Mexico on the Vanguard for Rights of Nature

Rio Magdelena

By Darlene Lee

In January 2017, Mexico City changed its constitution to include rights of nature.[i] The amendment states in part that “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.”[ii]

The amendment, promoted by a citizen initiative that included nearly 150 civil society organizations, was officially launched at the first Forum on the Rights of Nature in 2016.[iii]  Here, stakeholders and environmental thinkers from throughout Mexico declared their support for harmonizing governance with nature. (The amendment was passed shortly before the 100th anniversary of the 1917 Mexican Constitution, which was established by President Venustiano Carranza during the Mexican Revolution.[iv])

Mexico City follows in the progressive footsteps of Ecuador and Bolivia. Ecuador amended its constitution to uphold the inherent rights of nature, while Bolivia also recognizes nature’s rights through two national laws. Mexico City’s deadline for implementing its new constitution is December 31st, 2020, but it’s thought it will be in effect by 2019.[v]

Building from this momentum, work to firmly establish rights of nature in Mexico continues. Earth Law Center (ELC) is partnering with local environmental and social organizations to win legal rights for the Magdalena, Atoyac and San Pedro Mezquital rivers. All three rivers face significant threats, including pollution and altered flows. And a proposed dam project will seriously damage the San Pedro Mezquital if it goes ahead.

In 2017, the Whanganui River in New Zealand was the first river in the world to secure legal rights recognition. And soon thereafter, a constitutional court in Colombia released its decision to establish legal rights for the Atrato River. ELC is honored to work with local advocates to bring the same change to Mexico.  

What are Rights of Nature?

A primary purpose of our legal system is to stop humans from violating the rights of other humans. Now laws are beginning to prohibit humans from violation the rights of nature, as well. When the law recognizes ecosystems as right-bearing entities, ecosystems – represented in court by local people – will be able to seek legal recourse against anyone who harms their rights. ELC seeks to establish this new paradigm.

The rights of nature has several advantages over our current legal paradigm:

• Advancing nature’s rights will correct the gaps in our legal structures that allow natural systems to be abused for profit.
• A rights of nature approach promotes the idea that humans must respect the Earth’s systems, which would benefit the natural world and humanity as a whole.
• Legally recognizing that nature has an inherent right to thrive will promote whole ecosystem health, rather than allowing nature to teeter on the brink of extinction.

Finally, in regards to waterways, by recognizing the inherent rights of rivers and streams, we can begin to repair the damage caused by institutionalized water overuse. We can also ensure clean and abundant fresh water for future generations.

What are the Rights of Rivers in Particular?

To define the rights to which all waterways are entitled, ELC analyzed the ecological principles of river health and the legal precedent for recognizing the rights of rivers worldwide. We concluded that a river or waterway possesses, at minimum:

1. the right to flow;
2. the right to perform essential functions within its ecosystem;
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.
7. These are the rights enshrined in ELC’s Universal Declaration of the Rights of Rivers. It is our hope that this document will serve as a baseline for governments to protect the rights of rivers worldwide.

Why Doesn’t the Current System Protect Rivers?

Market theory dictates how water is allocated, resulting in a system where those with the means to buy more water have a greater share of the rights to that water.  This system creates several problems:

• Allocating water, a non-substitutable resource, based on an individual’s wealth necessarily leads to an unfair outcome.  Wealthy citizens, corporations and municipalities have the power to demand more water for less essential purposes. Meanwhile, poorer populations, who rely primarily on local infrastructure to provide basic essentials like clean drinking water, do not receive their fair share. 
• In a system that forces different parties to compete against each other for rights to water, integral groups are excluded from the water allocation process – namely, the waterways themselves. This is because our legal systems generally classify rivers and other waterways as property. As property they have no recourse when confronting infringement of their fundamental rights. 

Because natural waterways are not yet rights-holding entities, they have no legal recourse to claim a stake in the outcome of water rights distribution. The rivers keep the freshwater that maintain healthy ecosystems and essential functions, but they have no say in how humans use their waters. Thus rivers are without the ability to claim a reasonable and sustainable share of the water for themselves. 

Mexico City’s Last Free Flowing River: The Magdalena Seeks Legal Rights

Metro Mexico City has an estimated population of 21.2 million – the most populated city in the Western Hemisphere.[i] And only one free-flowing river remains in Mexico City: the fragile Magdalena.[ii]

Mexico City used to be the Aztec city of Tenochtitlan. It was originally built on a network of lakes and floating islands. Centuries of population growth have resulted in a sinking city, extensive flooding and almost 20 percent of residents being unable to get water from their taps each day.[iii]

The Magdalena faces threats from altered flows, chemical and pathogenic contaminants, and hydraulic infrastructure (dams, diversion channels, pipelining of springs). The health of the Magdalena impacts local fragile ecosystems, including the Mexico City aquifer and forests in the Valley of Mexico.

A group of local environmental and social leaders have fought passionately for the restoration of the Magdalena River for decades. While they have made commendable progress, many of them believe that legal rights for the Magdalena River will provide the legal incentive necessary to see this river restored to health.

Upholding Legal Rights for the Atoyac River

This river, also known as the Balsas River, flows through the states of Puebla and Tlaxcala and has been ranked as one of the three most polluted rivers in Mexico. In the state of Puebla, 2.3 million people are directly affected by the contamination of the river. Each day, 146 tonnes of organic waste are dumped into it, along with 62.8 tonnes of suspended solids and 14 kilograms of heavy metals.

Pollution in Rio Atoyac, Foto: Eslmage

Threats to the river include the textile, metalworking and petrochemical industries, as well as over-diversion and dams. The restoration of this river will restore fish populations, wildlife habitat and clean water over a vast area, including within the Sierra Madre del Sur.

Environmental leaders have drawn attention to the impairment of the Atoyac River, and several positive developments have resulted. For example, Conagua (the National Water Commission) has sanctioned 34 companies for uncontrolled effluent dumping into the river. Additionally, the Council of Puebla, headed by Mayor Luis Banck, established the commitment "Vive Atoyac," which aims to recover and clean up the Atoyac River Basin in the stretch of the Municipality of Puebla over the next 15 years.

Despite these gains, the river continues to suffer from poor health. Local advocates believe that establishing rights for the Atoyac will modernize the legal dynamic between human and waterways and provide the permanent protections that this river needs.

Securing Legal Rights Recognition for the San Pedro Mezquital River

The San Pedro Mezquital River is the seventh largest river in Mexico, flowing through the western Sierra Madre into the Marismas Nacionales (the National Wetlands) Biosphere Reserve, on the coast of the state of Nayarit. As a function of its relatively pristine state, the San Pedro Mezquital crosses and nurtures the unique ecosystems of rare species, as well as unique indigenous cultures, including the Huichol People in the high sierras and the Meztitlán swamp fishermen in the mangroves of Marismas. Because of its inaccessible location, the San Pedro Mezquital has received relative protection from the anthropogenic threats experienced by other river ecosystems in Mexico.

Este vídeo es sobre Proyecto sin título

However, the proposed Las Cruces Dam threatens to fundamentally impair the San Pedro Mezquital. The dam would adversely affect fish species and agricultural needs depended upon by 12,000 families, and also destroy an indigenous ceremonial center and 14 sacred sites. The dam would also restrict the water and nutrients flow that the river carries to Marismas Nacionales, home of one of the largest mangrove forests in Mexico.

