Building Momentum: Earth Law Center’s Universal Declaration of River Rights

Horses drink from the Río Magdalena, Mexico. Image: Luc Forsyth

By Darlene Lee

A Legal Movement to Save Our Planet

Laws safeguarding the environment have not kept apace with rapidly expanding human activity. Earth has lost more than half its trees since humans first learned to wield an axe. According to the WWF, roughly one-quarter of coral reefs worldwide are considered damaged beyond repair, with another two-thirds under serious threat. The good news is that a solution has appeared, in the form of Earth Law.

Earth Law is the growing body of law recognizing that the Earth has inherent rights, and that humans and nature are co-members of a larger Earth Community whose well-being is guaranteed. Rather than treating nature as “property” for human consumption, Earth Law recognizes that nature is an entity with its own rights. Nature's rights are not “given” by humans, but rather are inherent to nature’s existence – just as humans possess inherent rights to life, liberty and the pursuit of happiness. 

In the 1970s in the United States, legal scholar Christopher Stone first proposed a well thought out argument on how to give rights to nature.[1] It took a while, but in 2006, Tamaqua Borough in Pennsylvania became the first US community to recognize the rights of nature within municipal territory.[2] Since then dozens of communities have adopted similar local ordinances, including Santa Monica in 2013 – the first West Coast city to adopt a rights of nature law.

Globally, Ecuador became the first nation to amend its constitution to include rights of nature in 2008. In 2012, Bolivia passed the first of two national rights of nature laws, and Mexico City followed in 2017 by including rights of nature within its new constitution. Rights of nature has already won in the courts, too, beginning with a 2011 case in which Ecuador’s Provincial Court of Loja ruled in favor of nature (calling for restoration of the Vilcabamba River, which was harmed by a road-widening project).[3]                                                                                    

Rivers Win Rights in 2017

This year four rivers gained legal rights recognition. New Zealand’s Parliament formally enacted a treaty in March that recognized the Whanganui as a legal person with fundamental rights, including the right to sue. This made it the first river in the world to gain recognized legal rights. Just five days later, the Uttarakhand High Court in India recognized two rivers (the Ganga and Yamuna) as “living entities” with fundamental rights, also allowing designated humans to represent the rivers in court and file complaints on the rivers’ behalf. And most recently, in May 2017, Colombia’s Constitutional Court granted rights to the Atrato River[4] and ordered the government to clean up its waters.

In each of the instances where the rights of rivers were recognized, a dedicated and passionate local group worked with government officials and judges to achieve the positive outcome. In the case of the Whanganui, the question was less about environmental sustainability and more about spiritual and cultural values. “The reason we have taken this approach is because we consider the river an ancestor and always have,” said Gerrard Albert, the lead negotiator for the Whanganui iwi [tribe]. “We have fought to find an approximation in law so that all others can understand that from our perspective treating the river as a living entity is the correct way to approach it, as an indivisible whole, instead of the traditional model for the last 100 years of treating it from a perspective of ownership and management.”[5]

The Whanganui decision also set an important precedent by addressing critical questions of restoration, with a NZ$30 million budget towards improving the river’s health included in the settlement. This will serve as an important model for future legislation since adequate funding to implement nature’s rights is a necessity.

With the Te Awa Tupa Bill setting the stage, two court rulings soon followed that established legal rights for additional rivers. In India, in addition to recognizing the essential protections for rivers arising from recognition of its rights, the case also arose from the traditional Hindu view that regards the universe as a manifestation of the divine. This means that rivers, plants, animals and even the Earth are considered sentient divinities with particular forms, qualities and characteristics.                                                      

The second court ruling was in Colombia, where the Colombian Constitutional Court addressed the severe pollution of the Atrato River, located on the country’s northwest coast. This case was brought to the court’s attention thank to the efforts of Colombian NGO Tierra Digna, Afro-Colombian organizations and other indigenous groups, who highlighted extensive negative health impacts both to riverine communities and the aquatic ecosystem itself.[6]

In a major victory for waterways in the Americas, the Court found that the Atrato River is “subject to the rights that implicate its protection, conservation, maintenance and in this specific case, restoration.” The suit also specifically called out the state for its neglectful behavior and ordered that the river be restored to health.

“[T]he human species is only one more event within a long evolutionary chain that has lasted for billions of years and we [humans] therefore, in no way, are the owner of other species, biodiversity or natural resources, or the fate of the planet,” stated the Court, “Consequently, this theory conceives nature as a true subject of rights that must be recognized by states and exercised under the tutelage of their legal representatives, for example, by the communities that inhabit it or have a special relationship with it.”[7]

Universal Declaration of River Rights

ELC has been working to integrate these global victories for river rights, as well as ecological principles of river health, into a common set of rights that are universal for all rivers. Working with river and nature’s rights experts from across the globe, ELC drafted a Universal Declaration of the Rights of Rivers (“Declaration”), which defines the minimum fundamental rights to which all rivers are entitled. These fundamental rights include:

(1) The right to flow,[8]

(2) The right to perform essential functions within its ecosystem,[9]

(3) The right to be free from pollution,

(4) The right to feed and be fed by sustainable aquifers,

(5) The right to native biodiversity, and

(6) The right to restoration.

Recognizing that rivers are part of a larger system, the Declaration asserts that these rights are also intended to ensure “the health of the river basins of which rivers are a part.” Additionally, it calls for appointment of one or more legal guardians to act on behalf of rivers’ rights, with at least one such guardian being an indigenous representative for those rivers upon which indigenous communities depend.

ELC believes that these key provisions, amongst the others included in the Declaration, will set a standard for establishing rights for rivers that can be drawn on by governments across the globe, much like the Universal Declaration of Human Rights and the Universal Declaration of the Rights of Mother Earth. And more broadly, implementing these rights will mean that society can begin to protect rivers for reasons aside from their utility to humans, to the mutual benefit of us all.

While setting a positive vision for the future, the Declaration also recognizes the devastation faced by rivers and river basins worldwide – such as the 57,000 dams choking and drying two-thirds of all major rivers – and pays tribute to those rivers that have already died due to human activities, including “those so over-diverted as to no longer flow, those enclosed within pipes and buried under layers of concrete, and those so polluted as to no longer sustain life.” In recognizing these tragedies and defining a new rights-based path forward, we hope to protect other rivers from similar fates.

