.

• Citizens can seek injunctive relief from harmful activities such as oil spills, overfishing, plastic pollution etc. not only for funds to be applied toward restoration but for a change in behavior. Required injunctive relief could be stricter fishing quotas or moratoriums on taking species if the level or way of hunting is violating the species’ rights.

• Local communities can fulfill their collective responsibility and press for government action if a protected area is not being implemented, reducing the phenomenon of paper parks.

Earth Law Framework already at work

Organización para la Conservación de Cetáceos (OCC), a small non-government organization in Uruguay, focuses on marine conservation. In 2013, a delegation of primary and secondary students led by OCC met face-to-face with parliamentarians to designate Uruguay’s territorial sea as a sanctuary for Whales and Dolphins.

Uruguay adopted law 19.128 in September 2013, prohibiting the chasing, hunting, catching, fishing, or subjecting of cetaceans to any process by which they are affected or harmed.

Thirty-one species of cetaceans, either resident or migratory, exist within the Sanctuary, including the Southern Right Whale and the endangered La Plata Dolphin. In this region, the convergence of two major ocean currents, the Rio de la Plata estuary, “and the relatively shallow waters of the area, combine to produce a singular hydrographic system.” This creates one of the “most productive aquatic systems in the world, used by many demersal fish for spawning and nursing and sustains several artisanal and industrial fisheries [7].”

Earth Law Center is partnering with OCC to establish legal rights for Uruguay’s Whale and Dolphin Sanctuary. Designating the Sanctuary as a legal entity subject to basic rights will:

• Require the government to support the creation of a management plan for the Sanctuary

• Require the State to protect, restore, and maintain the health of the Sanctuary, namely through the establishment and implementation of marine protected areas

• Help the country reach the SDG and CBD AICHI targets — 10% of national waters protected by 2020

• Regulating tourism and shipping traffic to have minimal effect on cetaceans in the Sanctuary

• Prohibiting extraction, seismic exploration, offshore drilling and deep sea mining in critical areas

Achievements include promoting a decree for responsible whale watching (261/02), promoting the installation of viewing platforms along the coast and establishing protocols of good marine practice and certification.

Next steps include:

• Submit a proposal to Parliament to designate legal rights for the Sanctuary through a legal decree

• Draft the management plan for the Sanctuary informed by ELC’s model MPA framework and coordinated with the National System of Protected Areas

• Plan participatory meetings in each community, including technicians in fisheries and marine management

We have submitted a Hope Spot application to Mission Blue to amplify awareness and impact of campaign. A decision should be made by the Sanctuary's fifth anniversary in September 2018.

Ocean conservation organizations worldwide are supporting the Earth Law Framework. In fact, the framework has spurred conversations and partnerships in over 35 countries. We all agree that our approach needs to change, and that we must respect and protect the ocean. Earth Law provides the way to implement this change and respect for life.

Conclusion

Let’s work together to reverse the decline of ocean health before it is too late.

Our actions add up. The state of Hawaii recognizes this by becoming the first state to ban sunscreens which contain oxybenzone and octinoxate (present in about 60% of commercial sunscreens today). Scientists have found that these chemicals contribute to coral bleaching.  An estimated 14,000 tons of sunscreen is believed to be deposited in the ocean annually, with the greatest damage found in popular reef areas in Hawaii and the Caribbean [8]. Taking effect in 2021, the law helps nudge manufacturers to do what they have thus far been unwilling to do – make a reef safe sunscreen.

We are at a critical juncture in human history, we have the unique opportunity to help protect and restore ocean health. Here is a framework that provides a tangible and innovative solution. Let’s work together to protect our oceans both now and for future generations.

How Can You Help?

To ensure the ocean’s health and future for many years to come, we must take advantage of this opportunity to change the way the ocean is treated. There are various ways in which you can help protect the oceans and support the Framework for Marine Protected Areas:

• We can enforce the Earth Law Framework for Marine Protected Areas by establishing legal standing for the oceans. Read the framework here.

• We can work on local levels to ensure that the rights of the ocean are being acknowledged and protected. Launch a local initiative here.

• We can ensure that the inherent rights of the ocean are made known to the public and legislators alike, to promote the Earth Law Framework so its guidelines are efficiently enforced. Volunteer with Earth Law Center here.

• We can encourage our representatives to implement the guiding principles of the Earth Law Framework when making decisions which affect the ocean’s health. Donate here.

• We can continue to become more informed citizens, focusing on efforts to further protect the ocean and its inherent rights. Sign up for the Earth Law Center Newsletter here.

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1. https://www.nasa.gov/audience/forstudents/5-8/features/oceans-the-great-unknown-58.html

2. http://oceanleadership.org/state-of-our-oceans/

3. http://oceanleadership.org/state-of-our-oceans/

4. https://www.independent.co.uk/news/science/fish-sentient-animals-friends-positive-emotions-study-study-source-ethics-eating-pescaterians-vegans-a7660756.html

5. http://nautil.us/issue/40/learning/fish-can-be-smarter-than-primates

6. What a Fish Knows by Jonathan Balcombe p.128

7. Miloslavich P, Klein E, Díaz JM, et al. Marine Biodiversity in the Atlantic and Pacific Coasts of South America: Knowledge and Gaps. Thrush S, ed. PLoS ONE. 2011;6(1):e14631. doi:10.1371/journal.pone.0014631.

8. https://www.nytimes.com/2018/05/03/travel/hawaii-sunscreen-ban.html

An Earth Law Solution to Ocean Plastic Pollution

By Michelle Bender

Photo by Michelle Bender

Plastic pollution is emerging as a top threat to ocean ecosystems. By 2025, there could be 1 ton of plastic for every 3 tons of fish in the ocean. Plastic debris affects nearly 700 species worldwide through entanglement and ingestion, alters natural biological and chemical processes, provides a means for the introduction of toxins into the food web, and costs the U.S. economy millions of dollars annually. The majority of this debris comes from land-based sources (e.g., plastic manufacturers, processors, landfills, sewage overflows, litter). With only 14% of plastic packaging and containers recycled in the U.S., 75% of leakage is due to uncollected waste.

Past efforts to address plastic pollution have failed in stemming the flow from land to sea. As the only high income country listed in the top 20 contributors to ocean plastic pollution, the U.S. plays a critical role in managing the waste stream of plastics. The absence of a comprehensive plastic pollution law and policy framework provides an opportunity for federal agencies to explore how and whether existing law and policy mechanisms can be used to address the threat of plastic pollution. This report provides an example by analyzing the Clean Water Act and relevant provisions.

The inability of environmental law to address growing threats, such as plastic pollution, represents the need for a paradigm shift. The environmental laws of the 1970s have yet to fulfill their goals and purposes. The Clean Water act has yet to prohibit discharges and produce clean water because it allows pollution under permitting systems.

As a result, this report attempts to challenge our assumptions behind current environmental law by introducing Earth Law, a system of law that recognizes nature’s inherent rights to exist, thrive and evolve. An Earth Law approach would prohibit the discharge of plastic into our nation’s waterways by considering the health of all Earth members. Therefore, this report proposes that the threat of plastic pollution will only be controlled if humans govern themselves in a way that recognizes their relationship with nature.

I. Introduction

a. The problem

Scientific studies indicate that an emerging threat faces our freshwater and marine ecosystems: plastic pollution.[i] Since plastics are cheap, versatile and strong,[ii] and deliver significant societal benefits (e.g., energy savings, consumer protection, healthcare innovations),[iii] it comes as no surprise that plastic production has increased exponentially since the 1960’s.[iv] If current practices continue as usual, by 2025 there could be 1 ton of plastic for every 3 tons of fish in the ocean.[v] With the ability to persist for up to 4 centuries,[vi] plastic products are harming freshwater and marine ecosystems.[vii]

b. Types of plastic

Plastics consist of a variety of synthetic organic polymers and additives, giving each plastic product its unique properties.[viii] Plastic is generally split into two categories: micro- and macro-plastics. Microplastics (e.g., pellets, granules) are smaller than 5 mm, found throughout the water column, and compose 95% of the plastics in the ocean.[ix] Not readily seen, they receive less attention than macroplastics, which are visible pieces of debris, larger than 5 mm, and usually found on surface water or coastal beaches.[x]

c. Impacts of plastic

Plastics pose a significant threat to ocean and freshwater ecosystems and the benefits humans receive from them.[xi] The amount of plastic debris discarded by the commercial fishing industry has doubled over the last 50 years (from 340,000 tons in 1975[xii] to 640,000 tons annually[xiii]).

First, plastics threaten the survival of many species of wildlife, negatively impacting nearly 700 species worldwide.[xiv]

• Larger items, such as fishing nets, entangle and kill wildlife.[xv]

• Smaller items ingested by wildlife lower fitness by decreasing fertility.[xvi]

• As plastic breaks down, it becomes less buoyant and sinks to the ocean floor.[xvii] This can lead to hypoxia (oxygen deficiency), dead zones, and a shift in sediment properties necessary for sex- determination in animal eggs.[xviii]

• Plastics transport invasive species.[xix] As a medium for long distance dispersion, plastics carry species to uninhabited areas where they compete with native species. For example, a study in the Western Atlantic showed insect eggs on 24% of the plastic pellets sampled.[xx]

Second, plastic products serve as a conduit for the release and travel of toxins into and through freshwater and marine food chains, posing a threat to wildlife, public health, and the fishing industry.

• Plastic, mistaken as food, is ingested at all levels of the food web and travels through the food web via a process known as bioaccumulation (i.e., the accumulation of a substance in an organism’s tissue due to a greater intake rate than excretion or metabolic rate).[xxi]

• Plastics cause two chemical impacts: the release of additives (e.g., BPA), and the attraction and subsequent release of toxins (e.g., DDT, PCBs).[xxii]

• Plastic fragments can transport contaminants, increase their environmental persistence, and concentrate organic pollutants up to 106 times that of surrounding seawater.[xxiii] The chemicals present in plastic pollution, such as PCBs, lead to reproductive disorders or death, increase the risk of diseases and alter hormone levels.[xxiv]

Third, plastic pollution is costly.

• Beach cleanups cost coastal communities millions of dollars each year.[xxv] For example, Texas spends approximately $14 million a year cleaning beaches; and San Francisco spends approximately $6 million per year picking up cigarette butts.[xxvi]

• Plastics on beaches lower aesthetic value and therefore revenue for coastal communities and the tourism industry.[xxvii]

• Losses to the fishing industry occur through vessel damage, decreased fertility and ghost fishing (i.e., the continued trapping and killing of marine life by discarded fishing net). In the U.S., an estimated $250 million worth of lobster is lost to ghost fishing annually and four to ten million blue crabs are trapped in ghost fishing gear each year in Louisiana.[xxviii]

• Plastic litter fouls propellers and clogs the water intake of vessels.[xxix] This reduces fishing opportunities, and increases accidental death. In the U.S. alone, cleanup and boat repairs due to marine debris costs over $1 billion a year.[xxx]

d. The sources of plastic pollution

Rivers are highly polluted with plastic products from storm water runoff, wastewater and industrial effluent.[xxxi] As much as 80% of marine debris comes from land-based sources (e.g., plastic manufacturers, processors, landfills, sewage overflows, litter)[xxxii] and 60- 80% of all marine debris is plastic.[xxxiii]

Of the leakage that comes from land- based sources, 75% comes from uncollected wastes and 25% escape from within the waste management system.[xxxiv] Unfortunately, 80% of plastic waste is too low in value to incentivize recovery and recycling.[xxxv] As a result, an estimated 4.8 to 12.7 million metric tons of plastic waste entered the ocean in 2010 and today there is an estimated 580,000 plastic pieces per square kilometer.[xxxvi]

II. Addressing plastic pollution through environmental law and policy

As the only high income country listed in the top 20 contributors to ocean plastic pollution, the U.S. plays a critical role in managing the waste stream of plastics.[xxxvii]

a. National Pollutant Discharge Elimination System

The Environmental Protection Agency (EPA) regulates the discharge of pollutants into our nation’s waters.[xxxviii] Despite a final rule in 1987 controlling the amount of resin released from plastic manufacturing facilities,[xxxix] data suggests that “pre-production plastic resin pellets accidentally released from plastic processors contribute approximately 10% by count to the plastic debris problem.”[xl]

So, water-quality-based effluent limits (WQBELs) can significantly reduce the discharge of plastic waste. This next line of defense is based on “the amount of pollutants in the water without regard to the cost or technology availability.”[xli]

b. Water Quality Standards

The EPA creates national water quality criteria standards—standards upon which States may choose to build in more stringent measures at the state level[xlii]— based upon the latest scientific knowledge on the effects of the presence of pollutants.[xliii]

Mounting scientific evidence indicates that plastic poses a threat to our nation’s drinkable, fishable, and swimmable waterways. This scientific information indicates that the water quality criteria should be reviewed to determine whether plastic should be considered a criteria pollutant.

The EPA already recognizes that most trash that ends up in the ocean comes from land. The agency has developed the Trash Free Waters initiative “to reduce the amount of trash and litter that enters streams and rivers, lakes and bays, beaches and coastlines, and ultimately the world’s oceans”[xliv] and the National Marine Debris Monitoring Program, to monitor the sources and end-life of trash.[xlv] These programs include outreach, education, research and partnerships,[xlvi] but fail to enforce change (e.g., regulations and initiatives) through their existing statutory authority.

c. Total Maximum Daily Loads

Next, States are required to identify impaired waters,[xlvii] those that do not meet water quality standards, and establish limits on pollutants causing the impairment.[xlviii]

Establishing nationwide limits on the amount of plastic allowed in watersheds can significantly reduce the flow from land to sea. Current impairment and allowable limits do not take into account microplastics because this form of trash (i.e., anthropogenic debris that can be trapped by a 5 mm mesh screen) is smaller than 5mm.[xlix]

For example, in the Los Angeles watershed, 90% of the plastic debris by count and 13% by weight is micro-plastic smaller than 5 mm, and goes unregulated and uncaptured.[l] In California and the North Pacific Gyre, densities of microplastics have tripled during the last decade.[li] The definition, then, fails to address the issue of plastic pollution, threatening the coastal waters of California.[lii]

This presents an opportunity for the EPA to adopt a definition of Trash that includes micro-sized debris and therefore address the vast majority of plastic debris. Similarly, the EPA can initiate rulemaking for the implementation of Trash TMDL’s on all waterways,[liii] ensuring limits address trash of all sizes.

d. Multi-Sector General Permits

Under Section 205 of the Water Quality Act, which amended the Clean Water Act in 1987, the EPA created requirements for “storm water discharges associated with industrial activity”.[liv]

Therefore, more stringent requirements can be placed on plastic manufacturing facilities located on the coast to prevent the loss of pre- production plastic to storm water. The EPA can ensure the strongest control measures are attached to the permits in order to prevent the leakage of plastic from land to water. The EPA already requires that “facilities that handle pre-production plastic must implement best management practices (BMPs) to eliminate discharges of plastic in storm water.”[lv]

To promote further clarity and compliance, the EPA can codify required practices for implementation by pre-productions plastic facilities rather than leave it to be determined on a facility-by-facility basis as is the current practice. Evidence suggests “pre-production resin pellets accidentally released from plastic processors contribute approximately 10% by count to the plastic debris problem.”[lvi] Yet, California is the only state to regulate pre-production plastic[lvii] under state implementation of the CWA.

Regulation and 1 mm mesh screens downstream could significantly reduce the flow of plastic pollution.

Under the Porter-Cologne Water Quality Control Act, the Preproduction Plastic Debris Program controls the leakage of preproduction plastics[lviii] by requiring plastic manufacturing, handling, and transportation facilities to implement[lix] minimum BMPs to control discharge.[lx] As part of the permits, a 1mm mesh screen must be installed downstream from all preproduction plastic locations.[lxi]

If this program were implemented nationwide, the amount of pre-production plastic found in our waterways could be greatly decreased. Additionally, if MSGP permits included minimum BMPs and the requirement of 1 mm mesh screens downstream from facilities; General Permits would help reduce the flow of plastic pollution.

III. An opportunity for Earth Law to address plastic pollution

Earth Law (i.e., Jurisprudence) is an emerging field seeking to address the fundamental flaws of current environmental law and policy. This form of law explicitly recognizes “the interdependence among humans and the environment” and respects ecosystem relationships.