Dams alter a river’s ecosystem from one that’s cold, flowing and connected, to one that’s warm, stagnant and fragmented – with devastating consequences for wildlife. Globally, dams have been the single largest factor in plummeting freshwater fish populations, which have declined by 80 percent since 1970. Dams have also been linked directly to soil erosion, water-logging, salinization and new disease vectors.

Rights-based protections for the San Pedro Mezquital River could mean that the river has a right to flow – which may be incompatible with dam construction. Further, establishing rights for the San Pedro Mezquital River will bolster indigenous and community rights by giving local river guardians a robust ability to demand that their  free, prior and informed consent is given.

Mexican Environmentalists Hard at Work

Cuatro al Cubo ("Four to the Cube"), Organi - K, Dale la Cara al Atoyac A.C., Nuiwari, A.C., Rights of Mother Earth Mexico and many others work to advance a variety of social, environmental and urban design solutions to Mexico’s challenges, including ailing waterways. Additional groups have adjacent aims, with a focus on community health, plastic and chemical pollution, recreation, indigenous rights, urban design and many other areas.

ELC is proud to partner with these and other organizations to establish legal rights for rivers. Many of these groups were directly responsible for achieving rights of nature within Mexico City’s new constitution, and they are determined to continue the expansion of protections for Mexican ecosystems and communities. Together, we are confident that we can create an international model of success for humans and nature thriving together in harmony.

About the author: Earth Law Center (ELC) works to transform the law to recognize and protect nature’s inherent rights to exist, thrive and evolve. Earth Law Center does this by partnering with local organizations to catalyze the paradigm shift to one in which nature has a say in decisions which impact ecosystems, species and overall health and well-being.

Strengthening and Enhancing Mexican River Protection

We need your help to secure rights for these rivers in Mexico! 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

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[i] https://www.facebook.com/notes/paxamama-news/la-constituci%C3%B3n-de-la-cdmx-reconoce-que-la-tierra-est%C3%A1-viva-y-tiene-derechos/366806370372202

[ii] http://www.cdmx.gob.mx/storage/app/uploads/public/59a/588/5d9/59a5885d9b2c7133832865.pdf

[iii] https://www.facebook.com/notes/paxamama-news/la-constituci%C3%B3n-de-la-cdmx-reconoce-que-la-tierra-est%C3%A1-viva-y-tiene-derechos/366806370372202

[iv] https://blogs.loc.gov/law/2011/02/the-history-of-the-mexican-constitution/

[v] http://worldconsciouspact.org/featured-2/rights-nature-mexico-city-constitution/

[vi] http://worldpopulationreview.com/world-cities/mexico-city-population/

[vii] http://foreignpolicy.com/2017/05/31/mexico-city-last-living-river-pollution-water/

[viii] http://worldpopulationreview.com/world-cities/mexico-city-population/

How Earth Law Can Help Cetaceans in Uruguay

An Interview with Rodrigo García Píngaro

By Madeline Bol

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

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

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

ELC: So tell me more about the Sanctuary itself.

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

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

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

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

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

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

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

ELC: What threatens the cetaceans in these waters?

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

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

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

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

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

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

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

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

ELC: Why did you choose to partner with ELC?

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

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

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

ELC: How does Earth Law support the OCC cause?

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

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

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

 RGP: We are very grateful for the support of:

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

ELC: Does the Sanctuary stand alone?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ELC: What are our next steps together?

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

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

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

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

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[1] “South American Marine Diversity”

[2] The IUCN Red List of Threatened Species

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

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

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

Indigenous Perspectives at the Forefront of Environmental Jurisprudence

Photo Credit: LecomteB Creative Commons License

By Darlene Lee

In industrialized, urban society we have a tendency to see ourselves as separate to nature. Earth Law, a system of environmental jurisprudence, transforms how we think about our place on Earth. Earth Law sees humans as part of the natural world and holds that if we simply upheld the rights of rivers and forests and oceans to exist and flourish, we would go a long way to addressing many of the seemingly intractable environmental issues of our time. Carbon sequestration, fresh water, soil fertility, and wildlife populations would all increase.

While industrialized views seek to command nature, other cultures recognize and respect their dependence on nature. Many indigenous peoples view themselves as living in partnership with animals and ecosystems with care and respect. Earth Law draws inspiration from this shared worldview where humans form one part of a planetary network, connected to all.

Examples of Indigenous Perspectives on Nature

Non-Indigenous people tend to view nature as a commodity, something owned, bought, sold, and used. The language used to describe nature reflects this: natural “resource” and land “development” (as if the land remains unfinished in some way without human intervention) are only a few of the many examples.

By contrast, indigenous cultures tend to consider nature as an integral part of their community – not mere property. For example, Aboriginal peoples in Western Australia, the Palyku, have a deep relationship with the land. Ambelin Kwaymullina explains:

“For Aboriginal peoples, country is much more than a place. Rock, tree, river, hill, animal, human – all were formed of the same substance by the Ancestors who continue to live in land, water, sky. Country is filled with relations speaking language and following Law, no matter whether the shape of that relation is human, rock, crow, wattle. Country is loved, needed, and cared for, and country loves, needs, and cares for her peoples in turn. Country is family, culture, identity. Country is self.”[i]

Another example comes from Chief Seattle, a Suquamish Tribe (Suquamish) and Dkhw'Duw'Absh (Duwamish) chief:

“Will you teach your children what we have taught our children? That the earth is our mother? What befalls the earth befalls all the sons of the earth. This we know: the earth does not belong to man, man belongs to the earth. All things are connected like the blood that unites us all. Man did not weave the web of life, he is merely a strand in it. Whatever he does to the web, he does to himself. One thing we know: our god is also your god. The earth is precious to him and to harm the earth is to heap contempt on its creator.”[ii]

Traditionally, Māori believe there is a deep kinship between humans and the natural world. This connection is expressed through kaitiakitanga – a way of managing the environment. Today there is growing interest in kaitiakitanga as tribes restore their environment and their culture. Māori culture views humans as deeply connected to the land and to the natural world.

Tangata whenua – literally, people of the land – have authority in a particular place, because of their ancestors’ relationship to it. Humans and the land are seen as one, and people are not superior to nature. The natural world ‘speaks’ to humans and give them knowledge and understanding. Human life centers around aligning oneself with the natural world.[iii]

The Inuit, native peoples who have lived in the Canadian Arctic and Greenland for thousands of years, now live in the autonomous territory called Nunavut. They have both a physical and a spiritual relationship with the environment, embodied in their traditional practices of hunting and seasonal migration and interactions with the environment. In Inuit society, animals hold a central role: not only do they share the land on which the Inuit live and serve as the traditional food source; they are also present in every sphere of Inuit culture, including religion, healing, and art.[iv]

Finally, some indigenous leaders have foreseen the destruction of nature, as well as its restoration. Last century, an old wise woman of the Cree Indian nation named "Eyes of Fire" prophesied that one day, because of the white man’s greed, Earth would become ravaged and polluted, forests destroyed, birds falling from the air, waters blackened, fish poisoned and trees disappearing. The prophesy continued that Warriors of the Rainbow, keepers of all the Ancient Tribal Customs, would restore us to health and make the Earth green again. This day of awakening would see all the peoples of all the tribes form a New World of Justice, Peace, Freedom and recognition of the Great Spirit.[v]

How Earth Law Learns from Indigenous Views of Nature

Despite the growing awareness and advocacy for protecting nature, our planet’s health continues to decline. One root cause for this dire situation arises from the assumptions behind our current environmental laws. Environmental laws, in large part, focus only on human benefit and thus legalize harming the environment by regulating how much pollution or exploitation can legally occur. This results in economic considerations outweighing nature’s fundamental needs. Further, the environment itself does not have a voice in decisions made, nor the ability to demand adherence to the law.