What’s Next?

Parallel to its Universal Declaration of River Rights, ELC is launching several related initiatives, including working with local partners to secure legal rights for three rivers in Mexico, starting with the Magdalena River in Mexico City. The Magdalena River is Mexico City’s last and only free-flowing river. This is only astounding against the context that Mexico City once had 45 living rivers – now confined to underground pipes and buried under concrete.

To understand what happened to the other rivers, and why the Magdalena River needs recognition of its fundamental rights, it’s important to briefly review history. Almost 700 years ago, the Aztecs founded the city-state of Tenochtitlan in the middle of Lake Texcoco. Here they created effective civil engineering works – including both causeways and aqueducts connecting their island capital to the mainland, as well as lengthy dikes separating the fresh water lakes from the brackish Lake Texcoco, which surrounded the city. The Spaniards, however, let those works fall into ruin while deforesting the surrounding hillsides and filling Lake Texcoco. This contributed to major flooding in 1555, 1580, and 1604. The city was actually underwater (continuously!) from 1629 to 1634.

After several unsuccessful flood control efforts, they started building a massive canal in 1788, which provided some flood relief but did not solve the problem.[10] Although a major engineering feat and symbol of civic pride, part of the reason the 29-mile-long Grand Canal didn’t work is because it was based on gravity. And Mexico City, a mile-and-a-half above sea level, was sinking.[11] Home to 21 million people, who together consume nearly 287 billion gallons of water each year, the city has sunk more than 32 feet in the last 60 years because 70 percent of the city’s water is extracted from its underlying aquifer.[12] Mexico City continues to sink at a rate of 3 feet per year.[13]

Which brings us back to the Magdalena River. While for hundreds of years Mexico (and all other nations) have tried to engineer and control its waterways, these efforts have failed to fulfill their goals of thriving communities. Instead, human and natural communities suffer from water pollution, reduced flows and other negative impacts. We must instead return to our roots and begin to live in harmony with our rivers, restoring them to health. Establishing rights for Mexico’s rivers – including those rights contained within the Universal Declaration of River Rights – is the first step to doing so.  

(Click here to read more about our efforts to establish legal rights for the Magdalena River and two other waterways in Mexico, the Atoyac and San Pedro Mezquital.)

Join the Movement

We need your help to secure rights for all rivers worldwide! Here is how you can help today:

1.     Donate to ELC

2.     Volunteer with ELC

3.     Contact ELC if you want to work on your own river rights campaign

4.     Have your organization sign the Declaration of River Rights document

5.     Connect with us on social media and sign up for our newsletter

Update: Please also consider donating to earthquake recovery efforts in Mexico, where ELC’s partners are fighting for the rights of nature and many other social causes.

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[1] https://books.google.be/books/about/Should_Trees_Have_Standing.html?id=0aZoAgAAQBAJ&source=kp_cover&redir_esc=y

[2] https://celebratewcffg.files.wordpress.com/2013/09/rights-of-nature-for-wcffg.pdf

[3] https://celebratewcffg.files.wordpress.com/2013/09/rights-of-nature-for-wcffg.pdf

[4] https://news.mongabay.com/2017/05/colombias-constitutional-court-grants-rights-to-the-atrato-river-and-orders-the-government-to-clean-up-its-waters/

[5] https://www.theguardian.com/world/2017/mar/16/new-zealand-river-granted-same-legal-rights-as-human-being

[6] https://news.mongabay.com/2017/05/colombias-constitutional-court-grants-rights-to-the-atrato-river-and-orders-the-government-to-clean-up-its-waters/

[7] https://news.mongabay.com/2017/05/colombias-constitutional-court-grants-rights-to-the-atrato-river-and-orders-the-government-to-clean-up-its-waters/

[8] Flows must, at minimum, be sufficient to maintain the ecosystem health of the entire river system. In addition, rivers – not people – own the water that flows within them.

[9] These include flooding, moving and depositing sediment, recharging groundwater, providing adequate habitat for native flora and fauna, and other essential functions.

[10] http://geo-mexico.com/?p=3890

[11] https://www.bostonglobe.com/news/world/2017/02/18/climate-change-turns-mexico-city-into-parched-and-sinking-capital/LE5UvEifMiECWPea2JKm8M/story.html

[12] https://www.ecowatch.com/why-this-city-of-21-million-people-is-sinking-3-feet-every-year-1882187727.html

[13] http://geo-mexico.com/?p=6229

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.”

How Rights of Nature Will Help Restore Mexico City’s Rivers

Image:  Global Water Dances

By Darlene Lee

What is Earth Law?

A growing body of law called Earth Law is emerging as a solution to today’s environmental crisis. Earth Law represents a move from a human-centered legal system to one that serves all life on Earth. Achieving this paradigm shift requires securing fundamental rights for nature. To give a few examples, securing rights for nature would mean that rivers have a right to clean water and adequate flows, and ecosystems have a right to integral health free from pollution. This paradigm shift would also grant nature standing to defend its rights in court, just like humans and corporations.

“In the face of climate change and other enormous environmental challenges, our future as a species depends on those people who are creating the legal and political spaces within which our connection to the rest of our community here on Earth is recognized,” notes Cormac Cullinan in his article “If Nature Had Rights.”

Mexico City creates a new constitution recognizing Earth Law

In January 2017, Mexico City adopted rights of nature language into its new constitution. Article 13 of the constitution, called the Carta Magna, proclaims: “The right to the preservation and protection of nature will be guaranteed by Mexico City authorities in the scope of their competence, always promoting citizen participation in this subject.” In preparation for the inclusion of such language, Mexico hosted the First Forum on the Rights of Nature in the summer of 2016, a large event that welcomed 150 international activists, artists and organizations all focused on achieving environmental justice. Among these organizations were the World Conscious Pact, Derechos de la Madre Tierra (Rights of Mother Earth) of Mexico and Organi-K.