With an overarching purpose to support “a mutually beneficial relationship between humanity and the community of life on Earth,” humans govern themselves in ways, which benefit all beings and ecosystems.[lxii]

Earth Law governs humans as co-equal parts with other Earth members due to the assumption that all beings have the same fundamental rights.

Earth Law governs humans as co-equal parts with other Earth members due to the assumption that all beings have the same fundamental rights.[lxiii] This idea stems from a basic flow of logic: “Rights originate where existence originates. That which determines existence determines rights,” and all members come from the same place of existence, Mother Earth.[lxiv] Just as humans have rights based on our existence and being, so too does nature.

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.[lxv] As co-equal members, humans “have no right to prevent other components of the Earth community from fulfilling their evolutionary role.”[lxvi] Therefore, Earth Law establishes nature’s inherent rights to exist, thrive and evolve in environmental law and policy.

a. Earth Law as a rights-based movement (the necessity of conferring rights onto nature)

An Earth-rights movement is not merely an attempt to create new laws or change existing laws, it seeks to change our worldview and values.

As Christopher Stone writes, a rights-based movement is one that seeks to give rights to a new entity, those traditionally not seen to have any.[lxvii] Only when we confer rights onto a new member of the Earth community, human or non-human, can we guarantee it equal status as other right bearing entities.[lxviii]

Consider the Endangered Species Act.[lxix] Its goals and purposes make it seem like we have given species the right to life (i.e., not go extinct). However, when citizens bring suit for violations, they can only show “standing”[lxx] if they themselves have been injured and their injury can be redressed, with nothing to do with the injury to the species.

If animals and plants are given rights then they themselves will have standing, allowing citizens to speak on their behalf to ensure their rights are not violated. This may seem absurd or unthinkable, but throughout history, the extension of rights to a new entity has always seemed crazy to some (e.g., people of color, women and the LGBT community).[lxxi]

There will always be resistance to considering a historically viewed “object” as a co-equal part the Earth community.[lxxii] Therefore, the emerging Earth-rights movement seeks to illustrate nature as valued for itself, no longer viewed as an object or property, but as a subject with rights.[lxxiii]

b. Addressing the economic system

Another essential component of Earth Law is the qualitative, not quantitative, difference in rights. All rights are species specific (i.e., rivers have river rights, insects have insect rights and humans have human rights), but one is not superior to another. As a result, economic considerations (e.g., cost-benefit analysis) are left out of policy discussions. Unrestrained economic growth can be attributed to the present decline in our natural systems.[lxxiv]

Particularly, the use of cost-benefit analysis (CBA) reinforces our assumptions that nature is a resource to be controlled. CBA requires that we convert the benefits of nature (e.g., clean water, biodiversity) into dollars. It does not allow nature to be valued for itself. Earth law addresses this fundamental flaw by advancing economics in a way that improves relationships (i.e., ecological economics).

By changing the language of “natural capital” and “ecosystem services” to “natural worth” and “ecosystem integrity,” economics stops reinforcing nature as a resource and property. As a result, the economic system serves the law, not the other way around.

c. Earth Law Center Ocean Initiative: Earth Law in practice

The first step in applying the holistic principles of Earth Law to ocean health would be to create an Earth Law framework. Earth Law Center will be launching the final version at EarthX in April 2018, see here for the draft version.

An Earth Law approach aims to benefit the whole Earth community (i.e., humans, fish, water, birds): To ensure all waters are healthy and thriving; meaning water quality is such that:

a) All Earth members’ rights of water as a source of life is not violated;

b) Waters remain free of contamination, pollution and toxic or radioactive waste;

c) Biological, physical, chemical and ecological processes which rely on water continue without human disruption and;

d) Future generations are ensured the same inherent rights.[cvii]                               

States could include an Earth Law approach when revising or adopting water quality standards.[i] New standards are to be “based upon their uses” and “shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of this Act.”[ii] Water quality standards are based upon our use of water, underscoring the assumption that nature is an object.

Additionally, the use of “enhance” signifies that the water quality is already degraded and needs to be improved, and that pollution has already occurred. From an Earth Law perspective, such language is unnecessary because discharge would not occur at levels that would require enhancement (if discharge is allowed at all). This is because an Earth Law-based approach would create water quality standards based on the best and most recent science determining what keeps water and species healthy:

E.g., Water quality standards shall be based upon levels necessary to maintain a healthy and thriving body of water and to not only protect the health of the water, but the health of all Earth members whom depend on the water as their source of life.

Earth-based language in the Clean Water Act would ensure the rights of water, humans, wildlife, plants, and vital systems that rely on healthy water. Water has the right to be water; just like humans have the right to be human. Also, water has the right to continue its vital cycles and processes free from human disruptions; humans have the right to drink uncontaminated water and eat toxin-fee fish; fish have the right to reproduce and be healthy.

By incorporating nature’s rights into the Clean Water Act, discharge would be managed based on what allows the water and all organisms whom depend on the water to be healthy. Arguably, this would mean not allowing plastic discharges into waterways and would surely require the regulation of microplastic pollutants.

IV. Conclusion

The CWA set the goal of attaining water quality standards by 1983. This date is over 30 years past due.

Between 4.8 and 12.7 million metric tons of plastic waste entered the ocean in 2010.[i] As a result, plastic pollution is degrading water quality, affecting biodiversity[ii] and posing potential human health impacts.

The CWA set the goal of attaining water quality standards by 1983. This date is over 30 years past due. Of the water bodies assessed, 54.9% of rivers and streams, 69% of lakes, 78.4% of bays and estuaries and 88.9% of the coastal shoreline are listed as impaired nationally.[iii] The assumption that certain levels of pollution are acceptable as long as it is “permitted,” underscores the flaws of our current governance system.

By establishing legal systems that recognize that the health and welfare of humans is dependent on our interconnected relationships within the Earth community, systemic problems, such as plastic pollution will be addressed. It’s time to further evolve the protection of the ocean. Our lives, health and well-being depend on the health of the environment.

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[i] George Leonard & Andreas Merkl, Confronting Ocean Plastic Pollution at the Global Scale: New Insights and Strategic Opportunities, 1 (2015) (internal document).

[ii] Id. at 3.

[iii] The Declaration of The Global Plastics Associations for Solutions on Marine Litter, available at http://www.marinedebrissolutions.com/Declaration.

[iv] Jenna R. Jambeck et al., Plastic Waste Inputs from Land into the Ocean, 347 Science 768, 768 (2015) (Global plastic resin production increased by 620% from 1975 to 2012); Ocean Conservancy, Stemming the Tide: Land- based Strategies for a Plastic- Free Ocean, 4 (2015), available at http://www.oceanconservancy.org/our-work/marine-debris/mckinsey-report-files/full-report-stemming-the.pdf (With current production at 250 million tons this trend is expected to continue to 380 million tons produced by 2025).

[v] Leonard, supra at 3.

[vi] Ocean Conservancy, supra at 3 (2015).

[vii] For more information on the plastic products found in freshwater ecosystems see Martine Wagner et al., Microplastics in Freshwater Ecosystems: What We Know and What We Need to Know, 26 Environmental Sciences Europe 12, (2014).; Jessica Midbust et al., Reducing Plastic Debris in the Los Angeles and San Gabriel River Watersheds, Algalita Marine Research Institute (2014), available at http://www.bren.ucsb.edu/research/2014Group_Projects/documents/Bren-Group-Project-Thesis-Reducing-Plastic-Debris-in-the-Los-Angeles-and-San-Gabriel-River-W.pdf.; For more information on plastic products found in marine ecosystems see Chris Wilcox et al., Threat of Plastic Pollution to Seabirds is Global, Pervasive, and Increasing, PNAS Early Edition 1, (2015). Ocean Conservancy, supra.; Donald C. Baur & Suzanna Iudicello, Stemming the Tide of Marine Debris Pollution: Putting Domestic and International Control Authorities to Work, 17 Ecology L.Q. 71, (1990).; Jambeck, supra at 768.

[viii]José G.B. Derraik, The Pollution of the Marine Environment by Plastic Debris: A Review, 44 Mar. Pol. Bol. 842, 842 (2002).

[ix]Juliana A. Ivar do Sul & Monica F. Costa, The Present and Future of Microplastic Pollution in the Marine Environment, 185 Mar. Pol. Bul. 352, 352 (2014).; Ocean Conservancy, supra at 11.

[x] Matthew Cole et al., Microplastic as Contaminants in the Marine Environment: A Review, 62 Mar. Pol. Bul. 2588, 2589 (2011).

[xi] Ocean Conservancy, supra at 6.

[xii] F, S.C Gall & R.C. Thompson, The Impact of Debris on Marine Life, 92 Mar. Pol. Bul. 170, 170 (2015).

[xiii] Baur, supra at 82. (An estimated 50,000 fur seals from the Pribilof Islands population in the North Pacific Ocean die each year from entanglement). 

[xiv] Peter Kershaw et al., Plastic Debris in the Ocean, UNEP Year Book. 21, 26-28 (2011) (Studies link plastics to physiological stress, liver cancer, and endocrine dysfunction (female fertility and male reproductive tissues growth) in fish that ingest the plastic).

[xv] Murray R. Gregory, Environmental Implications of Plastic Debris in Marine Settings- Entanglement, Ingestion, Smothering, Hangers- on, Hitch- Hiking and Alien Invasions (2009), available at http://rstb.royalsocietypublishing.org/content/364/1526/2013.; Derraik, supra at 844.

(Plastic on the seafloor provides a barrier that inhibits gas exchange processes between the water and seafloor which leads to hypoxia (oxygen deficiency) and dead zones).

[xvi] Gregory, supra..; Derraik, supra at 844

(Plastic on the seafloor provides a barrier that inhibits gas exchange processes between the water and seafloor which leads to hypoxia (oxygen deficiency) and dead zones).; Cole, supra at 2592 (2011) (Plastics significantly alter the composition and properties of the seabed by increasing the permeability of sediment while decreasing its heat absorbance. Therefore sediment with plastics reaches lower maximal temperatures. This temperature difference may affect sex- determination in animal eggs, such as turtles).

[xvii] Ivar do Sul & Monica F. Costa, supra at 353.

[xviii] Id. at 353.

[xix] Cole, supra at 2589.

[xx] Kershaw, supra at 25-27.

[xxi] Ivar do Sul, supra at 353.; Chris Wilcox et al., Threat of Plastic Pollution to Seabirds is Global, Pervasive, and Increasing, PNAS Early Edition 1, 4 (2015).

[xxii] Derraik, supra at 846.

[xxiii] Charles James Moore, Synthetic Polymers in the Marine Environment: A Rapidly Increasing, Long- Term Threat, 108 Env. Res. 131, 133 (2008).

[xxiv] Baur, supra at 81.; UNEP & NOAA, The Honolulu Strategy: A Global Framework for Prevention and Management of Marine Debris, 9 (2011), available at http://www.unep.org/esm/Portals/50159/Honolulu%20Strategy%20Final.pdf.

[xxv] Moore, supra at 133..; Kershaw, supra at 28.

[xxvi] Baur, supra at 78.

[xxvii] United Nations, Resumed Review Conference on the Agreement Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 3 (2010), available at http://www.un.org/Depts/los/convention_agreements/reviewconf/FishStocks_EN_A.pdf.

[xxviii] Derraik, supra.

[xxix] UNEP & NOAA, supra at 8.

[xxx] Kershaw, supra at 28.

[xxxi] Ocean Conservancy, Trash Travels: From our Hands to the Sea, Around the Globe, and Through Time 2010, at 17, http://act.oceanconservancy.org/images/2010ICCReportRelease_pressPhotos/2010_ICC_Report.pdf.

[xxxii] Algalita, Credible Information and Statistics: The Magnitude of Plastic Debris (Dec. 1, 2015, 11:11 AM), http://www.algalita.org/credible-information-and-statistics/.

[xxxiii] Cole, supra at 2590.

[xxxiv] Baur, supra at 78..; Leonard, supra at 2.

[xxxv] Derraik, supra at 843.

[xxxvi] Ocean Conservancy, supra at 13.

[xxxvii] Id.

[xxxviii] Id. at 8.

[xxxix] Jambeck, supra at 770; Wilcox, supra at 1.

[xl] Jambeck, supra at 770.

[xli] Id. at 769.

[xlii] Baur, supra at 84.

[xliii] Earth law is an emerging body of law which establishes nature’s right to exist, thrive and evolve.

[xliv] Massachusetts v. EPA, 549 U.S. 497, 534, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (“EPA [cannot] avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time.”).

[xlv] 33 U.S.C. § 1311.; 40 CFR § 414.11.

[xlvi] § 1311(b, e); § 1314(b); § 1311(b)(2)(A).

[xlvii] § 1312(b)(2)(A); Natural Resources Defense Council v. U.S. EPA, 804 F.3d 149, 151 (2d Cir. R. 2015).

[xlviii] Organic Chemicals and Plastics and Synthetic Fibers Category Effluent Limitations Guidelines, Pretreatment Standards, and New Source Performance Standards, 52 FR 42522-01 (1987), WL 40 CFR 414 and 416.

[xlix] Moore, supra at 137.

[l] § 1311, 1342.

[li] U.S. Environmental Protection Agency, National Recommended Water Quality Criteria- Aquatic Life Criteria Table (Dec. 1, 2015, 3:36 PM), http://water.epa.gov/scitech/swguidance/standards/criteria/current/index.cfm.

[lii] § 1313(c).

[liii] § 1313.

[liv] § 1313(c).

[lv] Center for Biological Diversity, Petition for Water Quality Criteria for Plastic Pollution Under the Clean Water Act, 33 U.S.C. § 1314 (2012), available at http://www.biologicaldiversity.org/campaigns/ocean_plastics/pdfs/Petition_Plastic_WQC_08-22-2012.pdf.; U.S. Environmental Protection Agency, National Recommended Water Quality Criteria- Aquatic Life Criteria Table (Dec. 1, 2015, 3:36 PM), http://water.epa.gov/scitech/swguidance/standards/criteria/current/index.cfm. 

[lvi] § 1314(a)(1).

[lvii] U.S. Environmental Protection Agency, Marine Debris (Nov. 10, 2015, 3:30 PM), http://water.epa.gov/type/oceb/marinedebris/.

[lviii] U.S. Environmental Protection Agency, Marine Debris Laws and Regulations (Nov. 30, 2015, 2:49 PM), http://water.epa.gov/type/oceb/marinedebris/lawsregs.cfm.

[lix] U.S. Environmental Protection Agency, Marine Debris (Nov. 10, 2015, 3:30 PM), http://water.epa.gov/type/oceb/marinedebris/.

[lx] Known as section 303(d) listed waters.

[lxi] § 1313(d).

[lxii] § 1313(d).

[lxiii] Angela George and Linda L. Miller, Compliance with Trash TMDLs: Ten Years of Experience from Los Angeles County Unincorporated Areas, Department of Public Works (2014), available at https://www.casqa.org/sites/default/files/downloads/2-county_of_la_presentation-casqa_trash_webinar_7-29-14.pdf (Trash TMDL compliance in California generally involves the implementation of full capture or partial capture systems (combination of full capture and institutional measures), with 5 mm mesh screens. To date, California has spent approximately $7 million in installing these devices).

[lxiv] Moore, supra at 136 (according to the CA Regional Water Quality Control Board, Los Angeles Region).

[lxv] Id.

[lxvi] Resolution of the California Ocean Protection Council on Reducing and Preventing Marine Debris (2007), available at http://www.opc.ca.gov/webmaster/ftp/pdf/docs/Documents_Page/Resolutions/MarineDebris_Resolution.pdf.

[lxvii] Shavonne K. Stanek et al., Microplastic Contamination in San Francisco Bay (Nov. 30, 2015, 2:52 PM), http://www.sfei.org/sites/default/files/biblio_files/RMP15%20SOE%20Micoplastic%20Sutton%20FINAL%209-15%20%281%29.pdf.

[lxviii] U.S. Environmental Protection Agency, California Water Quality Assessment Report (Dec. 2, 2015, 9:24 AM), http://iaspub.epa.gov/tmdl_waters10/attains_state.control?p_state=CA, (California causes of impairment for 303(d) listed waters: 46 have been reported due to trash).