Earth Law learns from the worldviews of many indigenous cultures and applies it to legal systems across the globe. It recognizes that humans form but one part of the complex and interconnected web of life on Earth. Earth Law focuses on upholding ecosystems’ inherent right to exist and flourish, and believes that humans have a responsibility to respect and enforce those rights. Laws recognizing the rights of nature thus change the status of natural communities and ecosystems from property to rights-bearing entities, with these rights being enforceable by people, governments and communities. It makes nature equal partners with humans in the shared biosphere we call Earth.

Laws developed under the “Earth Law” framework aims to protect the environment for the benefit of all members of the Earth community, human and non-human. This ensures true protection, including both proactive and precautionary actions, as well as effective restorative projects. Legal rights for nature also allows humans to represent nature in judicial proceedings, enabling us to hold accountable those harming nature and requiring remedy and relief.

Real Life Examples of Indigenous Campaigns that Earth Law Could Bolster

(1) The World’s First River to Gain Rights

The Whanganui Iwi, an indigenous group in New Zealand, won a landmark case this year when New Zealand Parliament passed the Te Awa Tupua Bill into law, which gives the Whanganui River legal personality and standing and protects its rights in law.

“Since the mid-1850s Whanganui Iwi have challenged the Crown’s impact on the health and wellbeing of the river and those who lived on it, and have fought to have their rights and their relationship with the River recognised,” said Gerrard Albert, the Chairperson of Nga Tangata Tiaki o Whanganui.[vi]

By James Shook Creative Commons License

(2) A Partial Win in Ecuador

In July 2010, the Afro-descendant community of La Chiquita and the Awá community of Guadualito filed a landmark lawsuit against Los Andes and Palesema Oil Palm Companies for harm to local ecosystems (e.g., from deforestation, biodiversity loss, and river pollution) and to local communities.

In January 2016, after over six years, Ecuador’s Esmeraldas Provincial Court handed down a decision restricting future oil palm expansion in the region and calling for other protective measures, a victory for La Chiquita and Guadualito. However, disappointingly, the decision limits reparations from the palm oil companies, although they are required to take certain protective actions. Local communities report that some months later, the decision is not being fully enforced.[i]

(3) Win in Suriname

Suriname, officially known as the Republic of Suriname, is a sovereign state on the northeastern Atlantic coast of South America. It is bordered by French Guiana to the east, Guyanato the west and Brazil to the south.[ii]

On January 28, 2016, the Inter-American Court of Human Rights found the country of Suriname responsible for multiple violations of the American Convention on Human Rights. These violations arose from activities including bauxite mining, grants of individual titles to non-indigenous persons and restrictions imposed by two nature reserves. The Court further highlighted Suriname’s failure to recognize and guarantee the legal personality and territorial rights of the Kaliña and Lokono.

The case of Kaliña and Lokono Peoples v. Suriname was first submitted by the chiefs of the eight Kaliña and Lokono villages of the Lower Marowijne River and the Association of Indigenous Village Leaders in Suriname.[iii]

(4) The Inuit in Canada Win in Court

In the companion cases of Hamlet of Clyde River et al v PGS et al. and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. (July 2017), the Supreme Court of Canada unanimously decided to rescind the permit of the National Energy Board (NEB) authorizing seismic testing in Baffin Bay and the Davis Straight.[iv] These surveys had the potential to affect migration patterns of marine mammals traditionally harvested by the Inuit at Clyde River.[v]

Jerry Natanine, a former mayor of Clyde River said his community is not ruling out co-operation with energy companies in the future. "We're not totally against development, but it has to be done right. You know, whales don't have to die, seals don't have to die off, plankton. There's a better way to do these things, that's what we've got to find out."[vi] However, this case sent a clear message that indigenous rights and related environmental protections must be upheld.

How You Can Be Part of the Global Movement for Rights of Nature

Indigenous battles to defend nature have taken to the streets, leading to powerful mobilizations like the gathering at Standing Rock. Now they have taken to the courts, strengthened by innovative legal ways of protecting nature.[vii]

Actions you can take:

•  Stay Informed
•  More about ELC’s work
•  Volunteer
•  Donate

Suriname Forest by David Evers (Davness_98) Creative Commons License

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[i] https://intercontinentalcry.org/court-issues-ruling-worlds-first-rights-nature-lawsuit/

[ii] https://en.wikipedia.org/wiki/Suriname

[iii] https://www.forestpeoples.org/en/topics/inter-american-human-rights-system/news/2016/02/indigenous-peoples-suriname-win-important-cas

[iv] http://www.irc.inuvialuit.com/news/win-treaty-rights-supreme-court-canada-issues-decision-clyde-river-appeal

[v] https://www.osler.com/en/resources/regulations/2017/supreme-court-releases-much-anticipated-chippewas

[vi] http://www.cbc.ca/news/politics/supreme-court-ruling-indigenous-rights-1.4221698

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

Dam Removal to Restore Snake River to Health

By Darlene Lee

The indigenous Nez Perce, or “Niimíipu,” live by the Snake, Salmon and Clearwater Rivers in the Pacific Northwest plateau region. They govern their tribe from Idaho (USA), where they are one of five federally recognized tribes in the state.[1] Environmental leaders within the tribe and their allies are fighting for the removal of four dams on the Lower Snake River, which help restore salmon populations and enhance ecosystem health. After decades of determined efforts, dam removal may be closer than ever.

History of the Nez Perce Nation

According to tribal legend, Nimiipúu, “the people,” were created in north central Idaho at the dawn of time. Evidence indicates the Nez Perce inhabited the Clearwater and Snake River Valleys over 11,000 years ago. In 1800, the Nez Perce had more than 100 permanent villages, ranging from 50 to 600 individuals.

The Nez Perce homeland once covered roughly 16 million acres in parts of what are now Idaho, Oregon and Washington. An 1855 treaty reduced their land to 7.5 million acres. When white settlers discovered gold in the Nez Perce homeland, the US government pushed for a new treaty slashing the reservation to 770,000 acres.

Although some Nez Perce members signed the treaty, others vehemently refused – including Chief Joseph, a renowned voice against the injustices towards the Nez Perce. After a series of battles against the US government, the Nez Perce conceded and this land has become the modern Nez Perce Reservation.