The push to preserve the integrity of ecosystems comes not just from the people of Mexico’s 165 million hectares of farm and forest land, but from its urban centers as well. Much like Washington, D.C., Mexico City is a progressive hot spot where citizens advocate for continued evolution of governing laws. For decades Mexico City, like Washington, enjoyed the unique status of a Federal District — not just a city, but not exactly a state either. While D.C. gained the right to control many of its own affairs via a mayor and city council in 1964, Mexico City did not elect a mayor until 1997.[1] Even more recent is the city’s ability to draft its own constitution, an opportunity that sprung from the push to make Mexico City a “federal entity” rather than a district. Unlike Washington, D.C., Mexico City essentially won statehood in 2013.

With Mexico City’s newfound autonomy came a chance to put the power in the hands of the nearly 9 million people who call “la Ciudad de Mexico” home. In an unprecedented move, Mexico City’s mayor, Miguel Ángel Mancera, opened the floor to ideas from the public via a simple Change.Org petition format. Environmental action gained a prominent seat at the constitutional drafting table, amongst other progressive causes such as LGBT and animal rights. One participant saw his petition for green space per capita requirements go from 600 to 10,000 signatures nearly overnight, earning his ideas an official place in the constitutional text. The crowd-sourced ideas were reviewed by a diverse panel of legal experts, policy advisors and even artists and activists. This panel drafted the Carta Magna based on these ideas.

The Campesino Movement gave these goals added momentum. The Campesinos are a collective of family-based farmers worldwide who advocate for sustainable efforts to curb the destruction of the land from activities such as fracking and mining. The Campesinos (taken from the Spanish word for “peasants” or “oppressed farmers”) have grown quickly by combining deep-rooted values of indigenous peoples and rural farmers with modern outreach techniques, such as social media and online press. Though largely ignored by government and corporations, the Campesino movement has helped popularize the nature’s rights and community rights movements. They have also connected famers with environmental allies across Mexico and Latin America to seek action beyond their national borders – for example, by appealing to the U.N. to support farmers against businesses, governments and cartels that threaten their health and livelihoods.

With the territory being home to an estimated 12 percent of the planet’s biodiversity,[2] most of Mexico’s population remains closely connected with nature, helping fuel the development of a fervent environmental movement. While subsistence farmers and indigenous people are often amongst the most economically disadvantaged in the nation, it is the encroachment of modern monoculture farming and big agri-business that threatens to truly strip them of their limited wealth. Earth Law becomes a way in which their voices can be heard and accounted for, and a way to codify and safeguard natures’ best interests – and as a result, theirs as well.

Mexico City is not the first to include rights of nature in its constitution. In 2008 Ecuador approved a new constitution that featured articles granting rights to nature and setting a precedent for their defense.[3] Ecuador’s constitution states that nature “has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution.” In 2012, Bolivia followed suit by passing a national law recognizing the rights of nature. The legislation states: “Mother Earth has the following rights: to life, to the diversity of life, to water, to clean air, to equilibrium, to restoration, and to pollution-free living.”[4]

Recognizing the rights of rivers

The year 2017 has been marked by new legal rights for rivers. New Zealand’s parliament formally enacted a treaty in March that recognized the Whanganui as a legal person with fundamental rights, including the right to sue, making it the first river in the world to gain recognized legal rights.[5] Just five days later, the Uttarakhand high court in India recognized two rivers (the Ganga and Yamuna) as “living entities” with fundamental rights, also allowing designated humans to represent the rivers in court and file complaints on the rivers’ behalf.[6] And most recently, in May 2017, Colombia’s Constitutional Court granted rights to the Atrato River[7] and ordered the government to clean up its waters.

To continue the momentum of new rivers gaining legal rights, ELC is developing a Universal Declaration of River Rights. This document recognizes that legal rights for rivers can mean a broad range of things, but at its core includes:

·      the right to flow,

·      the right to perform essential functions within its ecosystem,

·      the right to be free from pollution,

·      the right to feed and be fed by sustainable aquifers,

·      the right to native biodiversity, and

·      the right to restoration.

Legally, implementing these rights means that rivers will be protected aside from their utility to humans. It will also mean that the rights of a river – those necessary to achieve healthy waterways – will be enforceable by courts on behalf of the river itself. And these rights would apply not only to a river, but also to the river basin of which a river is a part.

Parallel to the Declaration, ELC launched a campaign to secure legal rights for the Magdalena River (or “rio Magdalena”) in Mexico City. This campaign draws from the rights of nature provision in Mexico City’s new constitution. It also builds off the efforts of those organizations tirelessly working to protect Mexico’s waterways and environment. Already, ELC is partnering with many of these groups, including Cuatro al Cubo, Organi-K, Dale la Cara al Atoyac, Nuiwari, A.C. and a myriad of others.

How did the Rio Magdalena come to be Mexico City’s last free-flowing river? 

The Rio Magdalena is Mexico City’s last and only free-flowing river, from an original host of 45 living rivers. The Aztec capital of Tenochtitlan was built in 1325 on a network of islands, sitting on Lake Texcoco. There were dikes and canals, and the Aztecs planted crops on man-made floating gardens called chinampas. The lake provided the Aztecs with a line of defense, and the chinampas provided sustenance. The central idea revolved around living with nature.

Then the conquering Spaniards waged war against water, determined to subdue it. They replaced the Aztec systems with streets and squares. They drained the lakes and cleared forest land. Soon, the city suffered from flood after flood, including one that flooded the city for five straight years.[8]

The Grand Canal, finished in 1894, was supposed to fix all the flooding. And until 1910, it worked as designed – purely by gravity. Over the next five decades, however, its inclination declined to 10 centimeters per kilometer due to land subsidence of seven meters. Several large pumps were installed in an attempt to maintain its capacity. Due to further land settlement, the inclination in the Grand Canal became zero by 1990 and negative by 2000.[9]

One of the most serious problems resulting from subsidence is the lowering of the elevation of Mexico City relative to Texcoco Lake – the natural low point of the southern portion of the basin. In 1900, the bottom of the lake was three meters lower than the median level of the city center. By 1974, the lake bottom was two meters higher than the city. These changes have aggravated the flooding problem and are reflected in the evolution of the complex drainage system to control flooding.[10]

In what was once a water-rich valley, Mexico City now must import over a third of its water from increasingly remote sources. Due to leaks and pilfering another 40 percent is lost when the water runs through 8,000 miles of pipes. Pumping all that water more than one mile uphill consumes roughly as much energy as does the entire metropolis of Puebla, a Mexican state capital with a population akin to Philadelphia’s. [11] Despite this, over a third of residents must hire water trucks or “pipas” to deliver drinking water since it’s not available through their taps.[12]

What’s next for the Magdalena and other rivers?

