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 . 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 .
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 .
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 .
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 .
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 .
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 .”
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.
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 . 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.
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.