At its peak in 1805, the Nez Perce numbered about 12,000.[2] This fell by half to 6,000 in the 1830s. Today, about 4,000 Nez Perce live in the United States.[3]

The Nez Perce Way: Harmony with Nature

“The Earth is part of my body... I belong to the land out of which I came... The earth is my mother...” Too-Hool-Hool-Zute[4]

The land and its waters define the Nez Perce way. Like many indigenous nations in the US, the Nez Perce traditionally value the Earth not for what it represents in goods or money, but for it being the source of life. Historically, the people did not own land, but rather belonged to a particular part of the Earth, and owed a responsibility to their place of birth. The Earth was the mother of all life, and the mother of the people.[5]

Over thousands of years nature taught the Nez Perce how to live with her. According to tribal leaders, “This intimate and sacred relationship unifies us, stabilizes us, humbles us. It is what makes us a distinct people and what gives us our identity. We cannot be separated from the land or our rights without losing what makes us Nez Perce. We defend our rights to preserve who we are and what we hold sacred.”[6]

Horses dramatically changed life for the Nez Perce early in the 18th century, both increasing and enhancing hunting and war expeditions. The Nez Perce built up one of the largest horse herds on the continent, selectively breeding for speed and creating the Appaloosa breed.[7] Reservation life and assimilationist pressures destroyed their horse culture in the 19th century.

The Importance of Snake River to the Nez Perce and the Decline of Salmon in Snake River

The Snake River is the thirteenth longest river in the United States. At 1,078 miles (1,735 km) long, it is the largest tributary of the Columbia River – North America’s largest river emptying into the Pacific Ocean. The Snake River arises in western Wyoming then flows through southern Idaho, Oregon, and Washington, where it converges with the Columbia River.

The Snake River has long been imperative to the culture and well-being of the Nez Perce. In particular, the tribe shares a deep connection with the river’s salmon. Salmon once spawned by the millions in the Snake River and were central to the Nez Perce’s way of life.[8] Even the Nez Perce’s creation story involves salmon offering themselves to feed the people.[9] And in modern times, salmon are both a way of life and a treaty right for the Nez Perce.

Widespread damming of the Snake River now threatens the very existence of its salmon. There are 15 dams in total on the river, including Hell’s Canyon Dam, which blocks fish passage to the entire upper Snake River. The Grand Coulee Dam also blocks spawning grounds to the famous "June Hogs" – the legendary Chinook salmon that have weighed over 100 pounds [45 kg] in the past. [10]

Between 1985 and 2007, only an average of 18 sockeye salmon returned to Idaho each year. Conservation projects run by wildlife biologists have spawned eggs, incubated salmon fry and then transported the young fish by ship to bypass the dams. The dams can injure and kill juvenile sockeye salmon with their powerful tides and currents, which suck the salmon fry down. Although successful at raising salmon numbers, this method costs upwards of $15 million.

Realizing these threats, for decades, river advocates have been tied up in court, demanding the federal government restore the threatened and endangered salmon and steelhead populations that migrate through the Columbia and Snake Rivers. Since 1975, when Lower Granite Dam was completed, salmon in the Snake River basin have faced the obstacle of eight massive concrete dams before making it out to the ocean. Then they do it all over again when they come back home to spawn. Running that gauntlet of concrete and warm water puts a major strain on the fish and is considered perhaps the single greatest reason for their precipitous decline.[11]

Nez Perce support removal of dams from Snake River

Ecologists, conservation groups and many others are beginning to realize that widespread dams are incompatible with healthy river ecosystems. Therefore, there is a growing movement to remove the most destructive, ineffective and outdated dams as a first step towards restoring rivers, including salmon populations.

Nez Perce tribe members believe the best way to restore salmon and steelhead to their Idaho communities is by breaching the four Lower Snake River dams.[12] And there is strong precedent to support this claim. For example, the removal of the Lewiston Dam on the Clearwater River, a tributary of the Snake, resulted in a dramatic recovery of salmon populations. And elsewhere in the Pacific Northwest, the removal of the Glines Canyon Dam on the Elwha River resulted in the return of over 4,000 Chinook salmon to spawn upstream of the dam the very next year – the first time they had been seen there in over 100 years.

Another reason to advocate for dam removal is simply that other methods have failed. "All of these other methods and alternatives have been tried to date, and the fish are not returning,” said Elliott Moffett, President of Nimiipuu Protecting the Environment, a nonprofit that defends the treaty rights and lands of the Nez Perce Tribe. "So as tribal members we cannot exercise our treaty rights to fish, for an example, and utilize the salmon as we have in our past, in our culture and tradition."
 

Elliot Moffett also recognized the connection between the well-being of humans and nature with regards to river health. “[Salmon] need that clear, cold, swift running water. And they don’t have that because the dams have impounded their rivers,” he said. “[W]hen the river’s not doing well, we’re not doing well, we’re that connected with our environment in the natural world.”[13]

The proposed removal of four Lower Snake River dams has been the subject of legal battles since 1991. Most recently, in May 2016, a federal district judge ordered dam operators to put all options on the table to save threatened and endangered salmon and steelhead – including dam removal on the Snake River. The judge’s order led to federal hearings throughout the region, ending earlier this year.[14] Meanwhile, the Nez Perce and those that care about a thriving Snake River continue to wait for meaningful action before Snake River salmon runs become extinct.

The Rights of Rivers

ELC believes that all rivers have inherent rights, whether or not governments recognize them. There is a growing movement to recognize these rights worldwide, with four rivers gaining legal rights recognition in 2017. These were waterways in New Zealand, India and Columbia. In New Zealand, a treaty was the source of rights for the Whanganui River. And in India and Columbia, court decisions established rights for three rivers.

Recognizing the rights of rivers would promote the removal of dams, which may violate a river’s inherent “right to flow” as well as other related rights. It also would ensure that river health is no longer compromised for short-lived economic benefits. The rights of rivers movement also explicitly acknowledges and honors the crucial role that indigenous groups have in protecting rivers and utilizing them sustainably for their well-being, as the Nez Perce did for generations before the US government intervened.

ELC believes that until rivers have legal rights, destructive dam projects and other harms will continue to destroy ecosystems, including salmon runs. This right would be enforced by legal guardians, particularly indigenous peoples for those rivers upon which they historically depend. And it would support Native American treaty rights for fishing, since tribes have long honored and depended upon salmon and other fish species.

Tribal Environmental Summit

ELC attended the October 28 Nez Perce Tribal Environmental Summit to present on the rights of rivers and how it supports dam removal. The Nez Perce has long-recognized many rights of nature concepts at the deepest level. The rights of nature movement relies heavily upon indigenous wisdom.

At the Summit, ELC began by discussing the flaws in our current environmental laws. For example, the Endangered Species Act kicks in only once species are on the brink of extinction, rather than setting a positive goal of ensuring that all species thrive. Due to these negative goals, many fish species teeter on the brink of extinction – including Snake River salmon, which have plummeted in population since damming the river.

ELC then discussed solutions, including reforming our governance to recognize the rights of rivers. As one example, ELC discussed our Universal Declaration of the Rights of Rivers, which provides a template that can be implemented at all levels of governance. The Declaration requires that governments “consider for decommission all dams that lack a compelling social and ecological purpose.” Under this framework, many harmful dams in the western United States would be candidates for prompt removal.