[lxix] U.S. Environmental Protection Agency, California Causes of Impairment for Reporting Year 2012 (Dec. 2, 2015, (9:25 AM), http://iaspub.epa.gov/tmdl_waters10/attains_state.control?p_state=CA#causes.

[lxx] U.S. Environmental Protection Agency, California Causes of Impairment for Reporting Year 2012 (Dec. 2, 2015, (9:25 AM), http://iaspub.epa.gov/tmdl_waters10/attains_state.control?p_state=CA#causes.

[lxxi] Wagner, supra at 12.; Kershaw, supra at 25-28.

[lxxii] Ivar do Sul & Monica F. Costa, supra at 359.

[lxxiii] Kershaw, supra at 25-28.

[lxxiv] 40 CFR § 401.15.

[lxxv] Wagner, supra at 17.

[lxxvi] U.S. Environmental Protection Agency, 2015 Multi- Sector General Permit for Stormwater Discharges Associated with Industrial Activity (MSGP)- Fact Sheet, 4 (2015), available at http://www2.epa.gov/sites/production/files/2015-10/documents/msgp2015_fs.pdf.

[lxxvii] Id.

[lxxviii] Id. at 7.

[lxxix] Id. at 4.

[lxxx] U.S. Environmental Protection Agency, 2015 Multi- Sector General Permit for Stormwater Discharges Associated with Industrial Activity (MSGP)- Fact Sheet, 5 (2015), available at http://www2.epa.gov/sites/production/files/2015-10/documents/msgp2015_fs.pdf.

[lxxxi] U.S. Environmental Protection Agency, National Pollutant Discharge Elimination System (NPDES) Multi- Sector general Permit for Stromwater Discharges Associated with Industrial Activity (MSGP), 4 (2015), available at http://www2.epa.gov/sites/production/files/2015-10/documents/msgp2015_finalpermit.pdf (Endangered and Threatened Species and Critical Habitat Protection. Coverage under this permit is available only if your stormwater discharges, allowable non-stormwater discharges, and stormwater discharge-related activities were the subject of an Endangered Species Act (ESA) consultation or an ESA section 10 permit, or if your stormwater discharges, allowable non-stormwater discharges, and stormwater discharge-related activities are not likely to adversely affect any species that are federally listed as endangered or threatened (“listed”) and are not likely to adversely affect habitat that is designated as “critical habitat” under the ESA. You must meet one of the criteria below, following the procedures in Appendix E).; For appendix E see: U.S. Environmental Protection Agency, Appendix E- Procedures Relating to Endangered Species Protection, (2015), available at http://www2.epa.gov/sites/production/files/2015-10/documents/msgp2015_appendixe-2.pdf.

[lxxxii] U.S. Environmental Protection Agency, 2015 Multi- Sector General Permit for Stormwater Discharges Associated with Industrial Activity (MSGP)- Fact Sheet, 5 (2015), available at http://www2.epa.gov/sites/production/files/2015-10/documents/msgp2015_fs.pdf.

[lxxxiii] U.S. Environmental Protection Agency, National Pollutant Discharge Elimination System (NPDES) Multi- Sector general Permit for Stormwater Discharges Associated with Industrial Activity (MSGP), 15-16 (2015), available at http://www2.epa.gov/sites/production/files/2015-10/documents/msgp2015_parts1-7.pdf.

[lxxxiv] Id (Section 2.1.2.2).

[lxxxv] Id (Section 2.1.2).

[lxxxvi] Moore, supra at 137.

[lxxxvii] J. M. Organ, Limitations on State Agency Authority to Adopt Environmental Standards More Stringent than Federal Standards: Policy Considerations and Interpretive Problems, 54 Md. L. Rev. 1373, 1374 (1995),

available at http://digitalcommons.law.umaryland.edu/mlr/vol54/iss4/9 (Federal Water Pollution Control Act 33 U.S.C. § 1370 (1972) (Authorizes States to adopt or enforce standards or limitations that are more, but not less, stringent than any effluent limitation, effluent standard, prohibition, pretreatment standard, or standard of performance in effect under the Clean Water Act).

[lxxxviii] § 13367 (a) (Preproduction plastic includes plastic resin pellets and powdered coloring for plastics).

[lxxxix] § 13367 (c).

[xc] § 13367.

[xci] § 13367 (d)(1).

[xcii] Id.; Earth Day Revisited, supra.

[xciii] Cormac Cullinan, Wild Law: A Manifesto for Earth Justice 44 (2 ed. 2011).

[xciv] Cormac Cullinan, Wild Law: A Manifesto for Earth Justice 44 (2 ed. 2011).

[xcv] Id. at 103.

[xcvi] Id. at 101.

[xcvii] Id. at 102.

[xcviii] Christopher D. Stone, Should Trees Have Standing?- Toward Legal Rights For Natural Objects, 450 Southern California Law Review 45, 455 1972).

[xcix] Cynthia Giagnocavo & Howard Goldstein, Law Reform or World Re-form: The Problem of Environmental Rights, 345 McGill Law Journal 35, 345 (1989-1990).

[c] Endangered Species Act, 16 U.S.C § 1531 (1973).

[ci] Sierra Club V. Morton, 405 U.S. 727 (1972) (dissenting opinion).

[cii] Stone, supra at 453.

[ciii] For examples see Stone, supra at 453- 454.

[civ] Stone, supra at 456.

[cv] Koons, supra at 357.

[cvi] 33 U.S.C. § 1251(a)(2).

[cvii] Paul Emond, Co-operation in Nature: A New Foundation for Environmental Law, 342 Osgoode Hall Law Journal 22, No.2, 347 (1984).

[cviii] § 1313.

[cix] § 1313(c)(2)(A).

[cx] § 1311(b, e); § 1314(b); § 1311(b)(2)(A).

[cxi] Jambeck, supra at 770.

[cxii] UNEP & NOAA, The Honolulu Strategy: A Global Framework for Prevention and Management of Marine Debris, 5 (2011), available at http://www.unep.org/esm/Portals/50159/Honolulu%20Strategy%20Final.pdf.   

[cxiii] U.S. Environmental Protection Agency, National Summary of State Information (Dec. 1, 2015, 3:34 PM), http://iaspub.epa.gov/tmdl_waters10/attains_nation_cy.control

 [HG1]Majorie? Marjorie?

 [HG2]Highlight with a pull out quote

Co-Violations: Where Both Human and Ocean Rights Violations Occur

By Michelle Bender

What are co-violations?

Human rights violations often accompany violations of nature. Earth Law Center’s 2016 updated report analyzed 200 case studies of these “co-violations.”

The information we collected showed that co-violations of nature’s rights and human rights are expanding everywhere, with the global south proportionately more affected. Thirty percent of the cases examined involved harm to indigenous peoples’ rights, despite indigenous people comprising only five percent of the population.[1]

Since then, a wave of new, increasingly violent cases of rights co-violations has swept across the globe. Many involve arrests and murders intended to silence frontline environmental defenders. These acts are rarely punished. Human victims are branded as enemies of “progress,” and environmental victims are viewed as commodities rather than as living beings.

Human trafficking, corruption, exploitation, and other illegal violations, combined with a lack of policing and proper enforcement of international laws, also represents the deplorable reality of much ocean activity.

The ever-growing presence of human rights violations at sea and the direct and indirect mistreatment of the ocean go hand in hand. Whether in the form of illegal fishing or the forced evacuation of low lying atoll nations affected by climate change, the seas and oceans overflow with crime.[2]

At Earth Law Center we know that legal rights for marine protected areas will help protect both nature and humans from co-violations of their rights at sea. A legal framework is urgently needed because marine communities face problems of such severity.

Disappearing fish means vanishing livelihoods and disrupted ecosystems

A legal framework for marine protected areas will help to protect fisheries from further damage. Fisheries contribute over $100 billion to the global economy[3] with an estimated $375 million coming from coral reefs.[4]

However, the Food and Agriculture Organization (FAO) has named over 70 percent of the world’s fish species as either fully exploited or depleted[5], and therefore unlikely to rebound to healthy populations.

Marine scientists found that 10 percent of large predatory fish, such as tuna, swordfish and marlin remain,[6] and 30 percent of shark species are threatened with extinction due to ‘finning’ for shark fin soup.[7] The decline is not only due to direct fishing pressures, but to human activities and exploitative pressures. The already decimated Atlantic Bluefin Tuna population is further struggling to rebuild due to the impacts of the 2010 BP oil spill.[8]

Dolphins and whales are also declining due to fishing bycatch, direct hunting, and bioaccumulation of toxic pollution such as the ubiquitous microplastics. Many whale species face imminent extinction. These include the North Atlantic right whale, with only about 300 individuals left, and the Western Pacific gray whale, estimated to have fewer than 100 individuals left.[9]

Similarly, about 27 percent of coral reefs (including half the Great Barrier Reef) have already been lost to ocean acidification and other climate factors such as warmer sea temperatures and sea level rise.[10]

Humans are at “high risk of causing . . . the next globally significant extinction event in the ocean” — and soon.[11] A legal framework for marine protected areas is needed now.

Slave labor and the seafood industry

A new scientific paper by Conservation International, the University of Washington and other partners calls on governments, businesses and the scientific community to take measurable steps to ensure seafood is sourced without harm to the environment or to people that work in the seafood industry.[12]

The paper, presented at the United Nations first Oceans Conference in New York in 2017 offers the first integrated approach to taking account of social issues and human rights violations in the seafood industry. The work responds to investigative reports by the Associated Press, the Guardian, The New York Times and other media outlets that uncovered human rights violations on fishing vessels.

The investigations tracked the widespread use of slave labor in Southeast Asia to produce seafood products, and chronicled the plight of fishermen tricked and trapped into working 22-hour days, often without pay, while enduring abuse. Subsequent investigations have documented the global extent of these abuses. [13]

Earth Law for marine protected areas will mean improved supervision of the seafood industry, making it more difficult for slave labor operators to evade detection.

Earth Law as an innovative supporter of human rights and nature’s rights at sea

Earth Law aims to shift our economic worldview toward one that respects rather than ignores the rights of nature and humans.

Recommendations made by Earth Law Center include, among others:

• Recognize in law and implement the fundamental rights of nature, including through U.N. General Assembly adoption of the Universal Declaration of the Rights of Mother Earth
• Prioritize cases before the International Criminal Court that involve co-violations of human rights and nature’s rights
• Formulate an international treaty to prevent and address human rights and nature’s rights violations by transnational and national business enterprises
• Provide emergency protection to environmental defenders at risk
• Adopt a system for receiving information and reporting on violations of the rights of nature and of environmental human rights defenders

Recent efforts in addressing co-violations of human rights and nature’s rights at sea

Local, national and international efforts and partnerships are working to address the growing number of co-violations of ocean and human rights. An Earth Law framework for marine protected areas will build on this momentum.

At the local level, communities are standing up for their right to a healthy environment and to defend the ocean. Communities and states are doing their part to address the flow of plastics into the ocean, with actions such as banning plastic bags, polystyrene and micro-beads.

California passed a law in 2013, and Washington in 2011, prohibiting the possession and sale of shark fins within the state.[14] And most recently, communities across the United States have passed resolutions banning oil drilling off their shores, including 33 communities on the Pacific Coast.[15]

At the national level, countries are increasing ocean conservation efforts, through laws designed to manage fisheries, address land-based pollution and protect large areas of jurisdictional waters through marine protected areas.

Iceland, recipient in 2010 of an award for responsible fishery practices, regulates the amount of fish that each fisherman can catch. Scientists re-evaluate these quotas after testing the biomass twice a year, and shut down fisheries if stocks fall.[16]

Countries are using marine protected areas as a tool to address the decline in marine biodiversity and loss of livelihoods. In late 2017, Mexico announced the expansion of Revillagigedo Archipelago National Park, the largest marine protected area in North America, protecting an area of ocean nearly four times the size of Switzerland.[17] Given the strictest level of protection in the country, the status prohibits fishing activities, mining, and oil extraction, and strictly regulates marine tourism activities.[18] 

At the international level, the United Nations attempted to prevent such violations through the Convention on the Law of The Sea (UNCLOS 1982), also known as the Law of the Sea Treaty (LOST). UNCLOS is the primary international agreement that regulates the rights and responsibilities of nations regarding their use and treatment of the world’s oceans.  The treaty that resulted from the convention attempts to create guidelines for all aspects of international waters, including business, diplomacy, mineral rights, pollution control, and fishing rights. However, this treaty, not ratified by the United States, is not in its essence an environmental treaty, but rather a constitution for how all activities should be carried out on the High Seas.

In 2015, the United Nations General Assembly unanimously agreed to launch a series of negotiations to develop an international treaty to protect marine biodiversity on the High Seas (areas beyond national jurisdiction- beyond 200 nautical miles from land). The fourth and final Preparatory meeting was held in 2017, with formal negotiations to begin in fall 2018.[19]

The draft primary objective of the new treaty is to “ensure the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction.” The treaty is expected to provide guidelines for cooperation to create regulations to protect marine biodiversity, including designating and implementing marine protected areas on the high seas.

A new approach for human and ocean rights management is needed

Despite the great steps taken to address the co-violations of human and ocean rights, ocean health continues to decline. To correct the destruction being caused, we must challenge the overarching legal and economic systems that reward environmental harm, and advance governance systems that maximize social and ecological well-being.

Earth Law Center proposes evolving the legal framework guiding our activities to include legal rights for the ocean. We have drafted the Earth Law Framework for Marine Protected Areas to serve as a tool for adopting a holistic and rights-based approach to ocean governance. The framework is currently being finalized with a working group under the International Union for the Conservation of Nature.

Experts, governments and organizations worldwide agree that such a shift to holism and alternative forms of management is needed.

For example:

• In 1982, the United Nations adopted the World Charter for Nature (111 votes for, 1 vote against, 18 abstentions).[20] The Charter adopts principles of conservation guiding human conduct to be reflected in the laws of each State.[21] It acknowledges that “mankind is a part of nature” and that “living in harmony with nature gives man the best opportunities” for living well. Noting that “every life form … warrant[s] respect regardless of its worth to man,” the charter declares, “Nature shall be respected and its essential processes shall not be impaired.” The Charter calls upon a moral code of conduct to guide human action in a way that treats other organisms with respect. Additionally, a primary function of the agreement is to recognize that man’s needs can only be met “by ensuring the proper functioning of natural systems.”

• The National Oceanic and Atmospheric Association (NOAA) calls upon the recognition of ecological interconnectedness and complexity as crucial to managing marine ecosystems.[22] Also found to be crucial to sustainable management, the need for holism is highlighted throughout NOAA’s work. In multiple reports, NOAA noted that a holistic approach is distinct from current approaches,[23] and to achieve the needed holism, we must reject and replace “many (but not all) of the processes upon which conventional management depends.”[24]

• In providing technical guidelines for responsible fisheries, the international Food and Agriculture Organization recognizes the need to improve current fisheries management,[25] highlighting the use of marine protected areas and a holistic approach to do so.[26] However, FAO notes that marine protected areas must merge two converging paradigms —ecosystem management and fisheries management.[27] Sustainable development can be achieved if the two “converge towards a more holistic approach that balances both human well-being and ecological well-being.”[28]

Accordingly, the Earth Law Framework for Marine Protected Areas, serves as not only as a guideline for adopting holistic and rights-based governance towards protected areas, but also ocean law and policy in general. At its foundation is the recognition and respect for the rights and values of the ocean. By acknowledging certain rights the ocean is entitled to, human decisions are then required to balance human rights and needs with those of the ocean, addressing co-violations of human and ocean rights.

After months of research and writing in 2017, the framework underwent an open call for inputs to gain recommendations from experts internationally. The final version of the framework is due to launch this Earth Day, April 22nd. ELC will also be creating a working group within the International Union for the Conservation of Nature, the largest conservation organization in the world, to receive final revisions necessary for IUCN endorsement and dissemination.

What you can do to help

At this critical juncture in our planet’s future, we have the opportunity to change the way we treat the ocean.

• We can ensure national ocean policies recognize the ocean’s rights to life, well-being, biodiversity and restoration. Read the framework here.
• We can pass local ordinances establishing the rights of coastal communities to a healthy environment and to defend nature. Launch an initiative here.
• We can ensure fishery management is done on a systems and precautionary basis. Volunteer with ELC here.
• And we can encourage our representatives to promote rights of nature in the UN International Treaty for Biodiversity on the High Seas. Donate here.

