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 oceans 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, our oceans continue to suffer from pollution and degradation because the dominant culture of consumption and waste fails to recognize how much we need healthy oceans. 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 our 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: http://www.harmonywithnatureun.org/rightsofnature.html.

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 4. to September 8. 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 oceans 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, our oceans, nature, our entire ecosystem, 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/