In addition to speaking, ELC listened. We learned of the impassioned efforts to protect the Snake River and surrounding ecosystems that have been going on for years. This includes the “Free the Snake Flotilla,” where hundreds of supporters take to the water to demand removal of the Lower Snake River dams. And it also includes efforts to oppose nearby oil trains that can blow up on a whim, contaminating ecosystems and killing anyone in the blast radius. The Columbia River watershed is home to many great environmental leaders with whom ELC is proud to work.

How you can get involved in a rights-based approach to protecting rivers                                                      

We need your help to secure rights for all rivers worldwide. This will promote dam removal as a legal right for waterways. Here is how you can help today:

• Connect with us on social media and sign up for our newsletter
• Sign the Universal Declaration of River Rights as an individual or organization
• Volunteer with ELC
• Contact ELC if you want to work on your own river rights campaign, including efforts to oppose dam construction and remove existing dams
• Donate to ELC

Grant Wilson, Directing Attorney, speaking at the Nez Perce Tribal Environmental Summit

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

[2] https://en.wikipedia.org/wiki/Nez_Perce_people

[3] http://www.nationalgeographic.com/lewisandclark/record_tribes_013_12_17.html

[4] http://www.nezperce.org/erwm/Welcome.html

[5] http://www.webpages.uidaho.edu/isem101-26/PDFs/NezPerceLand.pdf

[6] http://www.nptfishpermits.com/NezPerce

[7] https://www.britannica.com/topic/Nez-Perce-people

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

[9] http://damsense.org/history/

[10] http://www.nezperce.org/~srcurrents/srcurrents/AugustPublication.htm

[11] http://news.streetroots.org/2017/09/15/nez-perce-activists-fight-save-snake-river

[12] http://www.publicnewsservice.org/2016-11-15/endangered-species-and-wildlife/lower-snake-river-dams-nez-perce-treaty-rights-at-issue/a54959-1

[13] http://news.streetroots.org/2017/09/15/nez-perce-activists-fight-save-snake-river

[14] http://news.streetroots.org/2017/09/15/nez-perce-activists-fight-save-snake-river

Rights of Nature at the International Level

In Peace & Harmony mural addressing environmental issues, by Leo Tanguma

By Darlene Lee

Believing ourselves to be separate from nature affects how we behave

Over 4.5 billion years of evolution have built Earth’s incredibly complex network of interdependent systems. Everything connects to everything in an ancient balancing act. Humankind’s recent and rapid rise to success has disrupted that system. With our population at over 7 billion and hungry for “resources” (largely commoditized natural systems), many of us have played a major role in creating eco-instability.[1]

The dominant attitude in industrialized western societies, of humankind and nature as separate from one another, views nature as a material resource for people to use. We often behave as if we believe ourselves to be independent of nature and above it.

Indigenous hunter-gatherer societies believed the opposite, recognizing non-human animals as sentient beings with equal status to humans. Even when hunted, the animals deserve the respect of their hunters. These indigenous societies see themselves as within nature. People comprise a part of a natural community of living beings.[2]

The idea that humans live in a supra-natural sphere developed when we gained greater control of nature through herding and agriculture. Once thought of as “ancestors or embodiments of sacredness,” wild species devolved to become perceived as “predators […], quarry for human hunts, competitors for space and resources, vermin, or spectacles….”[3]

Industrial urbanization has reinforced the belief that humanity and nature live in separate worlds. Nature has become a recreational resource in the city, a place where the worship of convenience and efficiency justifies controlling and profiting from non-human life.

Believing ourselves to be part of nature changes how we behave

After the Second World War environmental degradation became increasingly obvious. Nuclear testing, mass consumerism and global pollution moved citizens to act. By the 1960s a national environmental movement had emerged, hoping to undo the damaging effects of human activity and protect nature in the future. Then between 1970 and 1972, nine major pieces of environmental legislation helped to curb runaway environmental degradation. But these advances have still not gone far enough.

Despite the growth of environmental laws, the way the legal system thinks about protecting the Earth remains imperfect. The current legal framework approaches environmental harms from a “threshold” perspective, which legalizes environmental destruction up to a certain point. “Maximum pollutant” guidelines have not countered the continued net destruction of our natural world, as such guidelines continue to allow destruction to continue.

National environmental protection laws typically consider “human’s needs first” and “nature’s needs last.” Today we can see from the continued destruction of Earth’s natural environment that this approach does not tackle the root cause.

Environmental laws must evolve and adapt to changing global conditions. The situation grows urgent. According to the World Health Organization, between the years 2030 and 2050, climate change is expected to directly cause approximately 250,000 additional deaths per annum. These will be from malnutrition, malaria, diarrhea and heat stress.[4] Lancet Medical Journal goes further and estimates that one out of every six premature deaths in the world in 2015 — about 9 million — could be attributed to disease from toxic exposure. The financial cost from pollution-related death, sickness and welfare is equally massive, the Lancet report says, costing some $4.6 trillion in annual losses — or about 6.2 percent of the global economy.[5]

Rights of Nature laws address the underlying cause of environmental degradation by giving legal equality to non-human life. Rights of Nature laws also remind society that humans form a part of nature – as opposed to separate from nature, as assumed by our current suite of modern environmental laws. By recognizing the innate rights of the natural world, Rights of Nature laws treat the disease, not the symptoms.

The global Earth Rights movement recognizes the inherent benefits of treating the Earth as a rights-holding entity with a stake in the decisions that affect it. By focusing future environmental regulations on the health and wellbeing of the planet itself, governments will be better able to protect nature and ensure sustainable human life.

Shifting the paradigm: changing our beliefs about our place in nature

The United Nations General Assembly widely acknowledges that depletion of nature and rapid environmental degradation both result from unsustainable consumption and production patterns. These patterns have led to adverse consequences for both the planet and humanity.

The scientific community offers well-documented evidence that our consumption and production patterns have severely affected the Earth's ability to support life. [6] Loss of biodiversity, desertification, climate change, and the disruption of a number of natural cycles number among the many costs of humanity’s disregard for nature.

Technology is often seen as the answer to all environmental problems. But to meet the basic needs of a growing population within the limits of Earth's finite resources, we must not rely on further attempts to control nature (which have largely failed). Instead, we need to devise a more sustainable model for production, consumption and the economy as a whole – one that places humans squarely within the larger community of nature.

Since 2009, the aim of the General Assembly, in adopting its five resolutions on ‘Harmony with Nature,’ has been to base this newly found relationship on a non-anthropocentric understanding of 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.

Earth Law Center (ELC) partners with the UN Harmony with Nature Initiative to expand Earth Law education and to promote legal and economic paradigms in which humans and nature can thrive together.  We work within other UN processes, with a recent statement on ocean rights during the UN Ocean Conference in June 2017 and a new resolution that established a committee of experts in Earth Jurisprudence adopted by the UN in 2016.[7]

Follow the link to read a chronology of Harmony with Nature milestones.

The International Union for Conservation of Nature (IUCN)

According to the IUCN, “We live in a world where we are subject to environmental and economic effects that transcend national boundaries. Increasing globalisation has led to a greater recognition of the need to address these issues.”[8]

The International Union for Conservation of Nature is an environmental network comprised of government and civil society organizations – including over 16,000 experts and 1,300 Member organizations. It serves as a “trusted repository of best practices, conservation tools, and international guidelines and standards.”