---

[1] https://static1.squarespace.com/static/55914fd1e4b01fb0b851a814/t/586d58b8725e2585df6a935a/1483561276729/ELC+Co-Violations+Report+-+2016+Update+%28Print%29.pdf

[2] https://www.oceanfdn.org/resources/human-rights-and-ocean

[3]    http://www.un.org/events/tenstories/06/story.asp?storyID=800 

[4]    Sea Technology

[5]    http://www.un.org/events/tenstories/06/story.asp?storyID=800

[6] Ransom A. Myers & Boris Worm, “Rapid Worldwide Depletion of Predatory Fish Communities,” 423 Nature 280-283 (May 15, 2003), at: www.nature.com/nature/journal/v423/n6937/abs/nature01610.html.

[7] http://content.time.com/time/magazine/article/0,9171,2021071,00.html 

[8] https://scpnt.stanford.edu/bp-oil-spill-bluefin-tuna

[9] Russell McLendon, “10 of the Most Endangered Whales on Earth,” Mother Nature Network (June 23, 2010), at: www.mnn.com/earth-matters/animals/stories/10-of-the-most-endangered-whales-on-earth.

[10] World Wildlife Fund, “Fast Facts: Why Coral Reefs are Important to People,” at: www.wwf.panda.org/about_ our_earth/blue_planet/coasts/coral_reefs/coral_facts.

[11] A.D. Rogers, & D.d’A Laffoley, International Earth System Expert Workshop on Ocean Stresses and Impacts, Summary Report, p. 7 (IPSO Oxford 2011), at: http://www.stateoftheocean.org/wp-content/uploads/2015/10/2011-Summary-report_workshop-on-stresses-and-impacts.pdf. See also International Programme on the State of the Ocean, Combined Research Papers, at: http://www.stateoftheocean.org/ wp-content/uploads/2015/10/2011-Summary-report_workshop-on-stresses-and-impacts.pdf.

[12] https://www.seafoodsource.com/news/environment-sustainability/social-and-human-rights-abuses-on-agenda-at-seaweb-un-oceans-conference

[13] https://www.seafoodsource.com/news/environment-sustainability/social-and-human-rights-abuses-on-agenda-at-seaweb-un-oceans-conference

[14] http://www.laweekly.com/news/shark-fin-soup-could-be-banned-in-the-us-through-proposed-legislation-8248185

[15] http://www.biologicaldiversity.org/campaigns/stopping_trumps_assault_on_ca_coast/#list

[16] http://oceaneos.org/sustainable-fishery/countries-where-the-fisheries-are-sustainable/

[17] https://www.virgin.com/richard-branson/mexico-creates-largest-marine-protected-area-north-america

[18] https://mpanews.openchannels.org/news/mpa-news/mexico-creates-north-americas-largest-fully-protected-mpa

[19] http://www.pewtrusts.org/~/media/assets/2017/03/road-to-high-seas-conservation.pdf

[20] Tim Boucher, Plants & Privacy, Medium, Feb. 4, 2016, available at: https://medium.com/@timboucher/world-charter-for-nature-1982-93cc3d41ff79.

[21] World Charter for Nature, U.N. Doc. A/37/51 (1982), available at: http://www.un.org/documents/ga/res/37/a37r007.htm (World Charter). 

[22] Id. at 2.

[23] Charles W. Fowler, Andrea Belgrano, and Michele Casini, Holistic Fisheries Management: Combining Macroecology, Ecology, and Evolutionary Biology, Marine Fisheries Review (Scientific Publications Office, National Marine Fisheries Service, NOAA), 75 (1–2), 2013, p. 1, available at: http://aquaticcommons.org/14550/1/mfr751-21.pdf.

[24] Fowler, C. W., R. D. Redekopp, V. Vissar, and J. Oppenheimer, Pattern-based control rules for fisheries management. U.S. Dep. Commer., NOAA Tech. Memo. NMFS-AFSC-268, 2014, p. 2, available at:https://www.afsc.noaa.gov/publications/afsc-tm/noaa-tm-afsc-268.pdf. 

[25] Fisheries Management-2. The Ecosystem Approach to Fisheries, Food and Agriculture Organization of the United Nations, 2003, available at: http://www.fao.org/3/a-y4470e.html.

[26] Fisheries management. 4. Marine protected areas and fisheries. FAO Technical Guidelines for Responsible Fisheries. No. 4, Suppl. 4. Rome, FAO, 2011, available at: http://www.fao.org/docrep/015/i2090e/i2090e00.htm.

[27] Fisheries Management-2. The Ecosystem Approach to Fisheries, Food and Agriculture Organization of the United Nations, 2003, available at: http://www.fao.org/3/a-y4470e.html.

[28] Id.

Why Earth Law Will Be Good for Puget Sound in Washington State, USA

“There is an ethical consideration that all animals have a fundamental right to healthy habitat… [that] underpins for many the drive for whale conservation and marine protected areas.” — Erich Hoyt

By Darlene Lee and Michelle Bender

What is Puget Sound?

Puget Sound is a transition zone between river and maritime environments. With its complex system of interconnected marine waterways and basins,[i] it is the third largest estuary in the United States, after Chesapeake Bay in Maryland and Virginia, and San Francisco Bay in northern California.

In 2009, the collective waters of Puget Sound, the Strait of Juan de Fuca, and the Strait of Georgia were named the Salish Sea by the United States Board on Geographic Names. Sometimes "Puget Sound" and "Puget Sound and adjacent waters" refer to Puget Sound proper together with the waters to the north, including Bellingham Bay and the San Juan Islands region.

Marine Protected Areas in Puget Sound

Marine Protected Areas (MPAs) have existed in Puget Sound since the early 1900s, although most were established after the 1960s. By 1998, at least 102 intertidal and subtidal protected areas existed in Puget Sound; five managed by at least 12 different agencies or organizations at the local, county, State and Federal level.

A 2009 inventory found a total of 127 MPAs in Washington State, of which 16 percent were no-take areas in which all resource harvest was prohibited. In addition to areas restricting harvest, some MPAs involve habitat protections or restrict non-harvest activities such as vessel anchoring or recreational access. These protected areas account for nearly 600 miles of Washington State’s shoreline; 24 miles are within the national MPA system[HG1] .[ii]

What Challenges Does Puget Sound Face?

From the 1960s onwards, Puget Sound suffered serious pollution. Industrial pipes pumped toxic chemicals into the water; dams blocked the way for salmon; natural resources were overharvested. Those problems still persist, but ecosystem management in Puget Sound has significantly advanced since the 1970s and 1980s.

Scientists now recognize that what happens on the land is intricately tied to the health of the water. We face climate change and unprecedented population growth. Scientists have identified thousands of different human-caused pressures on the ecosystem. New threats include stormwater, emerging contaminants and widespread declines in species and habitats.[iii]

Approximately 23 percent of Puget Sound Basin forestland has moved to human uses, including agriculture and urban lands. Tidal marsh and other river estuarine ecosystem types declined by 80 percent in the last 150 years through a process of diking and draining.[iv]

In the last 100 years, more than 60 percent of Washington State’s old-growth forest was harvested. Much of the remaining old-growth remnants are limited to relatively high elevation public land.

Killer Whales in the Puget Sound

Southern Resident killer whales range in the Salish Sea and along the West Coast. They depend heavily on Chinook salmon for food. In the late-1990s, Southern Resident killer whales experienced a dramatic decline. A precarious food supply, threats from pollution, vessel traffic, and noise continue to jeopardize their survival. As a result, they are federally listed as endangered. [v]

In 2009, the National Oceanic and Atmospheric Administration (NOAA) Fisheries considered a protection zone as part of a package of vessel regulations to protect these whales. The agency adopted vessel traffic regulations in 2011, requiring that boats stay 200 yards from the whales and out of their path, but it did not finalize a protected zone due to strong opposition at the time.[vi]

The Southern Resident killer whale population in Puget Sound is actually a large extended family, or clan, comprised of three pods: J, K, and L pods. They are visible throughout the year in Puget Sound, but are most often seen in the summer, especially in Haro Strait west of San Juan Island, the Strait of Juan de Fuca, and in the Strait of Georgia near the Fraser River.

Threats to Southern Resident killer whales include contaminants, prey availability, vessels, and noise pollution. Additional human activities, such as underwater military activities, have been identified as potential threats for killer whales, particularly on the outer coast. Their small population size (76 individuals at latest count) and social structure put them at risk for a catastrophic event, such as an oil spill, or a disease outbreak, that could impact the entire population.[vii]

The National Marine Fisheries Service described Southern Resident killer whales as one of eight species most at risk of extinction in its 2015 report to Congress, yet stopped short of expanding critical habitat protections for Puget Sound’s orca whale population. [viii]

The Orca Relief Citizens’ Alliance, Center for Biological Diversity, and Project Seawolf petitioned NOAA Fisheries in November 2016 to establish a protected zone free of motorized boat traffic to promote recovery of Southern Residents. The NOAA Fisheries sought public comments on a petition in January 2018 calling for a whale protection zone for highly endangered Southern Resident killer whales on the west side of Washington’s San Juan Island. [ix]

NOAA Fisheries recently completed a status review for Southern Residents under the Endangered Species Act. Although the review documented progress in understanding and addressing threats to the whales, it concluded that the Southern Resident population remains at high risk of extinction and should remain listed as endangered.  Population modeling by NOAA Fisheries’ Northwest Fisheries Science Center suggests the possibility of further declines in Southern Resident numbers, with recovery actions needed to reverse the trend.[x]

How Does Earth Law Differ from Existing Environmental Protections?

In most countries, nature has the legal status of property. In contrast, Earth Law argues that nature has inherent rights, and legally should have the same protection as people and corporations. Earth law enables the defense of the environment in court—not only for the benefit of people, but for the sake of nature itself.

Earth Law argues that humans and nature are not at odds, but are deeply connected and dependent on one another. Formal recognition of nature’s inherent right to thrive will enable the restoration of balance in the global environment.

Our planet’s health depends on this paradigm shift in law, which represents the next evolution in environmental protection and conservation.

How Earth Law Can Bolster the Marine Mammal Protection Act

The Marine Mammal Protection Act (MMPA-1972) places a moratorium on the “taking” (hunting, harassing, capturing, or killing) of marine mammals in US waters.

The MMPA was enacted in response to increasing concern among scientists and the public that some species or stocks of marine mammals may be in danger of extinction or depletion caused by human activities.

The MMPA was the first legislation in the US to mandate an ecosystem-based approach – an integrated management approach that recognizes the full array of interactions within an ecosystem (including humans) rather than considering single issues, species, or ecosystem services in isolation.[xi]

Its primary objective is to maintain the health and stability of marine ecosystems by (i) preventing marine mammal species and population stocks from declining beyond the point where they cease to be significant functioning elements of their ecosystem, and (ii) restoring diminished species and stocks to their “optimum sustainable populations.” [xii] [xiii]

Earth Law can further the effectiveness of the MMPA. Earth Law gives formal recognition to the rights of marine mammals.

Recognizing the Rights of Marine Mammals Means:[xiv]

• Regulating tourism and shipping traffic to have minimal effect on these species
• Prohibiting extraction or take in their critical habitat— no incidental take permits (if toxic releases damage the whale-supporting ecosystem, it will be in the province of NOAA to refer the matter to the Department of Justice to litigate”[xv])
• Maintaining population levels according to their natural capacity— rather than as “functioning elements”
• Making illegal activities that market or commercialize these species

Additionally, legal rights will affect the enforcement process by giving the marine mammals standing to sue; furthering their protection and effecting protective and restorative activities for species.

For example, the MMPA strictly prohibits the taking of marine mammals within national waters except when permissible by permit. It provides that “any party opposed to such permit, may obtain judicial review of the terms and conditions of any permit issued by the Secretary...”[xvi]

With Earth Law in place in a marine protected area, the marine mammals could be considered a party opposed to such a permit, and humans could express this interest on their behalf.[xvii]

Case Study: Whale and Dolphin Sanctuary in Uruguay

The Whale and Dolphin Sanctuary in Uruguay provides an example of how Earth Law can benefit Puget Sound. Established as a marine protected area in 2013, the Sanctuary needed a management plan to enforce the legislated protections.

Uruguay’s largest multi-use protected area, the Whale and Dolphin Sanctuary was established in 2013. The campaign for legal rights has been promoted alongside the #OceanoSanos (#HealthyOceans) campaign that seeks to protect the country’s marine environment by promoting responsible fisheries and preventing illegal, unreported and unregulated (IUU) fishing.

Organización para la Conservación de Cetaceos (OCC) partnered with Earth Law Center to draft a governance plan to ensure enforcement of rights and make whale and dolphin protection a legal responsibility. This will include:

• Creating a sustainable relationship with the ecosystem and species within it.
• Making whale and dolphin protection a legal responsibility; notably the Southern Right Whale and the Franciscana dolphin, an IUCN Red List Species.
• Reviewing activities such as port construction, fishing and vessel traffic for their impact on the sustainability of the Sanctuary. 

What Would Earth Law for the Puget Sound Look Like?

Incorporating Earth Law into existing and new marine protected area governance can enhance and restore both the ecosystem of the Puget Sound as well as preventing the extinction of the Southern Resident whales.

Creating a protected area, including rights for the Southern Resident whales and the Puget Sound, means directly addressing threats including; pollution, habitat destruction, biodiversity loss, vessel traffic and noise, and oil and mineral extraction.[xviii]

There exist multiple pathways for rights of nature to protect the Puget Sound and its species.

1. Pass a law recognizing the Southern Resident whales as legal entities, with all the rights of a legal person. Action to protect the three pods of the Southern Resident whales could address the high pollution of Puget Sound and provide legal recourse to stop commercial discharges.
2. Incorporate rights of nature into existing marine protected area management plans.
3. Create new marine protected areas in the Puget Sound, forming an extensive network that represents all ecosystems and critical habitats.
4. Designate the whole Puget Sound as a marine protected area with legal rights also protecting the species within the complex estuarine ecosystem.
5. Incorporate rights of nature into the proposed whale protection zone, through its originating statute and management. 

An Earth Law Framework in the Puget Sound would recommend (among others):

• Highly protecting core areas in the form of “no-take” for living and nonliving components
• Banning any industrial discharge and oil or mineral extraction[xix]
• Shifting our approach to aim for populations and ecosystems that are thriving and healthy, rather than focusing on preventing degradation and extinction
• Preventing the further decline of threatened and endangered species with swift restorative action and the strict prohibition of activities contributing to their decline
• Adopting a holistic, rights-based and systems-approach to managing human activities, taking into account the clear land-sea connection.

Earth Law offers a new solution to protect and sustain the Puget Sound—one that balances human and environmental needs in a way that allows all species to coexist in harmony.

What Can I Do About Getting Rights Recognition for the Puget Sound?

Read more here

Sign up for ELC’s monthly newsletter here

Volunteer for this initiative here

Donate to the cause here

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[i] https://en.wikipedia.org/wiki/Puget_Sound

[ii] https://www.eopugetsound.org/articles/marine-protected-areas-puget-sound

[iii] https://www.eopugetsound.org/blogs/identifying-greatest-threats-puget-sound

[iv] https://pubs.usgs.gov/sir/2010/5254/pdf/sir20105254_chap1.pdf

[v] http://www.psp.wa.gov/vitalsigns/in-number-of-southern-resident-killer-whales.php

[vi] http://www.westcoast.fisheries.noaa.gov/stories/2017/11_01122017_srkw_protection_zone_petition.html

[vii] http://www.psp.wa.gov/vitalsigns/in-number-of-southern-resident-killer-whales.php

[viii] https://www.biologicaldiversity.org/news/press_releases/2017/orca-09-25-2017.php

[ix] http://www.westcoast.fisheries.noaa.gov/stories/2017/11_01122017_srkw_protection_zone_petition.html

[x] http://www.westcoast.fisheries.noaa.gov/stories/2017/11_01122017_srkw_protection_zone_petition.html

[xi] “Marine Mammal Protection Act,” Marine Mammal Commission, 2017, https://www.mmc.gov/about-the-commission/our-mission/marine-mammal-protection-act/.

