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

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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

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.

[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