Every four years, the IUCN convenes to discuss the “status of the natural world and the measures needed to safeguard it.” At the 2012 World Conservation Congress, IUCN members recognized nature’s rights by passing Resolution 100, “Incorporation of the Rights of Nature as the organizational focal point in IUCN’s decision making.”

This resolution called for nature’s rights to be a “fundamental and absolute key element in all IUCN decisions,” and invited the Director General and IUCN Members to promote a Universal Declaration of the Rights of Nature. Read the resolution here: http://bit.ly/RES100. ELC also worked with IUCN leaders to ensure that rights of nature was included as part of the IUCN’s 4-year work programme, from 2017 to 2020.

ELC partners with the IUCN on a variety of initiatives to define and advance rights of nature concepts at the international level. For example, ELC’s Directing Attorney, a member of the IUCN’s World Commission on Environmental Law, is working to advance educational online training on rights of nature, as well as to define and educate on recent rights of rivers advancements. ELC looks forward to making several announcements on these initiatives in early-2018.

Join the global movement for rights of nature:

•  Stay Informed
•  More about ELC’s work with the United Nations and IUCN
•  Volunteer
•  Donate

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[1] https://you.stonybrook.edu/environment/sample-page/

[2] http://www.resilience.org/stories/2014-01-17/the-indigenous-and-modern-relationship-between-people-and-animals/

[3] http://www.resilience.org/stories/2014-01-17/the-indigenous-and-modern-relationship-between-people-and-animals/

[4] http://www.who.int/mediacentre/factsheets/fs266/en/

[5] http://abcnews.go.com/Technology/wireStory/study-world-pollution-deadlier-wars-disasters-hunger-50598932

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

[7] https://earthlawcenter.squarespace.com/united-nations

[8] https://www.iucn.org/theme/environmental-law

Do Dams Violate a River’s Right to Flow?

Removal of Veazie Dam on Penobscot River, Maine, by Penobscot River Restoration Trust.

By Darlene Lee

The world’s first great civilizations emerged near rivers such as the Tigris, the Euphrates, the Nile, the Indus and the Yellow River.[1] Rivers have always supported human life, but now their health is suffering because of our dams.

Once a symbol of ingenuity and engineering prowess,[2] the latest research[3] shows that dams destroy river ecosystems and adversely affect human health and well-being. Is further dam development such a good idea after all?

How did dams go from engineering wonder to environmental pariah?

The world has an estimated 800,000 dams,[4] built both for hydroelectric power and to store water. Concerns have mounted over the negative impacts of large dams on both people and the environment.[5] Dams alter a river’s ecosystem from one that’s cold, flowing and connected, to one that’s warm, stagnant and fragmented – with devastating consequences for wildlife. Dams have largely caused freshwater fish numbers to plummet[6] – the world has lost 80 percent of freshwater fish populations since 1970.[7]

Many countries have seen the error of their ways and have started to decommission dams. According to the non-profit American Rivers, over 1,000 dams across the U.S. have been removed to date.[8] Where dams are removed, river ecosystems begin healing right away. On the Elwha River in Washington State, in the very first season after taking down the massive Glines Canyon Dam, over 4,000 Chinook salmon returned to spawn – the first time Chinook have been seen there in more than 100 years.[9]  And in New York State, the Saint Regis Mohawk Tribe recently became the first US tribe to remove a federal dam when it took down the Hogansburg dam on the St Regis River, opening up 275 miles of stream habitat to migratory fish.[10]

Internationally, there is a growing movement to oppose destructive dam projects, and the message is getting through. In April 2016, Brazil’s environmental agency, Ibama, suspended the licensing process for the São Luiz do Tapajós dam because of concerns for indigenous peoples.[11] In July 2016, the World Bank suspended financial support for the Inga 3 dam on the Congo River.[12] In the following month, Endesa Chile, Chile’s largest power generator, dropped six hydroelectric projects.[13] The Chinese government has also halted plans to construct a series of dams on one of China’s last free-flowing rivers, the Nujiang.[14] In October, the Peruvian government announced that several dams proposed for the Marañón River, a major tributary of the Amazon, are now off the table during the current administration.[15]

Unfortunately, these are the exceptions rather than the norm. New dams continue to be built and expanded across the world, with relatively few being decommissioned. As one example in the U.S., the United States Army Corps of Engineers has given the green light to build the massive $400 million Chimney Hollow dam and reservoir, which involves diverting huge amounts of water from the Colorado River and pumping it underneath the Rocky Mountains.[16] At the global level, more than 1,400 new dams or water diversion projects are planned or already under construction. In addition to vast ecological harms, many of them are on rivers flowing through multiple nations, fueling the potential for increased water conflict between some countries.[17] 

Eight ways dams harm river ecosystems[18]

i.  Soil Erosion

Dams hold back the sediment load normally found in a river flow, resulting in the downstream water eroding its channels and banks. This lowers the downstream riverbed and threatens vegetation and river wildlife.

Often cited as a benefit of dams, flooding prevention actually disrupts human and animal systems that have adapted to regular flooding. Annual floods also deposit nutrients and replenish wetlands.

ii.  Species Extinction

Changes in temperature and chemical composition, dissolved oxygen levels, and the physical properties of a reservoir are not often suitable for the aquatic plants and animals that have evolved within a given river system. Migratory and breeding activities are among those affected. Indeed, reservoirs often host non-native and invasive species (e.g. snails, algae, predatory fish) that further undermine the river's natural communities of plants and animals. 

iii.  Spread of Disease

Dam reservoirs can serve as perfect breeding grounds for mosquitoes, snails and flies – the vectors for diseases such as malaria, schistosomiasis and river blindness. Dams have long been associated with elevated burdens of human schistosomiasis, an acute and chronic disease caused by parasitic worms found within snails.[19]

iv.  Changes to Earth’s Rotation

NASA geophysicist Dr. Benjamin Fong Chao found evidence that large dams cause changes to the Earth’s rotation, because of the shift of water weight from oceans to reservoirs. Because of the number of dams, Earth’s daily rotation has apparently sped up eight-millionths of a second since the 1950s. Chao said it is the first time human activity has been shown to have a measurable effect on the Earth’s motion.

v.  Sedimentation & Siltation

Sediments in water entering a reservoir are deposited at its upper end, forming a delta and steadily raising the level of the upper reaches of the reservoir. This causes flooding due to its bank water effect and shortens the utility of the dam. Silt deposited at the bottom of the reservoir also reduces dam utility. Siltation reduces the water storage capacity of the reservoir and undermines its effectiveness for power generation, irrigation and flood control.

vi.  Water logging

Previous rich soils lose their ability to support plant growth when saturated with water, where the water is trapped under the surface but can’t percolate downwards. Dam seepage often causes waterlogging. The Indian Institute of Science estimates that 40 percent of the command area[20] for Sardar Sarovar Dam will become waterlogged.

vii.  Salinization

Irrigation water has higher saline content, leading to salinization of natural systems. Changes in the salt regime can affect the entire ecosystem and disrupt fish breeding. Large riverbank areas are likely to be affected by increased salinity after dam construction.