[xii] “Optimum sustainable populations” replaced “maximum sustainable yield,” which sought ensure that species replenish themselves for an adequate harvesting subsequent years, as the grounding principle of US resource management approach.

[xiii] “Marine Mammal Protection Act Fact Sheet,” National Oceanic and Atmospheric Administration, updated May 10, 2016, http://www.nmfs.noaa.gov/pr/laws/mmpa/.

[xiv] Source: Adapted from Hoyt (2011), Whale and Dolphin Conservation, ABC Science and One Green Planet

[xv] Trees, supra at 57.

[xvi] 16 U.S.C. 1374 § 104(d)(6).

[xvii] Trees, supra at 37.

[xviii] Environment Guide, Benefits of marine protected areas (Sept. 1, 2017), http://www.environmentguide.org.nz/issues/marine/marine-protected-areas/; OECD, supra.

[xix] Hoyt, supra at 51-54.

 [HG1]Is it better to say federal MPA system?

Earth Law Center’s Fight to Return Rights to the Ocean

By JJ Lee

The rise of the conservation movement in the 1970s heralded an era of awareness of the dangers of exhausting the ecological limits. Since then, activism by citizens around the world has carried the fight against climate change to the forefront of global attention.

Yet despite the progress, efforts have not reversed the damage to Nature. A failure to recognize and address climate change is symptomatic of a greater problem: the treatment of the Earth as an endless resource for human use rather than as a rights-bearing entity. To address this root cause of continued environmental degradation, Earth Law Center works to transform the law to recognize and protect nature’s inherent rights to exist, thrive and evolve.

Why does the ocean need rights?

Overfishing, climate change, and plastic pollution[i] have left the ocean in a rapid state of decline and in imminent danger of losing its capacity to support life.[ii] Society uses marine environments in many ways including fishing, tourism, aquaculture, and energy production.

Current legal structures to regulate these activities view the ocean as a resource, and have established loopholes and permits that allow for actions that choose economic benefit over ecosystem health and stability. As a result, 60 percent of the world’s major marine ecosystems are degraded or used unsustainably, leading to a decline in marine biodiversity of 49 percent, roughly half of what it was 50 years ago.[iii]

Our relationship with the ocean is unsustainable. With the cumulative economic impact of poor ocean management practices costing USD 200 billion per year (UNDP, 2012), there exists an opportunity to adjust our practices to improve the effectiveness of regulations.

We need to level the playing field, and balance human wants and needs with that of the ocean. Sustainable growth and livelihoods can only occur through sustained and restored ocean health. Rights for the ocean is the next step in evolving marine protection in order for humans to truly live sustainably within the ocean’s and planet’s limits.

Rights for the Ocean Campaign Launched

In Spring 2017, ELC launched the Rights of the Ocean Initiative to promote an Earth-centered paradigm in ocean governance. The initiative sums up the growing trend worldwide towards recognizing and protecting Nature’s inherent rights to be healthy as the best solution to today’s pressing environmental challenges.

Led by Ocean Rights Manager Michelle Bender, the Ocean team at ELC work to support the global movement for the worldwide legal recognition of the rights of the ocean. The Ocean team support the movement by raising awareness, educating others, and carrying out analytical research.

Early efforts engaged the UN General Assembly on Harmony with Nature recommendation for all parties to develop a new legal and policy framework for the implementation of the Rights of Nature.

The initiative connected and unified the work and missions of organizations worldwide. ELC shared the initiative with NGOs accredited to the conference, International Union for Conservation of Nature (IUCN) members, UN country delegates and a comprehensive list of ocean-related organizations. Approximately 25 percent of the organizations that received it, responded to ELC’s email. Initial sign-ons and enthusiastic support from organizations such as Mission Blue, Ocean Care, the Great Whale Conservancy and Organización para la Conservación de Cetaceos eventually grew into a coalition of over 60 signatory organizations from 32 nations.

ELC recognized the opportunity and need to raise further awareness and build a network of support for the new paradigm at the highly anticipated UN Ocean Conference in June 2017. Executive Director Darlene Lee presented the “Incorporation of the Inherent Rights of the Ocean into the Ocean Conference 2017 ‘Call for Action’” on behalf of its signatories, supporters and members.

Says signer Roxana Schteinbarg from the Instituto de Conservación de Ballenas, “Thank you for this incredible initiative!  We hear all the time great speeches talking about sustainable development but putting priority on human needs. This is not correct and it is the time to change our perspective and consider first the need of the planet.”

Since the Ocean Conference, ELC has partnered with organizations internationally to spur the creation of rights-based marine protected areas in various nations. ELC has also produced the Earth Law Framework for the Marine Protected Areas after recognizing that future endeavors around the world will benefit from sharing a set of guidelines developed by coordinated expert analysis.

MPAs can contribute to reducing poverty, building food security, creating employment and protecting coastal communities[iv]

• Expanding the coverage of no-take MPAs to 10 percent and 30 percent  shows benefits exceed the costs, with ratios in the range of 3.17 – 19.77[v]; from the most conservative estimate of US$490 billion and 150,000 full-time jobs in MPA management, to the most optimistic estimate of US$920 billion and over 180,000 jobs by 2050.[vi]
• Rights of oceans makes it a legal responsibility to adopt sustainable practices into ocean-dependent industries and allow for continued, long-term ecosystem and economic stability and growth.

Creating the Earth Law Framework for Marine Protected Areas

ELC volunteers conducted over 500 hours of  research and analysis to create a framework that builds upon the one initiated by the IUCN, NOAA, and Rights of Nature precedents.

The ELC largely focused on Step Two, “Developing the legal framework,”of the IUCN’s Guidelines for Marine Protected Areas,[vii] a document that provides instructions for countries on various actions needed to establish an effective system of marine protected areas. The Framework also adapts and incorporates the key components of the MPA creation and implementation in national systems from the “Framework for the National System of Marine Protected Areas of the United States of America”[viii] by NOAA. Most importantly, the Rights of Nature precedents that give ecosystems legal identity served as a key point of analysis in the development of the Framework. The ecosystems examined include the Galapagos Islands of Ecuador, the Whanganui River in New Zealand and the Te Urewera National Park in New Zealand, which all have originating statutes that accord them rights as well as subsequent management plans that outline implementation.

Through the process, ELC learned that language is key. A single word can make a decisive difference between success and failure. For example, though the IUCN Guidelines intend for ecosystem protection, its recommendations maintain a human-centered approach, leaving room for interpretation. The IUCN defines the goal of MPA networks as “provid[ing] for protection, restoration, wise use, understanding and enjoyment of the marine heritage of the world in perpetuity [….] in accordance with the principles of the World Conservation Strategy of human activities that use or affect the marine environment” — “wise use” meaning, “for the use of people on an ecologically sustainable basis” in consideration of the continued welfare of people affected by the creation of the MPA.[ix]  ELC believes “wise use” should also include the use of the ecosystem by other species.

With the ultimate goal of becoming a guideline for implementing an Earth-centered approach to marine protected area governance, the draft includes a collaborative “call for inputs” which aims to collect best practices and recommendations as well as to achieve a global consensus for advancing effective policies.

ELC launched the draft of the Framework at the Fourth International Marine Protected Areas Congress in September, where it connected with a host of organizations, including the IUCN, the World Wildlife Federation, Conservation International, the Conservation Land Trust, Greenpeace, Fundacion Meri, Costa Humboldt, Fiscalia Del Medio Ambiente, and the Forum for the Conservation of the Patagonian Sea and Areas of Influence.

Mission Blue, an alliance of more than 180 respected ocean conservation organizations, multinational corporations, and individual scientific teams and NGOs around the world, working to build public support for ocean protection, is one of 63 organizations that supported ELC’s UN Ocean Conference Initiative and which now endorses the Earth Law Framework for Marine Protected Areas. The Framework has since been sent to over 1000 experts and organizations globally, including experts from the UN Harmony with Nature Initiative, NOAA and organizations such as Oceana and the Ocean Conservancy, for recommendations and further improvements.

ELC has received valuable input. Advice received includes the need to consult and integrate the recommendations of indigenous leaders as well as to make clear that the Framework balances the rights of humans with that of Nature. Other intriguing responses suggest an integrated approach that includes “CSOs, traditional institutions, research, academia and policy makers,” the creation of a UN-specific group focused on commitment to the seas, an emphasis on education for fishermen on the benefits of MPAs, and the implementation of a business sponsorship program for “Adopt an MPA.” As one submission highlighted, corporate rights hold a key part of the solution in changing systemic values towards the environment:

“the bottom line is corporate structure where company law states benefit to the shareholders is primary. Company law needs to state that a company has a primary duty to preserve the environment, and secondary duty to produce money for shareholders.”

 What’s next for the recognition of ocean rights

The fight is far from over!

The new ocean governance requires overcoming the weaknesses of the current regime. These weaknesses include the lack of information sharing, transparency, accountability, and compliance reporting mechanisms as well the systematic integration of regional and national conservation arrangements. Insufficient international regulatory authority remains the most challenging priority in securing a thriving future for the ocean.

The universal adoption and implementation of a rights-based legal structure offers a unique long-term solution for the many challenges the ocean faces. Only a framework that recognizes and protects the ocean and all of its ecosystems as living entities addressess the root causes. These inalienable rights include: right to life, freedom from abuse, and ability to maintain vital processes necessary for supporting life.

Achieving universal adoption and effective implementation of a rights-based ocean governance framework will involve the integrated effort and coordination of all levels of government as well as nongovernmental partners, including the private sector, local communities and stakeholders, NGOs, scientific and academic experts, and most importantly, private citizens. It is important to  move beyond top down decision-making.

Marine Protected Areas in particular require a holistic approach that integrates ecological, economic, social, and political considerations with an emphasis on participatory decision-making from an early stage and science-based management through open dialogue. Proper legislation through political effort, adequate financial and human resources, institutional capacity, sustained public engagement, resource management and marine spatial planning, collaborative opportunities and initiatives, effective monitoring and reporting systems, and the creation of shared social norms are just a few examples of the many actions necessary for the implementation of effective marine protected areas.

Growing global momentum for rights of nature

In 2008, Ecuador became the first nation to recognize the Rights of Nature in its Constitution, followed by Bolivia in 2011. Over 40 municipalities in the US have passed rights of nature ordinances, including Santa Monica which ELC led. The Whanganui River in New Zealand and Atrato River in Colombia enjoy legal rights recognition today, and in 2012, the Supreme Court of India recognized the Constitutional duty of citizens to protect the environment and ruled that human interests do not take automatic precedence over that of nonhumans. 

Specifically pertaining to the rights of nature as applied to marine protected areas, Ecuador and the Law of the Galapagos represents the growing momentum of the Earth Law Framework. The 2014 Management Plan for the Protected Areas of Galapagos for Good Living recognizes the connection between development and conservation, human dependence on natural ecosystems, and the limits of the marine ecosystem that cannot be breached. The Special Law limits economic activities to permanent residents and maintains minimal human interference in the ecosystems. Similar efforts in New Zealand led to the Sea Change Marine Spatial Plan, which proposes the recognition of the rights of Hauraki Gulf Marine Park and a holistic and integrative approach to improving the Gulf ecosystem, health, and the wellbeing of those dependent on it.

These victories would not have been possible without individuals combining their collective power to propel forward critical change.

We need to uphold the rights of the ocean

The terrible consequences of continued harm to the environment underlines the interconnectedness of all life on Earth. We need your help in driving forward a new normative paradigm of conservation ethics and actions for a healthy ocean, now and for future generations. No contribution is too small when something as fundamental to our own survival as our spaceship Earth is at stake. There are many ways to get involved - from engaging your local government in grassroots progress to joining international organizations leading the effort to save the ocean at the forefront of policy-making.

The adoption of universal rights for nature or new rights-based ocean governance is only half the battle. Ensuring that such measures remain protected and permanent, as well as adaptive to the evolving demands of the needs of the ocean, requires sustained engagement and informed action.

Here’s how you can help the ocean gain legal rights recognition

• Write to Congress or specific members (Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard, among others) about your support for specific laws (https://www.congress.gov/bill/115th-congress/senate-bill/31/all-info)
• Congressional Ocean Advocates may be one resource for that particular method: https://www.oceanchampions.org/congressional-champions/
• Or https://sanctuaries.noaa.gov/involved/, which has some specific instructions on how you can get involved

The enthusiasm and support that the Rights of the Ocean Initiative has garnered since its inception indicate that the tide may finally be turning, and the Earth Law Center stands steadfast in its fight to spread further awareness of and education on ocean rights, with the goal of seeing its effective and long-term actualization.

To accelerate the premature termination of nature, humanity ensures its own rapid and untimely end. The Earth as a living, breathing entity that requires the protection and stewardship of humankind who reap its bounty is not a revolutionary concept, but one that has been largely forgotten. An eco-centric approach that returns fundamental rights to nature is the next bold step that we must make to achieve sustained prosperity for all whom equally draw and create life from it.

To weigh in on the Framework or to participate in the Rights of the Ocean Initiative, visit the online form www.earthlawcenter.org/oceanrights or email Michelle Bender at mbender@earthlaw.org before December 15th.

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[i] George Leonard & Andreas Merkl, Confronting Ocean Plastic Pollution at the Global Scale: New Insights and Strategic Opportunities, 1 (2015) (internal document).

[ii] Global Issues, Declining Ocean Biodiveristy, (Sept. 1, 2017, 7:09pm), http://www.globalissues.org/article/171/loss-of-biodiversity-and-extinctions#DecliningOceanBiodiversity.   

[iii] Living Blue Planet Index, World Wildlife Fund, Living Planet Report, 2014, available at: http://www.livingplanetindex.org/projects?main_page_project=BluePlanetReport&home_flag=1. 

[iv] https://www.earthlawcenter.org/new-blog-1/2017/8/ecosystem-based-approach-to-mpas

[v] https://www.oecd.org/environment/resources/Marine-Protected-Areas-Policy-Highlights.pdf

[vi] http://ocean.panda.org/media/WWF_Marine_Protected_Areas_LR_SP.pdf

[vii] https://www.iucn.org/sites/dev/files/import/downloads/mpaguid.pdf

[viii] https://nmsmarineprotectedareas.blob.core.windows.net/marineprotectedareas-prod/media/archive/nationalsystem/framework/final-mpa-framework-0315.pdf

[ix] IUCN MPA Guidelines, supra at xx

How Earth Law Can Help Cetaceans in Uruguay

An Interview with Rodrigo García Píngaro

By Madeline Bol

The new partnership between Earth Law Center (ELC) and Organización para la Conservación de Ceteaceos (OCC) aims to improve the effectiveness and implementation of marine conservation. To explore what this means, ELC spoke with Rodrigo García Píngaro, OCC’s Executive Director.

ELC: Thank you for speaking with us today, Rodrigo and let me just say how delighted we are to be partnering with OCC. Let’s start by getting some background on why cetaceans play such a critical role in the health of ocean ecosystems.

RGP: Thank you. Let’s define Cetacea first. This class of wide-ranging and diverse aquatic mammals includes whales, dolphins, and porpoises. Often referred to as keystone or umbrella species, cetaceans often provide the drive to protect large water areas thus also protecting the many species that co-exist in those waters.

ELC: So tell me more about the Sanctuary itself.

RGP: After a ten-year campaign, Uruguay adopted law 19.128 in September 2013, which designated the country’s territorial and economic zone waters as a sanctuary for whales and dolphins. The law includes not just the territorial sea but also the economic zone that is exclusive to Uruyguay and prohibits the chasing, hunting, catching, fishing, or subjecting of cetaceans to any process by which they are transformed. 

The law also includes a prohibition against the transportation and unloading of live whales and dolphins, irrespective of whether the vessels sail under Uruguayan or foreign flags. The law also takes into account cases of harassment, aggression, or any other mistreatment that could lead to the death of cetaceans. 

ELC: We know that all cetaceans play critical roles in ocean ecosystems, what about Uruguay makes this law especially critical?

RGP: Thousands of species of whales, dolphins, seals, sea lions, fish, and sea birds call the Uruguayan “Sanctuary for Whales and Dolphins" home - a one of a kind ecosystem.

In this region, the convergence of two major ocean currents, the Rio de la Plata estuary, “and the relatively shallow waters of the area, combine to produce a singular hydrographic system.”[1] This creates one of the most productive aquatic systems in the world, used by many demersal fish for spawning and nursing and sustains several artisanal and industrial fisheries.

