Earth Jurisprudence and its Consideration of Animals

By Janice Cox from World Animal Net

World Animal Net (WAN) is an animal protection organization with its roots and mission firmly embedded in the desire to build a more just and compassionate world for animals; one where they no longer suffer and die – often needlessly and excruciatingly painfully – at the hands of humans. This quest has taken us on a long and deep journey into the international policy realm, where we have worked on advocacy with many international/inter-governmental organizations, including the United Nations (UN). Through this advocacy we have delved into the root causes of animal exploitation and abuse and have come to realize that the major drivers of these are the self-same drivers responsible for the exploitation and degradation of nature. 

These drivers form a complex, interlinked web, but they all stem from humankind’s values and priorities – fueled by an increasing focus on economic growth and wealth creation at the expense of social equity and environmental protection.

Economic Growth and Exploitation of Nature

The adoption of economic growth as the primary development paradigm has led humankind into a destructive mindset that treats nature as a commodity and animals as “productive assets” to be exploited in search of profit. Yet, continuous growth is impossible in a world with rising populations, limited natural resources and massive human-driven environmental destruction. 

The exploitation of nature and animals is now becoming ingrained in values and policy. Even the concept of “sustainable development” (particularly “sustainable use”) is being exploited by those favoring consumptive use.  This is part of a bigger picture where natural resource and energy demand has increased over time, with more animal use, land use, extraction, degradation and pollution than ever before. The rising resource demand from industrialized countries and emerging economies depends on resources located in the Global South. Driven by the economic growth paradigm, many governments in the Global South now advocate for natural resource exploitation as a path to greater socio-economic development.

We need greater recognition that development is not just economic. It is qualitative as well as quantitative. Most importantly, it should be about well-being and quality of life – about flourishing: for nature, people and animals. 

Earth Jurisprudence

The concept of sustainability is often presented with reference to its three pillars – economic, social and environmental. Policymakers often act as though the economy is at the base of everything. However, these are both flawed models. In reality, the environment – land, water, atmosphere, and the lifeforms surviving as interconnected parts of this natural world – are at the core of everything and central to our survival. 

This is why WAN is fully supportive of a shift towards Earth Jurisprudence, prioritizing and protecting the natural world. It is time for a new ethical approach which recognizes and addresses our current skewed values.  Indeed, the survival of our planet, and thus human- and animal-kind’s survival, depend on this. 

Animals and Earth Jurisprudence

There have been some interesting – largely philosophical – debates about the rights accorded to animals under Earth Jurisprudence. In a comparative analysis of the status of animals in Animal Law and Earth Jurisprudence, Glen Wright states that animals are not accorded any rights in Earth Jurisprudence over and above those granted to all other components of the Earth system. Rather, all natural subjects hold the same basic ‘rights’. In his book Wild Law which outlines the legal approach of Earth Jurisprudence, Cormac Cullinan simply notes that “the starting point for humans is the principle that each member of the Earth Community should be at liberty to fulfil its role within the Earth Community”. However, this does not deal with the complex matter of differing and often competing needs and interests of various components of the earth system. When asked whether Earth Jurisprudence would entitle a human hunter to shoot a zebra, Cullinan responded that this would depend on the circumstances - “different communities will have different versions of Earth Jurisprudence”, based on the ecological characteristics of the locality, their local customs, and their relationship with nature.

Melissa Hamblin notes that at present, the regulation of animal industries is guided by human interests, with profitability enshrined as the core value. Modern animal agriculture, facilitated by these regulatory regimes, has led to a well-documented decrease in animal welfare and negative impacts on the environment. She argues that an Earth Jurisprudence approach to animal industries would reframe regulation so that the core concern would be improving humans’ relationships with other members of the Earth Community. In particular, an Earth Jurisprudence approach to animal agriculture would require smaller operations, improved welfare standards, a strong focus on the environmental impacts of the entire system and better consumer education.

Animal Sentience

An important consideration in any reflection on the role of animals in Earth Jurisprudence is that animals have an intrinsic value and status beyond their role as part of an ecosystem. They are “sentient beings who share with us consciousness, feelings, perceptions – and the ability to experience pain, suffering and states of wellbeing.”

Animal sentience is now widely supported by the fields of animal behavior, neuroscience and ethology. It was explicitly recognized in the Cambridge “Declaration on Consciousness”, signed by a prominent international group of cognitive neuroscientists, neuropharmacologists, neurophysiologists, neuroanatomists and computational neuroscientists. Further, the European Union has officially recognized animals as sentient beings in the Lisbon Treaty and requires Member States to “pay full regard to the welfare of animals”. 

Animal Law and Earth Jurisprudence: A reconciliation?