Dams harm humans too

The world’s dams have allowed cities to sprout in dry lands, but at a steep cost to hundreds of millions of already impoverished people, according to a new report. Lead author Brian Richter, co-director of The Nature Conservancy’s Global Freshwater Program, notes, “Our conservative estimate of 472 million suggests that the number of people [adversely affected by dams] . . . exceeds by six to twelve times the number directly displaced by these structures.”[21]

Those affected include downstream fishermen and farmers. They have their lives and livelihoods altered or even destroyed by dams. Many of them are poor people who may find it hard to adapt. For example, when the Maga Dam and a water diversion scheme went in on Cameroon’s Logone River in 1979, combined hits to floodplain agriculture, fisheries, and other downstream attributes reduced the regional economy by $2.4 million per year, according to the International Union for Conservation of Nature.[22]

Finally, indigenous peoples are particularly hard-hit by destructive dam projects. Many mega-dams are built without the free, prior and informed consent of affected indigenous groups. The flooding from such dams can displace entire communities and inundate their homes, food sources and sacred areas. There have also been many instances of violence directed against protestors of dam projects.

What can I possibly do about a dam?

Until rivers have legal rights that protect them from harmful water projects, we will continue to see dams built for economic gains regardless of environmental impacts. Therefore, Earth Law Center seeks to establish legal rights for all rivers, building off recent victories in New Zealand (Whanganui River), India (Ganges and Yamuna Rivers), and Colombia (Atrato River).

To help achieve this goal, ELC drafted a Universal Declaration of River Rights (“Declaration”), which describes those fundamental rights to which all rivers are entitled. This document is based on existing river rights precedent as well as general principles of river health.

With regard to dams, the Declaration first recognizes the right of all rivers to flow. Additionally, the Declaration calls for governments to “decommission all dams that lack a compelling social and ecological purpose, and that new dam construction shall only occur in exceptional circumstances….” Finally, the Declaration calls for “full free, prior, and informed consent of indigenous and other impacted communities” for any dam projects that do proceed. With these protections implemented in law, we believe that rivers can be restored to health – to the mutual benefit of humans and nature.

Now we need your support to advance the movement to establish legal rights for rivers worldwide! Here is what you can do:

(1) Please sign the Universal Declaration of River Rights and provide feedback, if any, through the online form, available in English and Spanish. You can also visit ELC’s “Rights of Rivers” page for more information.

(2) To start your own river rights initiative, contact gwilson@earthlaw.org. You can join the movement to restore the health and beauty of our rivers by preventing new dams from being built, or getting old ones decommissioned.

(3) Join your local Earth Law Club, volunteer or donate to Earth Law Center.

For more information, email us at info@earthlaw.org.

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

[2] https://www.scientificamerican.com/article/how-do-dams-hurt-rivers/

[3] https://file.scirp.org/pdf/JWARP20110100006_91619646.pdf

[4] https://www.internationalrivers.org/damming-statistics

[5] https://en.wikipedia.org/wiki/Environmental_impact_of_reservoirs

[6] Freshwater fish are those that spend some or all of their lives in fresh water, such as rivers and lakes, with a salinity of less than 0.05%. https://en.wikipedia.org/wiki/Freshwater_fish

[7] https://www.theguardian.com/global-development-professionals-network/2017/jan/09/dams-building-let-rivers-flow

[8] https://www.scientificamerican.com/article/how-do-dams-hurt-rivers/

[9] http://projects.seattletimes.com/2016/elwha/

[10] http://www.newyorkupstate.com/northern-ny/2016/12/mohawks_become_first_tribe_to_take_down_a_federal_dam.html

[11] https://www.theguardian.com/world/2016/apr/22/brazil-amazon-dam-project-suspended-indigenous-munduruku-sao-luiz-do-tapajos

[12] http://www.worldbank.org/en/news/press-release/2016/07/25/world-bank-group-suspends-financing-to-the-inga-3-basse-chute-technical-assistance-project

[13] http://www.reuters.com/article/us-enersis-chile-hydro/endesa-chile-gives-up-water-rights-to-hydroelectric-projects-idUSKCN1152UR

[14] https://www.theguardian.com/world/2016/dec/02/joy-as-china-shelves-plans-to-dam-angry-river

[15] http://proactivo.com.pe/grandes-hidroelectricas-en-las-selva-no-estan-en-agenda-del-gobierno/

[16] https://www.newsdeeply.com/water/articles/2017/05/31/feds-issue-permit-for-large-dam-on-colorado-river-headwaters

[17] https://www.sciencedaily.com/releases/2017/07/170717160048.htm

[18] http://www.yourarticlelibrary.com/essay/environmental-problems-caused-by-dams/42623/

[19] http://rstb.royalsocietypublishing.org/content/372/1722/20160127

[20] The command area is the area around the dam, where the benefits of the dam, such as irrigation water, electricity, etc., reach. https://www.proz.com/kudoz/English/agriculture/1308588-command_area.html

[21] http://news.nationalgeographic.com/news/2010/06/100604-dams-economic-impact/

[22] http://news.nationalgeographic.com/news/2010/06/100604-dams-economic-impact/

Earth Law Clubs at American Universities: Standing on the Shoulders of Giants

University of Michigan:  Teach-In + 50

By Melannie Levine

How do you start a movement?

According to entrepreneur Derek Sivers, a movement requires the power of two people. One person dancing is a “lone nut” but with two there is a leader and a follower. When a third person joins in on the growing action, the dancing becomes a crowd. As Sivers says, “a crowd is news.”

If the second person never rises to the occasion, then that lone nut does not become a leader starting a movement [1].

Students and faculty in the 1960s and 1970s across the United States rose to protest numerous lack of rights. Activists campaigned for civil rights, free speech and the rights of women, gay people and African Americans. Student activism also critiqued the United States’ involvement in South African apartheid and the Vietnam War. These movements captured media attention, prompting the public to respond to the causes to which they related.

More recently student activists have been campaigning on issues such as student debt, climate change, gender and racial equality, and sitting political leaders.

Below are a few examples of successful and influential student-led movements in the United States over the last several decades. By thinking about what made these movements successful, we can develop ideas for building the Earth Law movement on campuses across America.

“Question Authority!”

At San Francisco State University (SFSU) students realized that their actions could influence political decisions in the university and the city. However, it was in 1963 that SFSU students could speak openly about current politics on American university campuses - a first for the country.

This advancement in freedom of speech on campus created a place to react to the issues of the following years. Topics enabled for student-led groups, including the Black Students Union and the Third World Liberation Front, to come together for a common cause. The pinnacle of the groups’ collaboration occurred with the suspension of George Murray, a Black Students Union member and Black Panther. Student concern about racial bias and exclusion boiled over with SFSU’s decision, experiencing it as a truly racist action representative of the times [2].

On November 6, 1968, a five-month strike began on the SFSU campus. Seeing that the classroom did not reflect the current political situation, students demanded a change in the curriculum and an increase in the student diversity. Black students didn’t learn about their history or current struggles. Other students did not see their education encompass their own individual ethnicities. Some of the faculty joined the strike as they believed that the concerns raised by the students were valid. They also added their own issues such as renegotiating labor requirements and increasing wages [3].