As a result of this unique ocean current convergence, in Uruguay’s waters, we find 31 whale, dolphin, and porpoise species[2]. This is in addition to nearly 300 species of fish and over 200 species of sea birds. It’s not just that these species swim in the waters around Uruguay, but more importantly – many also spawn and nurse here too, as well as feed. Hence our focus to grant this area added protection.  

From August to November, whales also rest here on the calm coats of the region on their migratory journey. From the beaches of Punta del Este and Rocha, we often see these gigantic cetaceans. The southern right whale reaches the Uruguayan coast from the Antartic waters in search of warmer waters to birth and nurse their calves.

ELC: What threatens the cetaceans in these waters?

RGP: Of these many species, the IUCN Red List of Threatened Species includes 19 species of Sei Whales, 47 speices of common Threshold sharks and 30 species of Copper Sharks.

Cetaceans face numerous threats including: whaling, entanglement in fishing gear, climate change, ship strikes, toxic contamination, oil and gas development as well as habitat destruction. Without a management plan, shipping traffic and unsustainable fisheries add to the pressure on local cetacean populations.

ELC: Can you tell us more about OCC’s mission and history?

RGP: We promote awareness and educational programs to improve marine conservation efforts and create new opportunities in our communities. We apply scientific research to coastal marine habitats and use this information to protect these areas and their species.

Since we started in 2000 we have grown and we now protect at least 26 species of cetaceans in Uruguay’s waters. We are proud that in 2013 we established the Whale and Dolphin Sanctuary to protect cetaceans; including the Bottlenose Dolphin, Right Whale, Killer Whale, and the endangered La Plata dolphin. Most of these species are endangered by human activity.

The La Plata dolphin, native to our coast, is on the International Union of Conservation of Nature (IUCN) Red List. The La Plata dolphin is dying because of entanglement in gillnets put out by local fisheries.[3] With the establishment of the Sanctuary, we aim to protect species like the La Plata dolphin from such harmful human involvement.

Over the last decade, OCC has identified the major threats to marine conservation along Uruguay’s Atlantic coast, and worked hard to establish both the legislative foundations, inter-institutional and public support necessary for change. We achieved a Decree for responsible whale watching (261/02) while establishing a volunteer whale watching network to alert national coastguard officials where whales are threatened or stressed (avoiding ship-strikes); promoting the installation of viewing platforms along the coast; establishing protocols of good practice marine and certification (together Ministries and National Marine).

I’m also very excited about OCC’s achievements in connecting with the passion of primary and secondary students, who have become advocates for protecting the ocean and marine life. In 2013, a delegation met face-to-face with parliamentarians to designate Uruguay’s territorial sea as a Sanctuary for Whales and Dolphins. OCC was also instrumental in Uruguay’s return to the International Whaling Commission (IWC) after 22 years’ absence, integrating the official delegation and co-sponsorship for the wider South Atlantic Sanctuary for Whales and Dolphins.

ELC: Why did you choose to partner with ELC?

RGP: I was so excited when I first heard about Earth Law Center’s ocean initiative at the UN Ocean Conference. I immediately saw that we focus on the same things – halting the decline and restoring ocean health.

Establishing rights for the ocean is an innovative legal way to make our new marine protected area more effective. Some rivers have gained legal rights recognition, yet the ocean, covering roughly 71 percent of Earth’s surface, does not have any rights. So ours is a necessary alliance.

Recognizing nature’s rights can address issues like overfishing and endangered species. These issues are increasingly difficult to combat when ocean rights are nonexistent.

ELC: How does Earth Law support the OCC cause?

RGP: Now we are connected with ELC, OCC intends to establish legal rights and a concrete management plan for Uruguay’s Whale and Dolphin Sanctuary. Without a concrete plan, the Sanctuary cannot achieve its mission to protect marine species in both territorial and economic zone waters. Dangers include increasing threats from shipping, pollution, and non-sustainable fishing. This is where ELC’s establishment of legal rights comes in.

We have discussed with ELC several areas to strengthen the management of the Sanctuary. This includes things like: raising awareness of the fishing collapse or alerts to reduce collisions with whales; as well as minimizing seismic exploration impacts and coastal inspection of whales by unauthorized boats. By giving legal rights and activities to the individual species, we can enhance the protection of cetaceans and the ecosystem of the Sanctuary.

ELC: In addition to ELC, we understand you have built a broad network of support across many like-minded ocean conservation organizations. Who are your other key partners?

 RGP: We are very grateful for the support of:

• Forum for the Conservation of the Patagonian Sea and Areas of Influence.
• Red Uruguaya de ONGs Ambientalistas
• Asociación Oceanográfica del Uruguay
• Karumbé (Turtles Conservation)
• Instituto Augusto Carneiro
• Mamíferos Marinos Rio Grande Do Sul
• Ocean Care International
• Fundación AVINA
• ASHOKA Entrepreneurs

ELC: Does the Sanctuary stand alone?

RGP: For background, it’s also important to know that the region all around the Whale and Dolphin Sanctuary is ringed with other MPAs.

• In Brazil, adjacent MPAs include Lagoa do Peixe and Taim Ecological Station.
• Argentina has the Reserva Ecológica Costanera Sur, Costanera Sur Natural Park and Reserved Zone, Punta Lara Integral Natural Reserve, El Destino (P. Costero del Sur) Fundación Elsa Shaw de Pearson Private Reserve, Costero del Sur Provincial Park, Bahía de Samborombón Integral Nature Reserve, and Rincón de Ajó Integral Natural Reserve.
• In Uruguay, MPAs include Humedales del Santa Lucia Managed Protected Area Resource, Isla de Flores National Park, Laguna de Rocha Protected Landscape, Cerro Verde Managed Protected Area Resource, Cabo Polonio National Park, and Bañados del Este y Franja Costera Wetlands of International Importance.

The Sanctuary represents the entire exclusive economic zone of Uruguay. The exclusive economic zone (EEZ) defined by the United Nations Convention on the Law of the Sea over which a state has special rights to the exploration and use of marine areas.

ELC: What are your concrete goals for the management plan for the Sanctuary?

RGP: With the management plan of the Sanctuary, we have several shared objectives. We aim to:

• Establish legal rights for the Whale and Dolphin Sanctuary and Patagonian Sea through a legally-binding management plan.
• Create a holistic and ocean rights-based model framework for marine protected area governance.
• Create a community-based management plan for the Sanctuary and Sea using ELC’s holistic and rights-based framework.

ELC: How responsive has the government been for marine issues?

RGP: There is very high government interest. Aside from being signed into law, the following national government agencies are involved: (1) Command of the Navy, (2) Ministry of Environment, (3) Ministry of Tourism, (4) Ministry of Defense, (5) Ministry of Agriculture and Fisheries, (6)  Ministry of Foreign Affairs.

The regional departments of Maldonado and Rocha are also involved. This would fit in with other MPAs in Uruguay like Humedales del Santa Lucia Managed Protected Area Resource, Isla de Flores National Park, Laguna de Rocha Protected Landscape, Cerro Verde Managed Protected Area Resource, Cabo Polonio National Park, and Bañados del Este y Franja Costera Wetlands of International Importance.

This year, the environmental commission in the Senate has shown growing interest in marine issues. For the first time in history, commissioners will be going out in the community and investigate issues OCC presented, including illegal and unregulated fisheries. Current Senator, and frontrunner to become President, Luis LaCalle, offers his full support of the Sanctuary and proposed management plan.

ELC: How can the community get involved in protecting the Sanctuary?

RGP: We have set up a leadership program called “Sanctuary Guardians.” Over 900 youth and teachers join a “floating classroom” which teaches conservation techniques through hands on learning.

Then we must empower concerned citizens and small-scale fishermen to demand that officials take responsibility for marine conservation efforts and also support community values and cultural traditions. For this we are considering seeking support from the Food and Agriculture Organization of the United Nations (FAO). Their International Plan of Action works to establish agreements within the framework of the Code of Conduct for Responsible Fisheries.[4]

Also, we must inform the public of our mission. We favor training talks and interviews so radio, press and television journalists get material designed for them.

We have local teams and citizens who can receive and interpret information from the Global Fishing Watch. This organization uses data published by the Automatic Identification System (AIS) to track the movement of vessels to see if fishing or non-fishing activity is taking place.   This is very important for spotting illegal and unregulated fishing. Globally, this kind of fishing puts ecosystems and sustainable fisheries at risk because it operates outside of sustainability agreements.[5] I believe that co-management of these fisheries is the only way to control and stop illegal fishing activities.

ELC: What are our next steps together?

RGP: I’m confident legal rights will be accepted in the Sanctuary plan. This legal approach clearly strengthens species protection in the Sanctuary. The time frame, of course, depends on the citizens. With a strong willingness to participate and act, we can gain support of authorities and other key organizations. Once this happens, the economic support for activities needed to put the management plan into action (such as education, workshops, meetings and media communication) will follow.

ELC: Any final thoughts you’d like to share?

RGP: When you have spent as much time as I have with these lovely and graceful and intelligent creatures, you will share the sense of urgency we at OCC have to protect their well-being. Losing more cetacean species would be a tragedy for them and for us.

NB: Parts of this interview have been edited and abridged.

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[1] “South American Marine Diversity”

[2] The IUCN Red List of Threatened Species

[3] http://us.whales.org/species-guide/franciscana

[4] http://www.fao.org/fishery/code/ipoa/en

[5] http://www.nmfs.noaa.gov/ia/iuu/iuu_overview.html

Rights for the Patagonian Shelf

Image: onesharedocean.org

By Darlene Lee

The Patagonian Sea and the Patagonian Shelf 

Patagonia, a vast semi-arid plateau in South America, derives its name from “Patagones,” a Portuguese label for the region’s indigenous Tehuelche people.[1]

Famed for its wildlife, many species thrive in Patagonia, including several types of bat, hairy armadillos, red and gray foxes, weasels, and pumas. The unique Patagonian mara, a relative of the guinea pig, is common to the area. It looks like a jackrabbit and lives only in Argentina. Herds of guanaco, a pretty cousin of the camel, are also a common sight.

The surrounding marine region has one of the largest and most productive ecosystems in the Southern Hemisphere. Conservationists have given the name Patagonian Sea to this horseshoe of water wrapped around the southern cone of South America.

Marine conservationist Claudio Campagna, now partnering with Earth Law Center, pushed for the new name to highlight the sea’s stunning wildlife. In 2011 he said: “We invented the term ‘Patagonian sea’ in an attempt to shift the focus of attention towards the diversity of marine species: the wildlife spectacles in and around the sea.”[2] The name Patagonian Sea tells the world that the marine area is as wild and dramatic as its terrestrial counterpart.  

The term Patagonian Shelf refers specifically to the Atlantic side, alongside the coasts of Uruguay, Argentina and the Falkland Islands. The Shelf is nearly 3 million square kilometers and has a coastline of over 800 kilometers.[3]

Why is the Patagonian Shelf so important?

The Patagonian Shelf is a highly productive ecosystem due to the mixing of the warm saline waters of the Brazil Current and the cooler, nutrient rich sub-Antarctic waters.[4]

Home to nearly 4,000 known species,[5] 44 of the world’s 129 species of marine mammals can be found here. These include seven species of baleen whales, and 27 species of toothed whales (including dolphins, porpoises and killer whales). The La Plata River dolphin, Austral dolphin, and Commerson dolphin live only in this region.

The Commerson dolphin is also known as the skunk dolphin or the panda dolphin because of its sharply delineated black and white skin patterning. The smallest cetacean in the Antarctic Seas, adults grow to just 1.5m (5 feet).[6] Speedy, active swimmers, they often surf on breaking waves close to the shore and swim behind fast boats. Generally found in groups of 10 or less, their preference for living near the shore makes them particularly vulnerable to entanglement with fishing gear.[7]

The Patagonian Shelf is home to almost a third of the known species of pinnipeds, including the South American Sea Lion, the South American Fur Seal and, the largest carnivore in the world, the Southern Elephant Seal. Four of these species breed on the Uruguayan and Patagonian coasts and six have a frequent or occasional presence while migrating beyond their territories in Antarctic waters.

Among the area’s seabirds, penguins represent the largest biomass. Volunteer Point shelters the largest colony of King Penguins in the Falkland Islands. An estimated 1000 King Penguins breed here and forage in the Patagonian Shelf. Magellan Penguin colonies dot the coasts of Argentina, southern Chile and the Falkland Islands. One of the largest colonies is on the Isla Martillo in the Tierra del Fuego, Argentina.  Unfortunately, chicks visited and handled by tourists on Isla Martillo develop a stress response that weakens their immune system.[8]  

There are 147 recorded marine and coastal bird species nesting in the Patagonian Shelf region. [9]

The number of Falkland Skuas has dropped by half in just five years, according to a survey of their largest breeding ground on New Island, west of the Falkland Islands.[10] Dr Paulo Catry of Portugal’s Museum of Natural History, who conducted the survey, notes, "If something is not well with them, it may mean that something is not well with the rich Patagonian Shelf ecosystem.”[11]

The Patagonian Shelf also serves as a migration corridor for penguins, turtles and whales.[12]  From April to September Magellan Penguins migrate northward, wintering off the coasts of Uruguay, Brazil and Chile.[13] The migratory corridor of the Southern Right Whales ranges from the calving and nursing grounds in the Golfo Nuevo in the north to the Falkland Islands in the south.[14] (Hunted to near extinction, the Southern Right Whales gained protection and have recovered at a rate of 6 to 7 percent over the past 40 years.)

What are the threats to the Patagonian Shelf?

All species in Patagonia face threats from overfishing, chemical and plastic pollution, invasive species, and climate change.[15]

Overfishing

Fish populations have dramatically decreased in the last decade due to increased fishing and accidental bycatch. Fishery management has been motivated by political interests and not by the protection of marine resources. As a result, over 70 percent of fish stocks are either overexploited or have collapsed in the Patagonian Shelf.[16] These include hake, squid, mackerel, corvina and shore ray.

Non-selective fishing methods, such as bottom trawling and longlines, are also leading to non-target species declining in the Shelf. The Consortium for Wildlife Bycatch Reduction notes that: “Longline bycatch is the principal cause of a global decline in albatross populations, including that of the endangered black-browed albatross. The species is the most common bycatch species in many longline fleets, including those fishing for swordfish off Chile, and for Argentine toothfish and kingclip on the Patagonia shelf. A significant decrease in black-browed albatross populations has been observed at the Falkland Islands, home to 80 percent of breeding pairs.”[17]

Pollution
High shipping and oil tanker traffic has created “chronic oil pollution” in some areas of the Shelf. Major oil spills and contaminated ballast water discharge have particularly affected species such as penguins during their migratory movements along the coast. The Magellan Penguin is one of the most affected by oil contamination and thus a reliable indicator of the number of incidents. Oil spills kill 20,000 adults and 22,000 juveniles every year off the coast of Argentina. Displaced fish populations resulting from climate change also mean that new penguin parents must swim an extra 40 kilometers to find food, increasing the risk of their mates and chicks starving to death. The increase in rain storms also causes chick death because young birds haven’t yet grown waterproof feathers and are vulnerable to hypothermia when they get wet. As a result, 12 of 17 penguin species are experiencing rapid population declines.[18]

The Patagonian Shelf “experiences slight to moderate toxic chemical pollution.”[19] The following pollutants have been detected:

• hydrocarbons derived from oil;
• heavy metals;
• persistently toxic substances (PCB); and
• discharged urban effluents which kill animal life by eutrophication (lack of oxygen due to uncurbed plant growth from excessive nutrients) and solid waste.

These pollutants have not only been detected in the sea water but in the animals inhabiting the area. For example, high cadmium concentrations have been found in the Commerson dolphin.

Near cities, pollution from sewage, industry, and harbors adds to the ecosystem stresses and affects key marine mammals at their most vulnerable – for example, Southern Right Whales during their breeding and calving activities.[20] Southern Right Whales, like most whales, give birth in shallow warm waters[21] since newborns lack a thick layer of blubber leaving them vulnerable to cold and also lacking the buoyancy and strength for open ocean voyages.[22] Whale mothers stay in the same coastal waters for several months until their calf is strong enough for a migration – in the case of the Southern Right Whale, to feeding grounds in the Southern Ocean.[23] Raw sewage discharge into the Shelf has led to microbial pollution, exceeding international recommended levels and causing toxic red tides.