ELC wants to reverse the narrative of Mexico City’s waterways from one of degradation and loss to one of restoration, harmony with nature and thriving community life. We believe that establishing legal rights for the Magdalena is the first step towards achieving that vision. Success means the Magdalena can also serve as a model for additional campaigns to establish legal rights for rivers in Mexico, North America and worldwide.

Here is what’s in the pipeline for ELC to achieve legal rights for the Magdalena and other waterways:

·      Forum on river rights: A Forum on the Rights of Rivers is being held in Puebla, Mexico (a few hours from Mexico City) from November 11-13, 2017. Here experts, activists, government and community members will explore global trends in legal rights for rivers and outline a future in which Mexico’s rivers have rights as well. Earth Law Center will be in attendance speaking on its Universal Declaration of the Rights of Rivers and the Magdalena River. Email gwilson@earthlaw.org if you are interested in attending.

·      Rights for two other rivers: In addition to the Magdalena, ELC and partners are seeking fundamental rights for two other rivers in Mexico: the Atoyac and the San Pedro Mezquital. The Atoyac is one of the most polluted rivers in Mexico, while the San Pedro Mezquital is sacred to the Wixárika people and is being threatened by a destructive dam project. Stay tuned for details about public events in support of these campaigns.

·      Building the river rights movement: There are many ways that you can support ELC and help us achieve rights for rivers in Mexico and worldwide.

1.     Donate to ELC

2.     Volunteer with ELC

3.     Connect with us on social media and sign up for our newsletter

4.     Contact ELC if you want to work on your own river rights campaign

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[1] https://en.wikipedia.org/wiki/History_of_Mexico_City

[2] http://geo-mexico.com/?p=2765

[3] https://news.mongabay.com/2017/05/colombias-constitutional-court-grants-rights-to-the-atrato-river-and-orders-the-government-to-clean-up-its-waters/

[4] http://www.huffingtonpost.com/peter-neill/law-of-mother-earth-a-vis_b_6180446.html

[5] https://www.theguardian.com/world/2017/mar/16/new-zealand-river-granted-same-legal-rights-as-human-being

[6] http://www.smithsonianmag.com/smart-news/ganges-and-yamuna-rivers-given-rights-people-india-180962639/

[7] https://news.mongabay.com/2017/05/colombias-constitutional-court-grants-rights-to-the-atrato-river-and-orders-the-government-to-clean-up-its-waters/

[8] https://www.nytimes.com/interactive/2017/02/17/world/americas/mexico-city-sinking.html?_r=0

[9] https://en.wikipedia.org/wiki/Water_management_in_Greater_Mexico_City

[10] https://www.nap.edu/read/4937/chapter/4#14

[11] https://www.nytimes.com/interactive/2017/02/17/world/americas/mexico-city-sinking.html?_r=0

[12] http://www.hiddenhydrology.org/category/city/mexico-city/

If Corporations Have Rights, Shouldn’t Nature Too?

Image: public-domain-image.com

By Alyssa Wethington and Helen Louis George

If Earth’s 4.6 billion years were scaled down to 46, humanity would be 4 hours old. In the one minute since the industrial revolution we’ve lost 50 percent of the world’s forests, [1] endangered 75 percent of coral reefs, and overfished 90 percent of fish stocks.[2] Clearly something is out of whack.

Despite increased efforts to protect the environment, the destruction continues. To restore balance, nature needs legal rights too. In some places it is already happening.

In America, the passing of the Biodiversity and Rights of Nature Ordinance in Santa Monica[3] means that local community residents and other stakeholders can directly sue to protect the municipality’s natural environment. Elsewhere in the world, courts have recognized legal rights for four major rivers; the Whanganui in New Zealand, the Ganges and Yamuna in India, and the Atrato in Colombia. Going forward, anyone who damages these entities (which now hold their own legal rights) will be treated in law as if they have injured a person.

What are rights for nature?

Rights of nature is a movement committed to securing legal rights for nature. It shares a perspective with the many indigenous cultures that believe all living things are interconnected. We are not separate to nature, we are part of it, connected to every living thing. Rights of nature seeks to expand justice until all life on Earth is protected by the law.

As with human rights, rights of nature holds that nature has intrinsic rights to exist, to thrive, and to evolve. Unlike the current environmental laws, rights of nature does not see nature as the property of humans or as existing only to satisfy human wants. Nature does not exist simply to be a resource for us, but has its own rhythms and needs. In a rights of nature legal system, we — the people — have the legal authority and responsibility to enforce these rights on behalf of ecosystems.[4]

What are rights for corporations?

Rights for non-humans exist already. Around the world, corporations maintain many of the rights assigned to individual people. In its most general sense, corporation refers to a group of people acting as a single entity for a designated purpose. It’s likely the Catholic Church was one of the first corporations[5]. Acting as a single entity to ensure resources remained in the Church rather than with individuals was crucial to its survival. The word corporation applies to everything from nonprofits to startups to giant multinationals.

Of course, we know a corporation is not really a person in the same way as a human. Corporations don’t take walks in the park or settle in with popcorn on movie night. They also don’t go to jail when they do something criminal. Yet in the eyes of the law, corporations enjoy many of the same rights and protections afforded to individuals  — including free speech and religious expression. In the U.S. in particular, this useful legal fiction of a corporation as a single legal person, has continually expanded. Over the past 200 years, and particularly in the last five, the Supreme Court has repeatedly found that not only are corporations people, but also that being people gives them the same constitutional rights as other Americans.[6]

A 2013 report from the Congressional Research Service details the constitutional protections afforded to corporations:

“Corporations have no Fifth Amendment privilege against self-incrimination. On the other hand, the courts have recognized or have assumed that corporations have a First Amendment right to free speech; a Fourth Amendment protection against unreasonable searches and seizures; a Fifth Amendment right to due process and protection against double jeopardy; Sixth Amendment rights to counsel, jury trial, speedy trial, and to confront accusers, and to subpoena witnesses; and Eighth Amendment protection against excessive fines.”[7]

How are rights for nature and rights for corporations connected?

