By Michelle Bender

Earth Law Center is building an international movement from the ground up, one that gives better grounding to the idea that humans have a responsibility for how we impact the world around us. The belief that nature - the species and ecosystems that comprise our world - has inherent rights has proven to be a galvanizing idea, and we work with local communities to help them organize around the rights of nature to protect their environment from the threats that they see.

The heart of the ELC approach is to seek legal personhood for ecosystems and species, a designation similar to that given to corporations in U.S. law, and one that if done well will imply both rights for the entities so designated and responsibilities on the part of human beings and societies to respect those rights. Michelle Bender, Ocean Rights Manager, provides an update about Earth Law Center’s ocean rights program.

How did the ‘Ocean Rights’ Program start?

If we really want to get accurate, the passion for this program started when I was young. I think I was 5 years old when my family drove to San Diego and visited the beach. Ever since I was hooked. I knew I wanted to learn more about the Ocean, and declared my major in Marine Biology before I even started my undergrad studies. Then my pathway evolved towards the law. I wanted to be able to effect change on a larger scale, and to protect the animals and ecosystem that had stolen my heart.

Earth Law Center had a small ocean component prior to my start, but we really saw the opportunity to expand this program further in 2017. Rights of Nature was starting to grow, and the idea of legal personhood for Nature started to take hold. I specifically remember seeing an article that was titled something like ‘Rivers, mountains and national parks are gaining legal personhood worldwide’ and thought to myself, where is the ocean? The ocean represents a huge gap in the global Rights of Nature movement, and a logical progression of its application.

Earth Law Center is the only organization with expertise and a program for promoting holistic and rights-based ocean law and policy, for promoting the Rights of the Ocean.

“Aitutaki, Cook Islands” by Bullitt on Wikimedia

What does ‘Ocean Rights’ mean?

Ocean Rights means that the Ocean is a living being, and entity that has inherent rights. These rights are specific to the Ocean, and its processes and functions. Most importantly, doing so addresses the root cause of our destructive relationship with the Ocean.

We have historically valued the Ocean as an open access resource, which provides little incentive for us to invest in stewardship and conservation, and to consider future generations. Acknowledging the Ocean as our source of life rather than as property reinforces our responsibility to preserve and maintain Ocean health. Earth Law offers a way to hold ourselves accountable, and to shift the burden of proof to those wishing to undertake an extractive or exploitative activity.

What has been accomplished since 2017?

We started our program with the ‘Ocean Rights Initiative’ that gained over 70 signatures from 32 countries, and resulted in a presentation in front of the United Nations General Assembly at the first UN Ocean Conference. It became clear that there was a growing interest for this program and its application, and the question remained: how?

This led to the development of the Earth Law Framework for Marine Protected Areas, which I developed with the help of interns, volunteers, and over 40 experts internationally. It serves as a guideline for how to incorporate Earth Law into marine protected areas, but with wider applicability to the entire Ocean.

The Earth Law Framework

Designation as a Legal Entity. This takes the ecosystem out of the realm of property and provides a solution to the common access problem. In our society, the amount of protection an entity receives is a function of the legal rights it holds. Real protection for the ocean and its species then involves the right to be heard and a right to protect itself.
Codify Rights. This includes basic rights to health, be free of pollution, restoration and representation. We put those in law so that they are legally defensible.
Guardianship. Create a management body that includes guardians that represent the ecosystems interests in decisions and disputes; and ensures the ecosystems rights are not violated.
Rights of Community. Codify the human right to defend the ecosystem, so that communities can hold the government and industry accountable for harm done.
New Standards (Economic, Governance, Ecological). What standards will decision-makers have to follow to ensure a proper balancing of human and environmental needs?

We have since launched over 10 initiatives in the US and around the world. Building on our educational work, these initiatives focus on frontlines work for tangible evolution of laws and governance plans for the ocean. We connect with many other organizations with a shared mission and passion, organizations such as Mission Blue, Marine Conservation Institute and NRDC.

For the Salish Sea here in Washington, for example, we work at the local level to help coastal communities pass new laws that recognizes the rights of the ocean and the community’s rights to a healthy ocean. For that initiative specifically, we partner with Legal Rights for the Salish Sea (Gig Harbor community group) to seek rights for the endangered Southern Resident Orcas.

We are also part of the first regional ‘Rights of Nature’ initiative, working with Pacific island nations to draft a new Convention on the Rights of the Pacific Ocean. The kick off meeting has led to a statement on agreed to principles and commitments by the participants, and the start of the research and outreach needed to gain support for the Convention is underway.

Last but not least, Organización para la Conservación de Cetáceos (OCC) are long-standing partners, with whom we have now drafted a proposal to share with Parliament to designate the Whale and Dolphin Sanctuary in Uruguay as a legal entity that has rights.

Where is ‘Ocean Rights’ happening internationally?

Aside from ELC’s initiatives, we are beginning to see the Earth Law Framework in various forms. For each of five components, there are success stories.