Wright suggests that Animal Law and Earth Jurisprudence could be appropriate vehicles to “reconcile Animal Rights and Environmentalism”. We agree there is scope here, and recognize the importance of tackling the “common enemy” in the Western concept of property and the fact that current policy is guided by human interests. We also appreciate his view that both areas of law need to be developed significantly and in ways which respect and advance the other. 

John Knox, the UN Special Rapporteur on Human Rights and the Environment states: “Human rights and environmental protection are interdependent. A safe, clean, healthy and sustainable environment is necessary for the full enjoyment of human rights, including the rights to life, to the highest attainable standard of physical and mental health, to an adequate standard of living, to adequate food, to safe drinking water and sanitation, to housing, to participation in cultural life and to development, as well as the right to a healthy environment itself ...”

Exactly the same is true for animal rights: Animal rights and environmental protection are also interdependent. 

While animal law has not yet reached the level of development of human rights law, it is evolving. The World Organisation for Animal Health (OIE), an international organization with 181 Member Countries, has agreed a number of international standards on animal welfare based on sound, internationally-accepted science and which references the “ethical responsibility to ensure the welfare of such animals to the greatest extent practicable”. The OIE’s work is supported by Regional Animal Welfare Strategies, which have been validated for every geographical region of the world and aim for the implementation of the OIE’s international standards and the progressive development of animal welfare. 

WAN has developed a “Model Animal Welfare Act” (the MAWA) to provide “best practice” for animal law, based on current realities. This may be a useful starting point to consider legal protections of animals which need to be reconciled with environmentalism. As we say within the MAWA: “The main reasons for introducing animal welfare legislation should be grounded on this ethical approach, recognizing and appreciating the need for reverence for life, and comprehensive practical care and protection.”

The lives of humans affect those of our fellow animals – both directly and indirectly – in many ways. We know that animals experience pain and suffering and have the potential to experience states of well-being. We also know that they have needs, interests and emotions that are important to them. Our actions can influence an animal’s physical and psychological well-being, freedom and even its life. Thus, humans have a clear moral duty to protect the welfare, and the lives of, other animals. In time, the fundamental protections of animals should be enshrined into rights. But in the meantime, they remain couched in less absolute terms.

For example, the “Fundamental Principles” in the MAWA include the internationally-accepted ‘Five Freedoms’:

1. Freedom from Hunger and Thirst and Malnutrition
2. Freedom from Physical and Thermal Discomfort
3. Freedom from Pain, Injury and Disease 
4. Freedom to Express Normal Patterns of Behavior 
5. Freedom from Fear and Distress

Do these not seem to echo the very sentiments expressed by Knox about human rights, but in relation to animals?

As Glen Wright said, both Animal Law and Earth Jurisprudence are very much works in progress. Given that both aim for similar legal reform and face similar challenges in achieving this, we should ensure that an advancement of Animal Law or Earth Jurisprudence leads to an advancement of the other. WAN will follow and champion the call for Earth Jurisprudence. We call upon Earth Jurisprudence to take into its scope the full and ethical protection of animals.

In the words of Henry Beston (from the Outermost House):

“We need another and a wiser and perhaps a more mystical concept of animals. Remote from universal nature and living by complicated artifice, man in civilization surveys the creature through the glass of his knowledge and sees thereby a feather magnified and the whole image in distortion. We patronize them for their incompleteness, for their tragic fate for having taken form so far below ourselves. And therein do we err. For the animal shall not be measured by man. In a world older and more complete than ours, they move finished and complete, gifted with the extension of the senses we have lost or never attained, living by voices we shall never hear. They are not brethren, they are not underlings: they are other nations, caught with ourselves in the net of life and time, fellow prisoners of the splendor and travail of the earth.” 

Earth Jurisprudence should be developed in a way that provides the rights needed to ensure flourishing –  for ecosystems and the individual parts of the greater whole, including people and animals. A deep and intuitive understanding of the value and interconnectedness of all of life on earth requires no less than this. If this can be achieved our ethics will continue to develop towards a universal harmony with nature. 

Then we will find that Environmental Rights are Human Rights are Animal Rights.

---

[1] Potsdam Institute for Climate Impact Research. Four of nine planetary boundaries now crossed. https://www.pik-potsdam.de/news/press-releases/four-of-nine-planetary-boundaries-now-crossed

[2] Heinrich Böll Foundation, European Center for Institutional and Human Rights. Tricky Business: Space for Civil Society in Natural Resource Struggles. 8. Dec. 2017. https://www.boell.de/en/2017/12/07/tricky-business?dimension1=division_demo 

[3] World Animal Net. Structural and Systemic Barriers to Sustainable Development.  http://worldanimal.net/world-animal-net-blog/item/446-structural-and-systemic-barriers-to-sustainable-development 

[4] Sustainability Advantage. 3 Sustainability Models. http://sustainabilityadvantage.com/2010/07/20/3-sustainability-models/ 

[5] Wright, Glen. Animal Law and Earth Jurisprudence A Comparative Analysis of the Status of Animals in two Emerging Critical Legal Theories. http://www.glenwright.net/files/Animal%20Law%20and%20Earth%20Jurisprudence.pdf

[6] Cullinan, C., Wild Law: A Manifesto for Earth Justice (Green Books, Totnes 2003) at 78.