Let’s start by establishing that corporate activity requires natural resources: fuel for transport, raw materials for manufacture, energy to keep the lights on, at the minimum. Of course some industries use nature more intensively than others;  just 100 fossil fuel using companies produce 71 percent of the world’s carbon emissions.[8] In any case, in all these scenarios one party has rights (the corporation) while the other party does not (nature). As a result, one party consistently gets what it wants, while the other party suffers without possibility of defense or compensation.

So if corporations enjoy the rights, privileges, and protections granted to individuals under the Constitution, shouldn’t nature get the same rights too?

Experts argue that the 6th Mass Extinction has begun with animal species disappearing at an accelerating rate due to a combination of habitat destruction, climate change, and pollution. Experts also predict that virtually all fish stocks will be commercially depleted by 2048. Population growth and global agriculture cause some scientists to predict serious water shortages well before 2048. Although many remain optimistic that technology will save the day, humans haven’t figured out how to replenish many of the world’s depleted resources. Once fish go extinct, they’re gone forever.

Why the focus on corporations, you might ask. An environmental impact report from the United Nations analyzed the activities of the 3,000 biggest public companies in the world and found the estimated combined [environmental] damage was worth US$2.2 trillion every year.[9] More than 60 percent of Americans are dissatisfied with the size, power, or influence of major corporations and the federal government.[10]  Worse still, these environmental damages cost the global economy an estimated US$4.7 trillion per year in health and social costs, lost ecosystem services, and pollution.[11]

How do we give nature a seat at the table?

To have a real chance at reversing the damage that’s been done nature needs rights too, alongside corporations. A balance of rights creates an opportunity for sustainable relationships. When a conflict arises between corporate interests and nature’s interests, the legal system can step in because both parties have legal rights. The courts can help resolve these conflicts since rights conflicts happen all the time.

Recognizing the intrinsic rights of nature will also help counter the trend of corporations suing governments for protecting people and nature. One example of this is Bayer Syngenta suing the European Union for its proposed ban on three neonicotinoid pesticides linked to the deaths of millions of bees.

Nature’s rights benefit human rights. Where the environment is harmed, people suffer from disease, violence, and land loss. ELC has published two reports highlighting the deep connection between nature’s rights violations and human rights violations.[12]

What’s the evidence for there being a rights of nature movement?

The rights of nature movement saw its first big win in 2008, when Ecuador revised its constitution to include rights of nature, stating that nature, “has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution.”[13] The Community Environmental Legal Defense Fund (CELDF) worked with Ecuador to establish those rights of nature laws, and has been fighting since 1995 to help municipalities and townships achieve self-governance that includes rights of nature.[14]

Over 40 municipalities have partnered with CELDF to pass rights of nature laws. These include Grant Township in Pennsylvania. Their charter reinstates a ban on injection wells, contradicting a recent ruling from a federal judge that had overturned portions of earlier legislation. The people of Grant Township spoke loud and clear: they have rights, they will protect those rights, and nobody — not a corporation, not the state government, and not a federal judge — has the authority to tell them to accept toxic frack waste in their community.[15]

CELDF works on rights of nature initiatives in India, Nepal, Australia, Cameroon, Colombia and the United States.  

In 2011, Bolivia amended its Constitution to include rights of nature, followed by Mexico City in 2017. For a complete list of global initiatives around rights of nature, see the United Nations Harmony with Nature initiative’s updates from around the world: http://www.harmonywithnatureun.org/rightsofnature.html.

Earth Law Center has launched multiple initiatives to secure legal rights for rivers in Mexico, the Great Lakes, the Patagonian Sea, the Whale and Dolphin Sanctuary in Uruguay, as well as in the municipality of San Francisco.

The Global Alliance for Rights of Nature hosts a Rights of Nature Tribunal in Bonn, Germany, in November 2017 to investigate cases of environmental destruction and violation of the rights of nature.

Nature's Rights in the UK has launched a European Citizens' Initiative (ECI) — a democratic mechanism open to citizens of the EU — to propose to add the rights of nature to the EU legislative agenda.[16]

In the Peruvian and Ecuadorian Amazon the Pachamama Alliance is working with indigenous tribes to permanently protect the Sacred Headwaters region. When this is achieved nearly 50 million acres of rainforest will be under indigenous management. The management will oversee the key social, economic, and political aspects of the area and place a complete ban on all industrial extractive activities.[17]

Show your support for nature

According to the World Economic Forum, climate change ranks within the top ten biggest global challenges.[18] Tackling climate change may seem daunting, but consider how much people have already changed the world. The abolition of slavery, women’s suffrage, civil rights, and LGBT+ rights all come from people calling for change.

You have an opportunity to join the Earth Law movement:

• share Earth Law news with your friends
• join your local rights of nature groups
• email info@earthlaw.org to learn about volunteering with Earth Law Center.

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Write to your government representatives.

Here is a suggested message that you might like to send your government representatives.

Dear ______________

The law community has found a pragmatic solution to the environmental crisis. I would like you to learn about this great idea and support it today.

Earth Law will help ensure a future for your voters’ grandchildren by giving nature the same rights as people and corporations. You may have heard Earth Law described as “rights of nature.” In an Earth Law system of jurisprudence, nature will have a voice in the law courts.

• There is no time to lose. Scientists predict that a quarter of mammals and 40 percent of amphibians may go extinct in the foreseeable future. This extinction rate is a thousand times the average across history.
• The World Bank recently studied the potential impacts of a 4 degree centigrade increase (an increasingly likely scenario). It found it would create a “transition of the Earth’s ecosystems into a state unknown inhuman experience.” The World Bank also warns of “unprecedented heat waves, severe drought, and major floods.

What can you do in government to stabilize this unstable situation? You can tell your colleagues about Earth Law. By doing so, you will promote stability.

Earth Law is a practical solution that will protect communities by creating balance between corporations and nature. It will strengthen the economy by legislating for sustainability. It will safeguard the environment we all depend on.

Earth Law is not a new idea. It is a reality in parts of the United States and elsewhere.