1. Ocean as a Legal Entity

In 2011, there was a case in Belize where the government sued shipowners for harm to the barrier reef, which is a UNESCO World Heritage site. In this case, the government asserted that the reef was not property and they were instead guardians of it.

The recognition that the Barrier Reef was not property allowed a higher award for damages finding that damages were recoverable for both physical and environmental damage and that the damage done reflected intangible values that couldn’t be evaluated in monetary terms.

This recognition allowed the shipping company to be found liable for the damages caused to the reef, with a value of $2700 per square meter of injured reef and an award of over $11 million to the Government for the damage caused and to help restore the reef.

This case not only shows how taking an ecosystem out of the realm of property furthers protection and restoration but also shows how different economic standards are beneficial as well.

2. Codify Rights

In Ecuador, Rights of Nature was put into the Constitution in 2008. The Galapagos Marine Reserve is managed using what is called the Special Regime, or Special Law of the Galapagos. In this law is a guiding principle to achieve equilibrium or harmony among society, the economy and Nature, and to respect the Rights of Nature.

As a result the Galapagos implemented high standards to protect Nature. There are 27,000 people on the islands, and the islands are managed by maintaining 97% of the territory as protected, with 3% for the population (this includes tourism). It is illegal to harm the 97%. Some others standards include no industrial fishing, harming sharks is a criminal offense, economic activities are limited to permanent local residents, and environmental impact studies determined the limit on the amount of boats that travel between the islands.

There have been 3 cases involving sharks in the Galapagos Marine Reserve and a more recent one involving coastal mangroves. All ruled in favor of Nature, noting that Nature has rights, and that the state needs to guarantee those rights.

Ecuador shows how codifying the rights of nature is important to having effective and enforced marine protected areas.

3. Guardianship

In New Zealand we have an example of the guardianship criteria of the framework, human representation of Nature New Zealand created the Hauraki Marine Gulf Park in the year 2000 and its Sea Change Marine Spatial Plan proposes the recognition of the Park’s rights by calling on communities to “think of the environment as a being in its own rights.”

The Plan also creates a guardianship system with the local Iwi communities, giving them the judgement over issuing permits for extraction and human activity. It also calls for guardianship to be “practiced by all” and every person to be given opportunities to participate in guardianship activities, such as to become involved in decision-making, monitoring programs and restoration projects.

4. Rights of Community

In the Philippines, law permits any citizen to file an action before the courts for violations of environmental law (very much different than here in the US and most places in the world).

The Philippines Earth Justice Center sued the government in 2015 to protect the Tañon Strait from oil exploration and development. In this case, the petitioners were able to represent the marine mammals of the Tanon Strait as guardians because the primary steward, the government, had failed in its duty to protect the environment by granting an oil exploration permit.

The court noted “the right to a balanced and healthful ecology does not have to be stated in law- it just exists,” ruled in favor of nature, and reversed the contract that was granted to the oil company, permanently banning exploration in the Strait.

This case shows how giving the community the right to represent the ecosystem, allowing the ocean and its species to have standing in the courts, further protection by holding industry and government accountable.

5. New Standards

Lastly, we have the Marae Moana Act of the Cook Islands, where the entire Exclusive Economic Zone, or marine space, is declared as a marine sanctuary. This Sanctuary is a great example of new standards for decision-making. Particularly, the Marae Moana uses governance criteria where the highest objective is conservation.

What they did in the Cook Islands that is so much different than most marine protected areas, is they protected the whole area outright, with no large-scale fishing and seabed mineral activities permitted within 50 nautical miles of the islands.

So you start by protecting everything, then you decide if and where activities are permitted through a process of impact studies, advisory opinions and council approval. The primary purpose of the management act is conservation, and it explicitly says all secondary uses must be consistent with the primary purpose. So now if activities like fishing or seabed mining are on the table, those wishing to undertake those activities must make the case that it will not have an adverse impact on the Sanctuary.

This flips the burden of proof and truly creates a protected area. Though the Marae Moana does not specifically give rights or declare the area as a legal entity, it provides a great example of the standards that we can aspire to in order to shift towards more holistic management that will allow us to live in harmony with the Ocean.

What is one thing you want to leave the readers with today?

I would like to quote one of my biggest inspirations for this work, Dr. Sylvia Earle, who says “No Blue, No Green.”

I encourage every one of us to connect, or reconnect, with the world around us. To really think about where our products come from, and where they go, where our water and air comes from.

Without the Ocean, we would not be here. Little organisms in the Ocean actually supply the oxygen for every other breath we breathe (50% of the world’s oxygen). When we reconnect, we have a great appreciation for how dependent we are on the Ocean, and a healthy Ocean at that. When we see ourselves as kin rather than owners of nature for human ends, then the relationship we have with the ocean transforms. Maybe then our behaviors will change, and we will become responsible stewards.

So doing our part, whether it be reducing plastic use, creating marine protected areas, or reducing fishing pressure, not only conserves the Ocean and its right to exist, but our very existence as well.

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