Additionally:

• Severe contamination in ports can lead to malformation and local extinction of coastal species.  For example tributyltin (TBT) causes breeding problems in sea snails on the Argentine coast. TBT is a pollutant from the special paint used to coat ship hulls.[24]
• Plastic causes malnutrition, mobility problems, disease and death when wild marine vertebrate species, especially turtles, birds and mammals, mistake plastic waste for food. Birds, seals, elephant seals and cetaceans also suffer from fatal entanglement in discarded fishing gear.

Invasive species

The accidental and intentional introduction of non-native species has led to decreased biomass of native and keystone species, endangering biodiversity.[25]

• 41 non-native species have been reported in the Patagonian Sea. At least 20 living in coastal areas negatively impact ecosystems. Invaders include plants, sea worms, mussels, snails, barnacles, crabs, and fish.
• Wakame (edible seaweed) covers large extensions of the seabed in gulfs and bays of the Argentine coast of central Patagonia, causing changes in biodiversity and economic losses owing to the degradation of bivalve banks.  
• Possibly two non-native salmon species may have negative effects on penguin populations due to competition for food[26] including squid, hake, sprat and hagfish.[27]

Climate Change

The Shelf has experienced a gradual warming since the late 1950s, measuring 0.06 degrees centigrade warmer in 2012. Rising sea temperature is suspected to be the cause of the annually recorded high mortality of Southern Right Whale juveniles in the Patagonian Atlantic as warmer water has led to a scarcity of prey in the whales’ South Atlantic summer foraging area.

Rising sea temperatures have also reduced prey for adult female whales, potentially explaining the poor nutrition of whale calves in their first weeks of life.[28] Additionally, ocean acidification from increased carbon absorbed by the world’s oceans has resulted in harmful algal blooms (red tides). Toxins produced by these organisms have recently caused a sharp increase in seabird mortality.

What is being done to protect the Patagonian Shelf?

Recent decades have seen unprecedented advances in the science needed to design appropriate conservation plans for the Patagonian Sea. The scientific, civil society, and government sectors have effectively collaborated to identify the areas most important for ensuring that this seascape maintains its marine identity and ecological functions.

Such strategic and collaborative work, only possible through multinational and multidisciplinary alliances, has achieved unparalleled government commitments to making a long-lasting impact on the preservation of the Patagonia seascape. Countries are working to protect at least 10 percent of their national waters by 2020, in accordance with the Aichi Biodiversity Targets set by the Convention on Biodiversity.[29]

Why does the Patagonian Shelf need legal rights and what does that mean?

Marine protected areas are an important step forward in ocean protection, but humankind’s  dominant culture of wasteful consumption continues to pollute and degrade marine ecosystems. We now have the chance to go further by shifting the entire paradigm. When the Patagonian Shelf has legal rights the dominant culture will adapt to consider the ocean’s needs alongside human needs.

The drive for legal rights for the ocean emphasizes ocean health as the top priority. It means evaluating human activities by their impact on the ocean’s natural rhythms and cycles.

Legal Rights for the Patagonian Shelf means:

• humans create a sustainable relationship with marine species and ecosystems; 
• protection and restoration are legal responsibilities;
• management boards (or ‘guardians’) ensure that human activities do not violate the rights of species and ecosystems.

Looking after the ocean now will save its wonders for future generations. Special thanks to Mission Blue who has designated the Patagonian Shelf project a Hope Spot, a place recognized for being critical to the health of the ocean—Earth‘s blue heart. Hope Spots are about recognizing, empowering and supporting individuals and communities around the world in their efforts to protect the ocean.

How can I help?

• Share Earth Law news on social media
• Research your local ocean protection organization and participate
• Join the movement by volunteering and supporting Earth Law Center
• Volunteer for this initiative by emailing dlee@earthlaw.org

Organizations who signed onto Earth Law Center’s Call to Action at the United Nations Ocean Conference in June 2017 featured below:

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[1] https://www.britannica.com/topic/Tehuelche-people

[2] https://news.mongabay.com/2011/09/sowing-the-seeds-to-save-the-patagonian-sea/

[3] https://en.wikipedia.org/wiki/Patagonian_Shelf

[4] http://www.mpatlas.org/campaign/patagonian-shelf/

[5] http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0014631

[6] https://en.wikipedia.org/wiki/Commerson%27s_dolphin

[7] http://us.whales.org/species-guide/commersons-dolphin

[8] https://en.wikipedia.org/wiki/Magellanic_penguin

[9] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3031619/

[10] http://news.bbc.co.uk/earth/hi/earth_news/newsid_9447000/9447159.stm

[11] http://news.bbc.co.uk/earth/hi/earth_news/newsid_9447000/9447159.stm

[12] https://marpatagonico.org/index.php/en

[13] https://www.researchgate.net/publication/226459043_Winter_migration_of_Magellanic_penguins_Spheniscus_magellanicus_from_the_southernmost_distributional_range

[14] http://icb.org.ar/Publicaciones/SC_66a_BRG_22.pdf

[15] http://us.whales.org/wdc-in-action/commersons-dolphins-and-other-species-of-southern-patagonia-argentina

[16] http://lme.edc.uri.edu/images/Content/LME_Briefs/lme_14.pdf

[17] http://www.bycatch.org/focus-species/black-browed-albatross

[18] https://en.wikipedia.org/wiki/Magellanic_penguin

[19] http://lme.edc.uri.edu/images/Content/LME_Briefs/lme_14.pdf

[20] http://wwf.panda.org/about_our_earth/ecoregions/patagonian_southwest_atlantic.cfm

[21] http://oceanadventures.co.za/southern-right-whales-distribution-and-reproduction/

[22] https://www.wildaboutwhales.com.au/whale-facts/about-whales/whale-migration

[23] https://data.marinemammals.gov.au/arwpic/index.php?route=information/information&information_id=9

[24] https://marpatagonico.org/index.php/en/patagonian-sea/threats

[25] http://lme.edc.uri.edu/images/Content/LME_Briefs/lme_14.pdf

[26] https://marpatagonico.org/index.php/en/patagonian-sea/threats

[27] http://animals.mom.me/magellanic-penguin-2467.html

[28] https://marpatagonico.org/index.php/en/patagonian-sea/threats

[29] https://medium.com/wcs-marine-conservation-program/scaling-up-marine-protection-in-patagonia-2c94001957b

Views from ELC’s First International Marine Protected Area Conference

The view from the venue for IMPAC4 in La Serena- Coquimbo Chile

By Michelle Bender

Moves to support the oceans in 2017

What a tremendous year for international efforts to conserve the ocean! In June, the United Nations held the first Oceans Conference, drawing 6,000 government officials, stakeholders, businesses, and civil society representatives worldwide. The Conference resulted in a Call for Action committing parties to:

“halting and reversing the decline in the health and productivity of our ocean and its ecosystems and to protecting and restoring its resilience and ecological integrity.”

Also this year, the United Nations set up PrepCom meetings to negotiate moving forward with an international high seas treaty.[i] The General Assembly is now deciding on the start date for workshops to develop and negotiate the treaty. This treaty will focus on preserving biodiversity in the high seas through deployment of marine protected areas.[ii]

Further positive news is expected when international leaders meet in Malta for the“Our Ocean Conference”[iii] in early October. Then later in the month, Manila hosts the Convention on Migratory Species (October 23-28).

The Fourth International Marine Protected Area Conference (IMPAC4)

IMPAC4 met in La Serena-Coquimbo in Chile from September 4 to 8. Held every four years since 2005, IMPAC creates a knowledge-sharing space for practitioners and managers working to strengthen the use and management of marine protected areas to achieve conservation and sustainability objectives.

This year over 1000 participants from 80 countries attended, including the Prince of Monaco, President of Chile, Michelle Bachelet and renowned oceanographer, Dr. Sylvia Earle.

This year’s conference focused “on the need to highlight the intricate nature of ocean-human relationship.” Earth Law Center (ELC) attended IMPAC4 to promote an approach to governance that does just that.

The IMPAC4 conference experience

The days began at 8:30am with an opening plenary session, and continued until roughly 6:00pm, with a one-hour lunch break. At any given time, participants could choose from at least 10 workshops, seminars or presentations, making it hard to choose which one to attend. Sometimes, people opted to start at one only to end at another.

On top of the scheduled events, a pavilion of stands gave organizations from across the world an opportunity to showcase their work and start new conversations.

 And of course, let’s not forget side events, beginning at 6:30pm and 7:30pm, to learn more about the great work of organizations while networking over wine, bread and cheese.

I was lucky if I had a 10-minute breather between running to impromptu meetings and to a workshop to meet potential partners. Networking is the name of the game at conferences like IMPAC, which meant my day started at 8am and often ended well past 10pm. More than once, I received a “can you meet now” email and rushed to meet new colleagues.

The Greenlist at IMPAC4

On the first day of the conference I stopped by the stands to learn more about the work of other organizations. One such stand was the International Union for the Conservation of Nature (IUCN) Greenlist, which has produced a sustainability standard to help improve the performance of protected areas by ensuring marine protected areas are effectively managed.

Being ‘Greenlisted’ means that the area is recognized for effective management and meeting conservation objectives. This method of maintaining good governance standards with a rights and sites-based approach aligns well with the Earth Law Framework for Marine Protected Areas, which promotes a holistic and rights-based approach to governance in order to ensure marine protected areas are effective. ELC met with members of the IUCN Greenlist to share the commonalities of our frameworks.

It was uplifting to see established organizations such as the IUCN truly interested in Rights of Nature and wanting to follow up after the conference to discuss possible collaboration. Such collaboration is incredibly timely as IUCN members have committed to “advance rights regimes related to the rights of nature” through their 2017-2020 Action Programme, to promote “protected area governance systems that achieve the effective and equitable governance of natural resources are recognized (as best practices/ pilot testing), supported and promoted, while respecting the rights of nature.”[iv]

Meetings with remarkable ocean champions

As a result of meeting with the IUCN Greenlist, I met Sandra Valenzuela of World Wildlife Fund (WWF) in Colombia, who helped establish the first marine protected area in Latin America, Gorgona National Park. This is where my extroversion helped a lot. I took it upon myself to introduce myself after her presentation with the IUCN Greenlist, hoping that she may have been involved in the recent decision in Colombia which granted the Atrato River legal rights. As fate would have it, Sandra has been involved in implementing the Atrato River decision, so look for news on this front with ELC involvement soon.

Susana Claro, Fundacion Los Choros; Sylvia A. Earle, Mission Blue founder; Jennifer Sletten, Protected Seas; and Michelle Bender, ELC.

While making new friends at the stands, I ran into Mission Blue partners, Charlotte Vick and Dr. Sylvia Earle. As a long-time fan of Dr. Earle’s work, meeting her in person was a momentous occasion for me. Her well known quotes came immediately to mind; “No Blue, No Green” and “We must protect the ocean as if our lives depend on it, because they do.”

I had created objectives for my attendance at the Conference, first and foremost which was to gain the endorsement of Mission Blue and Sylvia for the Framework I had worked tirelessly on for the past three months. Indeed, the framework received the enthusiastic support of Mission Blue, and a copy of ELC’s vision will be sent to every NGO working on ocean conservation.

The Mission Blue Alliance includes nearly 200 respected ocean conservation groups, large multinational companies, individual scientific teams and NGOs around the world who share the mission of building public support for ocean protection. ELC also connected with other Mission Blue alliance members at the conference, including Protected Seas and Fundacion Los Choros, both of which represent opportunities for collaboration and support in our like-minded visions.

Tuesday night I attended the Ocean Witness Side Event, a new collaboration between WWF, Conservation International (CI) and Rare. Yolanda Kakabadse, president of WWF, spoke about why Ocean Witnesses are so important to conserving the ocean. I was looking down, taking notes when I heard “An Ocean Witness is someone who speaks up for the rights of nature – for the Ocean.” You can imagine my delight and excitement; this is exactly why I came to this conference - to promote the Rights of the Ocean!

Yolanda then continued to elaborate on the Rights of Nature in Ecuador with two successful court cases, one won on behalf of sharks within the Galapagos Marine Reserve. I knew I had to introduce myself, and thank Yolanda for what she said. So yes, I squeezed myself to the front (which was not hard, I am tiny) and introduced myself and the Earth Law Framework for Marine Protected Areas. To my knowledge, this is the first time rights of nature has been presented at an event of this magnitude, by one of the world’s largest environmental organizations.

Earth Law Center continues to network with new partners

The next three days of the conference were jam-packed with meetings and introductions. I met with various members of global organizations including IUCN, WWF, Conservation International, the Conservation Land Trust, Greenpeace, and local groups including Fundacion Meri, Costa Humboldt, Fiscalia Del Medio Ambiente (FIMA), Asociación Interamericana para la Defensa del Ambiente (AIDA) and the Forum for the Conservation of the Patagonian Sea and Areas of Influence. All of whom were genuinely interested in the Rights-based approach to ocean governance.

Lawyers, politicians, scientists, researchers and civil society groups led events and shared their knowledge, insights and expertise on how to expand the adoption and effectiveness of marine protected areas.

Topics of discussion ranged from the Global Ocean Biodiversity Initiative to creating MPAs in Antarctica, from marine biodiversity impacts in Chilean Patagonia to impacts on the Great Barrier Reef, from understanding the effects of ocean noise on ocean ecosystems to solutions for MPA financing, and from a framework for large-scale MPAs to the use of important marine mammal areas as potential areas for conservation.

However, there was a key discussion point largely left out: what can we do better?

An IMPAC4 attendee asks “what can we do better?”

While inspired to learn of the hard work individuals and groups have put into creating marine protected areas, I wondered why we didn’t talk about: what more can we do? Don’t we need to look for gaps in the current system or discuss how to further evolve it since ocean health is by no means on the rise? The business-as-usual model took a front-row seat at the IMPAC.

In the final workshop on the last day of the conference “Antarctic Marine Protected Areas”  (MPAs) there was time for one question. Carl Gustaf Lundin, asked out loud what no one else had: “Not to trump the work of others, but shouldn’t we be doing more? Shouldn’t conservation be the number one objective rather than allowing other interests to sway management decisions?” I couldn’t agree more with Mr. Lundin, and this is exactly what I have included in Earth Law Center’s Framework for Marine Protected Areas.

The Earth Law Framework for Marine Protected Areas

Prior to IMPAC4, Earth Law Center conducted months of research and analysis to create the Earth Law Framework for Marine Protected Areas, a ‘how-to guide’ to evolve the current framework to include the rights of the ocean.

Our Earth Law framework goes beyond the traditional methods of “resource” management to provide a clear legal mandate for managing protected areas as part of a system, and as part of the whole that also includes humans. This framework is a first draft and includes a call for inputs to gain global consensus on effective policy measures and support for an ocean-centered approach to ocean protection.

I was pleased to have Earth Law Center’s Framework met with such interest and enthusiasm at the conference. This framework intends to evolve and build upon what has already been done, to accomplish our shared objective of making marine protected areas ecosystems conserved in perpetuity.

Global awareness is building that the ocean is not a limitless resource and how much the health of humans and all other living species depends on ocean health. Addressing the root cause by transforming our relationship with the ocean and the legal system we function within holds the key to restoring ocean health.

The framework presented is intended to serve as a guideline for implementing an approach to marine protected area governance that allows humans to live within the ocean’s ecological limits. The ocean cannot take a human-centered approach any longer. The ocean needs us to transform our governance systems, to recognize that the ocean has inherent rights to live, thrive and evolve, and to acknowledge that humans have a responsibility to respect and protect those rights.

Join the movement to recognize and protect the ocean’s rights.

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[i] http://www.pewtrusts.org/~/media/assets/2017/03/road-to-high-seas-conservation.pdf

[ii] https://www.nytimes.com/2017/08/02/climate/nations-will-start-talks-to-protect-fish-of-the-high-seas.html

[iii] https://ourocean2017.org/

[iv] See bit.ly/RES100: In 2012, IUCN members recognized the necessity of nature’s rights by passing Resolution 100, “Incorporation of the Rights of Nature as the organizational focal point in IUCN’s decision making” which called for nature’s rights to be a “fundamental and absolute key element in all IUCN decisions.”