Both the Black Students Union and the Third World Liberation Front submitted lists of demands to the school’s administration. The students asked the school to pay full-time wages to all full-time professors regardless of skin color; to institute a Bachelor’s Degree in Black Studies; to create a School of Ethnic Studies degree; and to expand the number of non-white students attending the university to full capacity.

On March 20, 1969, the student-led groups and college administration reached an agreement. Not all of the demands were met, but the strikers were appeased by the schools’ proposed resolutions and ceased their protest [2].

This strike set in motion protests both on many other college campuses (University of California Berkeley, for example) and in public spaces. Campaigners highlighted the mistreatment of African Americans and minorities, the country’s actions in the Vietnam War, and other related issues of institutionalized racism.

An Educational Protest

On March 24, 1965 the first “teach-in” took place at the University of Michigan, Ann Arbour Campus – marking the “first large-scale student movement” in the US. The teach-in, coordinated by the student-led group called Students for a Democratic Society (SDS), protested against the Vietnam War. Formed just five years earlier, SDS enjoyed high name, mission and manifesto recognition within two years of its establishment. The group valued “participatory democracy as a political process that would realize civil rights and egalitarianism” [4].

Organized as an all-night affair so as to not disturb the school day, the protesters taught “injustice in political policy” instead of a traditional protest, which might have led to the firing of the involved faculty. This positive protest actually received the university’s approval. Three thousand people attended the “lectures, debates, film viewings, musical performances and workshops, with a large rally to finish off the event the following morning” [4].

Had this teach-in occurred only at the University of Michigan, the coordinators and participants would have been the lone nuts or outliers. Instead, they became leaders that started a movement. On the following day, Columbia University held a similar event. Within a week, 35 schools followed suit, growing to 120 American colleges hosting equivalent teach-ins by the end of the school year, becoming a nationwide phenomenon.

The Power of Cutting Ties

In the late 1990s the Union of Needletrades, Industrial, and Textile Employees (UNITE) started to actively encourage college students to intern with them. The Union aimed to garner the enthusiasm, energy, and power of university students, as seen in previous decades, and apply it to improving conditions in the sweatshops that made their schools’ clothing. They figured that if students fought the sweatshop conditions, change would happen faster on both campuses and among the general public [5].

Tico Almedia, the first student to start campaigning against sweatshops, studied at Duke University had been one of UNITE’s summer interns in 1997. Almeida returned to school in the fall to form the student group called Students Against Sweatshops (SAS). SAS asked the university to require companies making school clothing or products to follow a newly created set of standards which created safer and better paid working conditions for sweatshop workers.

With an intensive email campaign and sit-in at the president’s office, SAS members established the forum for a code of conduct to be written and followed by the school’s administration. The new policy included improved wages, benefits, and work-environment conditions, the ability to form a union without repercussion, and the university having the right to check company compliance. Any company found to be violating these terms would have their contract with the school cancelled if they did not comply immediately [6].

Within a year of implementing this code of conduct at Duke University and then Georgetown University, SAS grew so much that it had representatives on over 300 campuses and parent organization, United Students Against Sweatshops (USAS), established [7].

Students employed various tactics including marches, petitions, showcasing exhibits, teach-ins, sit-ins, speeches, rallies, debates, and onslaughts of email and paper communication to the students, faculty, and administration [5]. The general public also started discussions about sweatshops, which added to the momentum of the cause [8].

Years later, the power of these codes of conducts continued when companies such as Nike and Russell violated the policies, jeopardizing their relationship with the universities [9, 10]. By having the policies in place students have ensured that their schools follow through with the agreement. Students have protested and gone on strike if need be to maintain the morals that they want on their school campuses.

Going Forward: Earth Law Clubs

Students today seem to realize more deeply the critical juncture faced by humanity as the climate continues to warm, species disappear and oceans fill with plastic. The time is ripe for another student-led movement; this time, though, focused on climate change and advocating for the environment’s rights.

The lessons of previous student movements give us the opportunity to build Earth Law activism on a tried and true working system. When we establish Earth Law Clubs on school campuses across the United States, we will be joining a healthy tradition of American student activism.

The lessons of previous student movements:

Lesson #1: Student-led movements work.

Lesson #2: Positive forms of protest (teach-ins, mass communication, exhibits, and so on) gain university’s administration and general public support more effectively than violent demonstrations.

Lesson #3: Student-led movements do not need to originate from students or college campuses but can exponentially expand once students take up the cause.

Lesson #4: Student-led movements take months, if not years, to achieve their desired goals.

Lesson #5: Powerful movements involve many schools, corralling the collective interest and pressure of thousands of students.

Earth Law Club intends to help create a platform where environmental justice and Rights of Nature discussions can occur. We want to include student voices to shift the paradigm of environmental protection from one where humans see nature as a resource to one in which humans see nature as equal partners.

Alicia Follord and Melissa Zajicek recently formed Vermont Law School’s first Earth Law Club. Outreach continues to indigenous groups, law schools, universities, colleagues and local nonprofit organizations to connect student groups already focused on the environment or start their own Earth Law Club.

Working together with other similarly-focused groups, as the Black Students Union and the Third World Liberation Front did at SFSU, will create the momentum to turn individual group aims into a collective movement.

Earth Law Center invites students to intern over the summer and get involved with specific legal initiatives aimed at creating new laws recognizing the Rights of Nature. Earth Law Clubs provide the opportunity for student-led action and participation, whether starting up a new legal initiative or petitioning local governing bodies to incorporate Earth Law for protection of nature.

Interested in volunteering? Email Melannie Levine at mlevine@earthlaw.org. Otherwise, find more information on Earth Law Center’s website.

Join the movement for Earth Law and give Mother Nature a voice!

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References

[1] https://www.ted.com/talks/derek_sivers_how_to_start_a_movement

[2] http://www.foundsf.org/index.php?title=STRIKE!..._Concerning_the_1968-69_Strike_at_San_Francisco_State_College

[3] https://web.archive.org/web/20141202124236/http://www.library.sfsu.edu/exhibits/strike/case7-text.html

[4] http://schugurensky.faculty.asu.edu/moments/1965teachin.html

[5] https://nvdatabase.swarthmore.edu/content/georgetown-university-students-campaign-against-sweatshops-1997-1999

[6] https://nvdatabase.swarthmore.edu/content/duke-students-campaign-against-sweatshops-1997-1999

[7] http://usas.org/about/mission-vision-organizing/

[8] http://michiganintheworld.history.lsa.umich.edu/antisweatshop/exhibits/show/exhibit/origins/usas

[9] https://nikesweatshops.org/

[10] http://usas.org/campaigns-old/sweat-free-campus/dont-pay-the-fla/about-the-fla/corporate-cover-up-2-russell-athletic/

Rights for the Patagonian Shelf

Image: onesharedocean.org

By Darlene Lee

The Patagonian Sea and the Patagonian Shelf 

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

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

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

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

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

Why is the Patagonian Shelf so important?

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

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

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

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

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

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

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

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

What are the threats to the Patagonian Shelf?

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

Overfishing

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

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

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

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

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

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

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

Additionally:

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

Invasive species

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

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

Climate Change

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

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

What is being done to protect the Patagonian Shelf?

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

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

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

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

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

Legal Rights for the Patagonian Shelf means:

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

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

How can I help?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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/