The idea has been tried and tested by more than thirty US municipalities and Mexico City. All have included references to rights of nature in their laws. Earth Law is already enshrined in the national constitutions of Ecuador and Bolivia.

You may have heard about Santa Monica, California. It recently adopted a Sustainability Rights Ordinance; in part to protect its Sustainable City Plan from destructive economic interference. The ordinance states that, “natural communities and ecosystems possess fundamental and inalienable rights to exist and flourish,” and provides citizens with enforcement authority to protect these rights.

• Thanks to Earth Law, the people of Santa Monica possess rights to clear air; a sustainable food system that provides healthy, locally grown food; clean water from sustainable sources; marine waters safe for recreation; and a sustainable energy future based on renewable energy sources.
• Santa Monica’s new law also states that “corporate entities … do not enjoy special privileges or powers under the law that subordinate the community’s rights to their private interests.”

Together we face an uncertain future but there is hope. Earth Law is a positive, forward thinking, and clear headed response to a crisis situation. Please learn more about it and do what you can to support it in government.

With thanks,

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[1] http://greenpeaceusa.tumblr.com/post/93508666790/the-earth-is-46-billion-years-old-scaling-to-46

[2] https://www.ecowatch.com/one-third-of-commercial-fish-stocks-fished-at-unsustainable-levels-1910593830.html

[3] https://www.earthlawcenter.org/land-ordinances/

[4] http://therightsofnature.org/what-is-rights-of-nature/

[5] http://www.npr.org/2014/07/28/335288388/when-did-companies-become-people-excavating-the-legal-evolution

[6] https://consumerist.com/2014/09/12/how-corporations-got-the-same-rights-as-people-but-dont-ever-go-to-jail/

[7] https://consumerist.com/2014/09/12/how-corporations-got-the-same-rights-as-people-but-dont-ever-go-to-jail/

[8] https://www.theguardian.com/sustainable-business/2017/jul/10/100-fossil-fuel-companies-investors-responsible-71-global-emissions-cdp-study-climate-change

[9] https://www.theguardian.com/environment/2010/feb/18/worlds-top-firms-environmental-damage

[10] http://www.gallup.com/poll/159875/americans-similarly-dissatisfied-corporations-gov.aspx

[11] http://www.planetexperts.com/companies-pay-environmental-damage/

[12] https://www.earthlawcenter.org/co-violations- of-rights/?rq=Co- Violations

[13] https://dotearth.blogs.nytimes.com/2008/09/29/ecuador-constitution-grants-nature-rights/?mcubz=0

[14] https://celdf.org/community-rights/

[15] http://celdf.org/wp-content/uploads/2015/12/Susquehanna-Fall-2015.pdf

[16] http://www.theecologist.org/essays/2988863/natures_rights_a_new_paradigm_for_environmental_protection.html

[17] https://www.pachamama.org/about/accomplishments

[18] https://www.weforum.org/agenda/2016/01/what-are-the-10-biggest-global-challenges/

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/

Earth Law Means Rights for All (Including Humans)

By Darlene Lee

Origins of Earth Law

The oldest hominid (a term scientists apply to humans and their two-legged pre-human predecessors) is 7 million years old.[1] Agriculture appeared only 12,000 years ago[2]. That means in the intervening millions of years, humans moved across the land, living in a way that left the lightest footprint on the environment.

From these gatherer-hunter roots, Traditional Ecological Knowledge (TEK) of Indigenous peoples of the world developed. Indigenous people are people defined in international or national legislation as having a set of specific rights based on their historical ties to a particular territory, and their cultural or historical distinctiveness from other populations that are often politically dominant.[3]

TEK acknowledges the intrinsic rights of all living systems to exist, persist, and flourish. This sense of place and concern for individuals leads to two basic TEK concepts: 1) all things are connected and 2) all things are related. Humans are not the center of the universal web, just one strand of many. Indigenous cultures view both themselves and nature as part of an extended ecological family that shares ancestry and origins.[4]

Rediscovery of Earth Law

In contrast, the ability of western scientific and technological advances to manipulate everything within reach (including each other) seems sourced from our ability to divest ourselves from all living systems. A Post-Enlightenment Western scientific worldview uses terms such as “natural resources” to describe everything other than humans and man-made objects. This perspective holds the other as property and therefore something to be used to our advantage. Even words like “protect” and “conserve” imply ownership, apart and separate.

Now, the world at large seems to be rediscovering indigenous wisdom by coming around to the idea that humans are part of a complex whole – not outside and independent of it. This includes an awareness that nature’s connection to humans determines the continued health and well-being of humans. According to the Dalai Lama, “Today we understand that the future of humanity very much depends on our planet, and that the future of the planet very much depends on humanity. But this has not always been so clear to us. Until now, you see, Mother Earth has somehow tolerated sloppy house habits. But now human use, population, and technology have reached that certain stage where Mother Earth no longer accepts our presence with silence. In many ways she is now telling us, ‘My children are behaving badly,’ she is warning us that there are limits to our actions.”[5]

Earth Law (also known as Wild Law or Earth Jurisprudence, from the book by Cormac Cullinan) shares similar perspectives on nature as the Indigenous worldview. Christopher D. Stone’s Should Trees Have Standing first argued for rights of nature in 1972, saying, “I am quite seriously proposing that we give legal rights to forests, oceans, rivers and other so-called ‘natural objects’ in the environment – indeed, to the natural environment as a whole.”[6]

While a singular view of nature does not exist across the myriad indigenous cultures, it’s useful to look for commonalities across a specific group – such as Native American cultures – for a clue about the orientation of indigenous cultures towards nature. Key commonalities include:

·         Nature is something we live within and as a part of it. No essential separation, no transcendental dualism, no Enlightenment search for objectivity, no Puritan fear of dangerous, chaotic nature, no distant observation in Romanticism.

·         Nature is the location of spirituality, both in individual beings (usually animals) and in a more general sense of the sacred.