Ecosystem Based Approach to MPAs

A Breakthrough in Ocean Protection: Legal Rights for Marine Protected Areas

By Stina Bagge

For as long as we can remember, people have believed in the healing properties of water. Whether or not you believe in the actual healing powers of the water itself, who doesn’t have fond memories of swimming in clear blue waters, diving and exploring massive coral reefs, surfing or kayaking at sunset? Not only do we turn to water and the ocean for a sense of calm or clarity - Human health and well-being depend on the planet’s health, and the planet requires the seas and ocean to be healthy, resilient, and productive. In fact, 71% of the planet’s surface consists of water - If that part of our planet isn’t healthy, how can the rest of us be?

Why do Marine Protected Areas matter?

Marine protected areas (MPAs) keep important ocean areas in their natural state, and have proven their ability to increase biomass and biodiversity in ecosystems. They exist in many forms, and with varying definitions and levels of protection.

The organization ‘Protected Planet’ states that MPA areas cover 4% of the world’s seas and oceans – compared to the approximate 12% of land under protection. The International Union for Conservation of Nature (IUCN) defines MPAs as: 'A clearly defined geographical space, recognized, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values'.

Yet despite MPAs, the ocean continues to suffer from pollution and degradation because the dominant culture of consumption and waste fails to recognize how much we need a healthy ocean. Building on the foundation of protecting ecosystems and biodiversity, we now have an opportunity to shift the paradigm – from looking only at human needs to looking at ocean needs as well as human needs. The drive for legal rights for the ocean emphasizes ocean health as the top priority – it means evaluating activities first on the basis of whether this helps the ocean maintain its natural rhythms and cycles – so that future generations also have the opportunity to make memories of swimming in clear blue waters, diving and exploring massive coral reefs, surfing or kayaking at sunset.

Of the 5,000 MPAs in the world today, the most beneficial results for ocean health, ecosystems and biodiversity come from ‘no-take zones’, otherwise known as marine reserves, a special type of MPA. They represent 0.012% of the total sea surface, and are “places in the ocean that are completely protected from uses that remove animals and plants or alter their habitats”.

 How about MPA governance?

MPAs sometimes struggle with effective management. The lack of effective surveillance, enforcement methods, and implementation of management plans lead to “paper parks.” Effective MPA governance requires clearly defined rules, responsibilities, rights, and management plans.

Many experts and governments are calling for an “ecosystem-based approach” (EBA) to sea and ocean governance. It promotes conservation and sustainable use in an equitable way and strives for balance between sustainable use, conservation, costs, and benefits for land, water, and living resources. Instead of considering single species and habitats in isolation, the EBA identifies links between all living and non-living resources, and reflects on the relationships between all ecosystem components. The ecosystem-based approach recognizes humans as an integral component of many ecosystems. An effective ecosystem-based management would result in MPA being created with objectives such as restoring and managing ecosystems and their natural processes, instead of being created for purely economic reasons.

However, stakeholders can find EBA implementation challenging. What the seas and oceans need is a paradigm shift so that other species and ecosystem needs are equally important to human ones. What possibilities to we have to even further protect the ocean? Well, this is where Earth Law Center enters the picture.

Earth Law  – The next step to protecting the Ocean

Earth Law Center (ELC) catalyzes a movement that promotes a framework to encompass ecological, social, economic, scientific, and cultural aspects of society – Earth Law. Since the major problems facing the planet today – poverty, emerging diseases, global warming and climate change – are intertwined, Earth Law maintains that we can’t address one without addressing the others. But to connect many issues driving towards a shared goal, Earth Law offers a clear next step.

A new holistic Earth Law framework sounds similar to an ecosystem-based approach. Both approaches recognize human and ecosystems as interdependent and regard the maintenance of the structure and function of ecosystems as crucial to our survival. However, while the ecosystem approach holds humans to be above and separate, the Earth Law framework mirrors that of many indigenous tribes – viewing humans as one part of the interconnected whole and nature and its many species as equal partners with humans.

What does it mean for the Ocean to have rights?

• Nature becomes our partners so the basic needs of all species, humanity included, are met
• The Ocean and its inhabitants no longer get treated as property or a resource, but as a legal entity, with its own intrinsic worth and value – whose health and well being determines our health and well being
• Humans have a legal responsibility to respect and protect Ocean rights including restoration

Momentum builds for Earth Law

This year, high courts recognized legal rights for the river Whanganui in New Zealand, the rivers Ganges and Yamuna in India and the Atrato River in Colombia. Ecuadorians amended their Constitution in 2008 to include Rights of Nature: including the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes of evolution; and the right to restoration. Bolivia, Mexico City followed suit in 2011 and 2017. Over two dozen towns and cities in the US have passed rights of nature ordinances.

According to the United Nations, “Devising a new world will require a new relationship with the Earth and with humankind's own existence. Since 2009, the aim of the General Assembly, in adopting its five resolutions on 'Harmony with Nature', has been to define this newly found relationship based on a non-anthropocentric relationship with Nature. The resolutions contain different perspectives regarding the construction of a new, non-anthropocentric paradigm in which the fundamental basis for right and wrong action concerning the environment is grounded not solely in human concerns.[1]

For a complete chronology of Rights of Nature initiatives around the world, click here.

ELC’s ‘Global Call for Inputs’

Earth Law Center (ELC) has created a framework for holistic and rights-based Ocean governance, informed by extensive research and analysis. ELC has also launched a collaborative ‘call for inputs’ expert dialogue to collect best practices and recommendations on paving the way forward towards holistic policies which include legal rights for the ecosystem.

Michelle Bender, Ocean Rights Manager of ELC, will launch the framework at the Fourth International Marine Protected Area Conference (IMPAC) in Chile from September 4th to 8th. This year’s conference will “focus on the need to highlight the intricate nature of ocean-human relationship…. [and to] develop practical and effective management measures and therefore have successful MPAs [marine protected areas].”

ELC is partnering with a consortium of organizations and experts to promote legal rights for the ocean at IMPAC– namely for the Patagonian Sea. The Patagonian Sea is a remarkable intersection of global physics, marine biodiversity, and climate and economic change but faces increasing threats from commercial fishing, oil drilling, and climate change. The Chilean government has already announced commitment to work with Argentina, creating a network of protected areas in Patagonia. Chile and Argentina have the opportunity to lead by creating the first marine ecosystem with legal rights, a decision that will ensure this area is effectively protected now and in the future.

Even though we might not see the full realization of the rights of nature and the ocean in our lifetime, we have the possibility to influence change and inspire this new concept of rights for nature. To remember that it is not hierarchy or seniority but ideas that matter, and ELC believes that the new Earth Law approach truly will benefit humankind, the oceans, nature and planet earth. Let us save the ocean, so it can save us!

Email mbender@earthlaw.org or https://www.earthlawcenter.org/patagonian-sea-project/ to join the movement!

[1] http://www.harmonywithnatureun.org/

A New Paradigm for Our Ocean

Yann Arthus-Bertrand, Tortuga Island, Galapagos Archipelago, Ecuador

Earth Law Center is promoting a new paradigm for ocean governance- one that focuses on the Ocean’s own well-being and is guided by principles of sustainability, ecosystem health, precaution and interconnectedness.

June 14th 2017
By Michelle Bender
Ocean Rights Manager, Earth Law Center

The ocean covers over seventy percent of our planet, generates over fifty percent of the oxygen, regulates climate and provides food and jobs for millions of people. It is truly the source of life. Current changes to its systems and cycles spread far beyond the deep onto land, generating concerns for the future.

These concerns were mirrored at the first United Nations Ocean Conference- which brought together governments, stakeholders, businesses, and civil society representatives worldwide to “reverse the decline in the health of our ocean for people, planet and prosperity.” Co-hosted by countries Sweden and Fiji, the Conference took place June 5th through 9th at the United Nations Headquarters in New York City. Over 6,000 people participated and over 1,300 voluntary commitments [i] to conserve and sustainably use our oceans were made. Issues discussed ranged from overfishing to climate change, to plastic and noise pollution, to deep-sea mining and high seas governance. The coming together to protect and conserve our shared ocean was a truly inspiring and momentous occasion.

Most participants spoke on their work to advance Sustainable Development Goal 14: to conserve and sustainably use the oceans, seas and marine resources for sustainable development. Earth Law Center [ii] (ELC) saw the Ocean Conference as an opportunity to begin building support for a new paradigm for ocean governance- one that focuses on the Ocean’s own well-being and is guided by principles of sustainability, ecosystem health, precaution and interconnectedness. Earth Law Center has a long standing working on ocean and coastal issues, and as a result, has experienced firsthand the need to promote a new way forward.

Despite international laws and agreements designed to sustain and protect the ocean, marine biodiversity and health is in decline. This is because current ocean law and policy is largely based on economics, rather than science and the rule of law. We treat the ocean as an infinite “resource,” with value derived from human use and utility, when in fact, it is a finite entity with its own limits and intrinsic worth. Environmental laws have become a result of negotiation, allowing industry to continue to pollute and degrade natural ecosystems with the false assumption that activities that support conservation are costs to our economy.

As a result, current ocean law and policy largely focuses on the impacts to humans, rather than the impacts to the ocean or the Earth as a whole.

Take for example the Magnuson-Stevens Fishery Conservation and Management Act. The Magnuson-Stevens Act (MSA) was enacted in the United States in 1976 to “prevent overfishing, rebuild overfished stocks, increase long- term economic and social benefits and to ensure a safe and sustainable supply of seafood.” The MSA at first glance, appears to aim for the conservation and restoration of fish populations, but we are still seeing fisheries collapse; in 2016 NOAA identified 9% of US stocks on the “overfishing” list and 16% on the “overfished” list. [iii] A further look at the MSA reveals why we cannot fully prevent overfishing.

A stated purpose of the MSA is “to provide for the preparation and implementation… of fishery management plans which will achieve and maintain, on a continuing basis, the optimum yield from each fishery,” [iv] where optimum is defined as the “amount of fish which will provide the greatest overall benefit to the nation.” [v]

As a result, fishing quotas are based on “maximum sustainable yield,” which is a theoretical level of harvest that will allow fish populations to replenish themselves. [vi] This is why we are getting into trouble. We are basing the management of our activities on sole benefit to ourselves, and on a metric which is known to be “devilishly hard to predict accurately” [vii] and that does not take into account other factors affecting fish mortality (other predators, natural events, pollutants, etc.). [viii]

Rather than aiming to prevent collapse, why not shift our approach towards aiming to maintain healthy and thriving populations? This is where a holistic and ocean-rights based approach provides a means to an end. Rather than asking ourselves what level of fishing provides the greatest benefit to us, we start asking what level of fishing provides the greatest benefit to the whole of the Earth community; all systems, species and ecosystems. We shift our approach to ensure the basic needs of all species are fulfilled, now and into the future.

Earth Law Center promoted this approach at the UN Ocean Conference, with a statement and initiative that garnered the support of over 60 organizations from 32 countries (to remain open to signatories). [Statement and Initiative] This includes Mission Blue, who have rallied over 170 organizations around the goal to protect 30% of the ocean by 2030.

Though not specifically calling for the adoption of ocean-rights based governance, countries and participants at the conference called for the change that an ocean-based approach would provide, including:

• Papua New Guinea recognized the need for a paradigm shift and called on the UN to adopt a ‘Call for Action’ which takes seriously our “collective duty and responsibility” to halt the decline of the health of the oceans and seas. [ix]

• China reaffirmed the need to “preserve the harmony between man and nature, treating man and nature as equals” and to “achieve development without damaging the environment.” [x]

• Belgium, expressed the need to base development on a “holistic and system approach” and reminded us that “we do not possess the ocean.”[xi] and

• UN Chief António Guterres urged governments and stakeholders alike to “put aside short-term gain” in order to protect the ocean, which “represents the lifeblood of our planet.” [xii]

The conference ended with an "intergovernmentally agreed upon declaration in the form of a ‘Call for Action [xiii]’ to support the implementation of Goal 14.” Though the document does not list adopting holistic and rights-based governance as a measure to conserve and sustainably use the ocean, ELC will continue to garner support and promote this approach within the United Nations and International Treaty Law.

The paradigm ELC is promoting is inherently logical. Human welfare is tied to the welfare of the Earth. Because of this, “development must be based on ‘ecological foundations’ that recognize the integral processes of the biosphere and the need for harmony and balance among all elements of the system.” [xiv] Implementing Rights of Nature legislation allows for such a basis, by recognizing that rights originate from existence and that humans are a part of the Earth, not above it. Such is the rule of law. Since we are not above the Earth, our laws should not place us as so. Our laws must respect natural laws. By adopting the rights of nature, and in this case the ocean, into our governance systems, we become better stewards, ensuring that our activities do not violate the ocean’s rights to life, to health, to be free of pollution and to continue its vital cycles.

The Rights of Nature and Earth Law movement has seen tremendous success recently. It was listed as a top 10 grassroots movement taking on the world by Shift Magazine in 2015. In 2017 alone, four rivers have been granted legal personhood status, that is, they have been granted the same legal rights as a juristic person. They Include the Whanganui River in New Zealand, the Ganges and Yamuna Rivers in India, and the Atrato River in Colombia (see: bit.ly/ELCIL).

These successes have largely focused on land-based ecosystems to date, with only Ecuador, the first country to adopt Rights of Nature into its constitution, to manage the Galapagos Islands and marine protected areas through governing principles including ‘‘[a]n equilibrium among the society, the economy, and nature; cautionary measures to limit risks; respect for the rights of nature; restoration in cases of damage; and citizen participation.” [xv]

There is no better time than the present to apply this movement to all Earth’s ecosystems. We are reversing the tide. Many organizations have already begun work with Earth Law Center to create legal rights for marine protected areas or sanctuaries in their respective countries, including Uruguay, Argentina, Costa Rica and Australia. Creating holistic and rights-based laws to protect the ocean will not be easy, and there will be much resistance, but it is a necessary step to not only ensure that we restore the health of the ocean, but protect our future.

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[i] http://www.un.org/apps/news/story.asp?NewsID=56947#.WUA7ody1s6R

[ii] Earth Law Center (ELC) works to establish Earth-based law, and in particular to transform the law to recognize and protect the rights of nature. ELC, a legal advocacy group, is at the forefront of this rights-based movement, and is committed to establishing holistic and rights-based governance of the ocean. www.earthlawcenter.org

[iii] http://www.nmfs.noaa.gov/sfa/fisheries_eco/status_of_fisheries/

[iv] 16 U.S.C. §1801(b)(4)

[v] Id. § 1802(33)

[vi] Nils E. Stope. Maximum sustainable and effective fisheries management. FishNet USA. Jan. 2009. http://www.fishnet-usa.com/maximum_sustainable_yield.htm

[vii] Robert Jay Wilder. Listening to the Sea: The politics of Improving Environmental Protection. Pg. 95. https://books.google.com/books?id=MimW7_6I934C&pg=PA95&lpg=PA95&dq=magnuson+stevens+act+maximum+sustainable+yield&source=bl&ots=4P-2JkIvOw&sig=YghTgcXAZsqohRwYkGyVVgM72k4&hl=en&sa=X&ei=18OdVYKCOszz-QH-tKSwBQ&ved=0CFYQ6AEwCA#v=onepage&q=magnuson%20stevens%20act%20maximum%20sustainable%20yield&f=false

[viii] Id. At. Stope.

[ix] Statement by H.E. Mr. Max Hufanen Rai, Permanent Representative and Ambassador of Papua New Guinea. https://sustainabledevelopment.un.org/content/documents/23402Papua%20New%20Guinea%20Statment%20on%20the%20Call%20to%20Action.pdf

[x] Statement by country representative at the Fifth Plenary Meeting of the UN Ocean Conference held on June 7th; webtv.un.org.

[xi] Id.

[xii] http://www.unmultimedia.org/radio/english/2017/06/put-aside-short-term-national-gain-to-save-the-ocean-un-chief/#.WUFmH9y1s6Q

[xiii] https://oceanconference.un.org/callforaction

[xiv] Gudynas, E. Development (2011) 54: 441. doi:10.1057/dev.2011.86

[xv] Article Three of the Special Law of the Galapagos