·         Nature’s spiritual value calls for reverence, respect and humility in our relationship with it.[7]

Earth Law is a philosophy of law and human governance that is based on the idea that humans are only one part of a wider community of beings and that the welfare of each member of that community is dependent on the welfare of the Earth as a whole. It states that human societies will only be viable and flourish if they regulate themselves as part of this wider Earth community and do so in a way that is consistent with the fundamental laws or principles that govern how the universe functions, which is the ‘Great Jurisprudence’.[8]

In If Nature had Rights, a 2008 article in Orion Magazine, author Cormac Cullinan notes, “If we accept [Thomas] Berry’s propositions that the Earth is a communion of subjects, and that rights originate where the universe originates and not from human jurisprudence, it means we cannot claim that humans have human rights without conceding that other members of the Earth Community also have rights. In other words, the rights of the members of the Community are indivisible – there cannot be rights for some without there being rights for all.”[9]

In a 1972 case Sierra Club v. Morton, The Walt Disney Company sought to build a $35 million ski resort in the subalpine glacial valley of Mineral King, in California. The project had received all the permits to go forward, and Walt Disney had personally begun buying private property around Mineral King, when Sierra Club Legal Defense Fund (now called Earthjustice) sued the United States Secretary of the Interior in San Francisco federal court to block development of the ski resort. Although Sierra Club lost the battle, they won the war. The case moved forward after Sierra Club amended its complaint and Governor Regan withdrew his support. Mineral King was ultimately never developed and was subsequently absorbed into Sequoia National Park.

Justice William O. Douglas wrote a now famous dissenting opinion which states in part:

The voice of the inanimate object, therefore, should not be stilled. That does not mean that the judiciary takes over the managerial functions from the federal agency. It merely means that before these priceless bits of Americana (such as a valley, an alpine meadow, a river, or a lake) are forever lost or are so transformed as to be reduced to the eventual rubble of our urban environment, the voice of the existing beneficiaries of these environmental wonders should be heard … That is why these environmental issues should be tendered by the inanimate object itself. Then there will be assurances that all of the forms of life which it represents will stand before the court – the pileated woodpecker as well as the coyote and bear, the lemmings as well as the trout in the streams. Those inarticulate members of the ecological group cannot speak. But those people who have so frequented the place as to know its values and wonders will be able to speak for the entire ecological community.

Earth Law in Practice

On March 14, 2017, the Whanganui in New Zealand became the first river in the world to gain legal rights. The Whanganui Iwi (tribes) have fought for recognition of their relationship to the river since the 1870s, so the decision brings New Zealand’s longest running litigation in history to a close.[10] New Zealand's attorney general Chris Finlayson was quoted in the New York Times as acknowledging the Maori perspective as formative in the granting of rights to these natural entities, saying, “In their worldview, ‘I am the river and the river is me.” He added adding that “Their geographic region is part and parcel of who they are.”[11]

Rule of law is a framework based on rules meant to govern all individuals regardless of their stature or position. Rule of law is defined as the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws. Since its inception, the law has not just enabled, but helped further social evolution in the way that crampons assist the mountain climber. The law provides guidelines and support. The law also sets a baseline, to ensure that behavior does not fall below that (and when it does, there are consequences).  Law can be one of the most useful tools in our drive to stop and reverse environmental destruction.

The Whanganui is by no means alone. In 2008, Ecuador became the first country to include Rights of Nature in its Constitution. In 2010, Bolivia passed its Law of Rights of Mother Earth. The Atrato River in Colombia gained legal rights as a result of a case presented by the Colombian NGO Tierra Digna, Afro-Colombian organizations, and indigenous organizations.[12]

The amendment to the Ecuadorian Constitution was sourced from indigenous cultural perspectives. Traditional indigenous cultures prefer the term Mother Earth in referring to nature and our planet as it connotes the sacred relationship of all life. The reference employed by the Ecuadorian Constitution is "Nature, or Pachamama (Quechua for Mother Earth) where life is reproduced and exists".[13] The Kichwa notion of “Sumak Kawsay” or “buen vivir” in Spanish translates roughly to good living in English. It expresses the idea of harmonious, balanced living among people and nature. The idea centers on living “well” rather than “better” and thus rejects the capitalist logic of increasing accumulation and material improvement. Nature is conceived as part of the social fabric of life, rather than a resource to be exploited or as a tool of production. The Preamble of the Ecuadorian Constitution reads:

“We women and men, the sovereign people of Ecuador recognizing our age-old roots, wrought by women and men from various peoples, Celebrating nature, the Pachamama (Mother Earth), of which we are a part and which is vital to our existence…. Hereby decide to build a new form of public coexistence, in diversity and in harmony with nature, to achieve the good way of living, the sumac kawsay.”[14]

Conclusion

We have the opportunity now to shift the paradigm, from one in which everything and everyone can be considered property to one in which all living systems and beings are equal partners. We can do this by legally recognizing the inherent value and rights of the ecosystem whose support is essential to the survival of all living things on the planet (including us). This paradigm shift puts Earth at the center, with all its myriad parts as subjects within the whole. It recognizes that the biosphere called Earth has an inherent right to exist, thrive and evolve. Securing those rights in a court of law helps substantiate that shift in perspective, and gives citizens and local communities standing in the courts to defend the health and well being of living systems.

As the Cree Proverb states, “Only when the last tree has died, the last river been poisoned, and the last fish been caught will we realize we cannot eat money.” [15]

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[1] https://www.pearsonhighered.com/assets/samplechapter/0/2/0/5/0205835503.pdf

[2] https://genographic.nationalgeographic.com/development-of-agriculture/

[3] http://www.indigenouspeople.net/

[4] https://www.fws.gov/nativeamerican/pdf/tek-salmon-2000.pdf

[5] https://www.dalailama.com/messages/environment/universal-responsibility

[6] https://iseethics.files.wordpress.com/2013/02/stone-christopher-d-should-trees-have-standing.pdf

[7] https://www.uwosh.edu/facstaff/barnhill/ES-243/pp%20outline%20Native%20American.pdf

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

[9] Wild Law, page 97

[10] http://www.loc.gov/law/foreign-news/article/new-zealand-bill-establishing-river-as-having-own-legal-personality-passed/

[11] https://intercontinentalcry.org/rights-nature-indigenous-philosophies-reframing-law/

[12] https://news.mongabay.com/2017/05/colombias-constitutional-court-grants-rights-to-the-atrato-river-and-orders-the-government-to-clean-up-its-waters/

[13] https://celebratewcffg.files.wordpress.com/2013/09/rights-of-nature-for-wcffg.pdf

[14] https://intercontinentalcry.org/rights-nature-indigenous-philosophies-reframing-law/

[15] https://indiancountrymedianetwork.com/news/for-earth-day-quotable-native-wisdom-about-the-environment/

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

The Importance of the Atrato River in Colombia Gaining Legal Rights

Photo courtesy of Laura Villa

May 5th, 2017
Guest Blogger Laura Villa from Innove [i] goes behind the scenes to give us the scoop on the latest river to gain legal personhood rights.

The Atrato River has been granted legal personhood rights by the Constitutional Court in Colombia, through a partnership of many organizations including CELDF[ii]. Just a month ago, the third largest river in New Zealand (the Whanganui) and the Ganges were recognized as having legal personhood. The High Court in Colombia recognizes for the first time in its jurisprudence that a natural resource, in this case a river and its watershed, are subjects and holders of rights alone, and it is the State's responsibility to protect it.[iii]

This is so exciting for those of us working in the field. Each milestone helps pave the way for other rivers to get legal personhood, including in the United States. Earth Law seems to be an idea whose time has come. Earth Law Center[iv] defines Earth Law as “a growing body of law recognizing that the Earth has inherent rights, and that humans and nature are co-members of a larger Earth Community whose well-being is guaranteed. Rather than treating nature as “property” for human consumption, Earth Law recognizes that nature is an entity with its own rights. Nature's rights are not “given” by humans, but rather are inherent to nature’s existence – just as humans possess inherent rights to life, liberty and the pursuit of happiness.”

In his groundbreaking work, Should Trees Have Standing, Christopher Stone observes that the history of law suggests a parallel development with that of human moral development – and further, that each successive extension of rights to some entity has been “unthinkable”. He cites children, slaves, women and ethnic minorities as examples.[v]  With three different nations coming to the same conclusion about a key river in their jurisdiction, the notion of Earth Law no longer seems to be as unthinkable as it once was.

Think of when corporate personhoods, like these rivers gaining legal standing, were also considered unthinkable before it happened. Corporate entities date back to medieval times, observes Colombia law professor John Coffee, an authority on corporate law. "You could think of the Catholic Church as probably the first entity that could buy and sell property in its own name," he says.[vi]

In the case of the Atrato River, the High Court asserts that "the defendant state authorities are responsible for violating fundamental rights to life, health, water, food security, the healthy environment, culture and territory of the local ethnic communities."[vii] The Atrato River cuts through the Darien Gap, the rugged tropical jungle that straddles the border between Panama and Colombia.[viii]

The Atrato River ecosystem represents the only break in the Pan-American highway, which intended to connect Canada with Argentina but hasn´t been completed yet due to ecological concerns. Before the Atrato River flows into the Caribbean sea, it creates a swampy delta which is one of the most biodiverse wildlife ecosystems in the world. This ecosystem is also home to afro and indigenous groups and other minorities and happens to be one of Colombia´s poorest and most forgotten areas, thus rife with drug trafficking. The Atrato River has also been decimated by gold mining since Spanish colonial times.

Today, the degradation of the river and its ecosystem expands to almost 650.000 hectares and approximately 800 dredges. According to Mercury Watch, Colombia is the country with the highest rate of mercury and cyanide contamination in America, and a third of its total 180 tons per year are poured into the Atrato River.

Although water isn’t a fundamental right considered in the National Constitution of Colombia, in this case the Constitutional Court has considered it indispensable for guaranteeing the right to life, as well as essential for the environment and the life of multiple species that inhabit the planet.  The judgement said that “only an attitude of profound respect and humility with nature and its beings makes it possible for us to relate with them in just and equitable terms, leaving aside every utilitary, economic or efficient concept”.

To guarantee this historic judgement, the claiming communities represented by the Tierra Digna organization will have to create a commission of guardians with two delegates to follow up on the protection and restoration that the State must provide for the river. The Humboldt Institute and the WWF will advise this commission.

The Colombian public opinion has been favorable to the judgement of the Constitutional Court, but skeptical about its accomplishment. The reason for doubt is human rights legislation. Albeit the constitution and laws aim to protect human rights and individual freedom, indigenous leaders and journalists are still targets of killings and death threats. Colombia still appears in the top of International Amnesty and Human Rights Watch indexes. If the state cannot guarantee the traditional law in cities and municipalities where the is institutional presence, how will it fare in guaranteeing the protection and restoration of the Atrato River, located in a jungle - where the minimum living standards such as food security, fresh water, energy, health and education are not available? How will the thousands of people that depend on illegal mining in the Atrato River replace their livelihoods?

As with the Ganges and Yamuna Rivers in India, the Atrato rights declaration is a big step forward towards an earth-centered law and a sustainable planet. Nevertheless, the mechanisms for guaranteeing the implementation of this judgment presents a challenge for third world countries with more urgent issues to attend to, with very limited capacities and resources to spare. Do we need the creation of an International Earth Law Court to intervene in the ecocides that affect not only a country, but the entire planet? The consequences of the degradation and destruction of major river ecosystems around the world affect the whole world – and the biosphere we call home.

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[i] Innove is a Colombian think& do tank that promotes the social and economic transition to sustainable models through publications and projects such as “Sustainable Antioquia” a regional initiative to address the SDGs that interacts with partners at a global scale. More info:  http://innove.com.co/english/  or contact laura.villa@innove.com.co

[ii]  https://intercontinentalcry.org/colombia-constitutional-court-finds-atrato-river-possesses-rights-protection-conservation-maintenance-restoration/

[iii] http://www.elnuevosiglo.com.co/articulos/05-2017-los-derechos-del-rio-atrato

[iv] www.earthlawcenter.org

[v] https://iseethics.files.wordpress.com/2013/02/stone-christopher-d-should-trees-have-standing.pdf

[vi] http://www.npr.org/2014/07/28/335288388/when-did-companies-become-people-excavating-the-legal-evolution

[vii] https://www.google.com/search?q=google+translate&rlz=1C5CHFA_enHK547HK547&oq=google+&aqs=chrome.0.69i59j69i60l3j69i65l2.1232j0j4&sourceid=chrome&ie=UTF-8

[viii] http://www.atratoadvisors.com/atrato-river/