[7] Hamblin, M., ‘Wild Law and Domesticated Animals: a wild law approach to the regulation of farming industries in Australia’ (Wild Law Conference, Griffith University 16-18 September 2011).

[8] World Animal Net. Model Animal Welfare Act. http://worldanimal.net/proposal-for-the-wording 

[9] The Cambridge Declaration on Consciousness. 7 July 2012. http://fcmconference.org/img/CambridgeDeclarationOnConsciousness.pdf

[10] Wright, Glen. Animal Law and Earth Jurisprudence A Comparative Analysis of the Status of Animals in two Emerging Critical Legal Theories.

[11] Knox, John H.  UN Special Rapporteur on Human Rights and the Environment. United Nations Human Rights Special Procedures. Framework Principles on Human Rights and the Environment. 2018. http://www.ohchr.org/Documents/Issues/Environment/SREnvironment/FrameworkPrinciplesUserFriendlyVersion.pdf?platform=hootsuite

[12] Cox, Janice H, MBA, and Lennkh, Dr. iur. Sabine. World Animal Net. Model Animal Welfare Act. A Comprehensive Framework Law. http://worldanimal.net/our-programs/model-law-project

[13] Earthlings - Animals Are Other Nations https://www.youtube.com/watch?v=Qf2j9w8HMhA&app=desktop

ELC to Attend Puebla’s Living Rivers Forum and Festival

Puebla, Mexico. Photo (unedited) by Russ Bowling; available at: https://www.flickr.com/photos/robphoto/2606385574

By Helen Louise George

Rios Vivos

Rios Vivos has two parts: a conference of speakers (called the Forum) and a multi-day display of arts and music (called the Festival). The first will emphasize education and collaboration, while the second will be a celebration of the local Atoyac River and other waterways.

The Forum (March 19-20): This event will feature prominent voices, from Mexico and abroad, speaking on new approaches to restoring rivers to health. One of these approaches is establishing legal rights for rivers. Featured speakers include former Minister of the Environment of Mexico City Martha Delgado, seasoned Pueblan rivers defender Veronica Mastretta, and the Governor of the State of Puebla, José Antonio Gali Fayad (Tony Gali), amongst many others. ELC’s close partner Cuatro al Cubo will speak on their initiatives, including  the plan to bring back to life those “invisible rivers” that have been built over by the megalopolis of Mexico City.

There will be international speakers, too. The incredible Tierra Digna – who won legal rights for Colombia’s Atrato River in the country’s Constitutional Court – will speak about their own experiences of protecting rivers. And the lead negotiator on behalf of securing legal rights for the Whanganui River in New Zealand, Gerrard Albert, will have a prerecorded speech, as well.

Last but not least, Directing Attorney Grant Wilson will also speak (in Spanish!) at the event to discuss ELC’s work on the Universal Declaration of the Rights of Rivers – an effort to define the rights to which all rivers are entitled. The goal of this initiative is to establish robust legal rights for every major river in the world within 20 years. Mr. Wilson will also update attendees on ELC’s collaboration with groups in Mexico working to establish legal rights for its waterways, as well as our rights of rivers projects in Nigeria, Brazil, the United States, and many other locations.

Great Pyramid of Cholula, outside of the City of Puebla. Photo (unedited) by André Vasconcelos; available at: https://www.flickr.com/photos/andrellv/4152386111

The Festival (March 17-22): The Festival will celebrate the sacred Atoyac River and also pay tribute to the environmental movement that seeks to protect and restore nature in Mexico. Activities include water singing on the banks of the Atoyac River (during World Water Day on March 22), dance, music, art, ceremony, sound healing, and more. The event will feature prominent artists and spiritual leaders from Mexico and worldwide – including ELC’s partner Danielea Castell of Water Harmony, who will travel from Canada. “Guardians of the water” will also lead ceremonies honoring the Atoyac and other precious rivers.

From left to right: Abuela Tonalmitl, Ehekamitl, Coyote Alberto Ruz.

From left to right: Alyosha Barreiro, Beleni Kumara, Cynthia Valenzuela, Grace Terry

Protecting the Atoyac

The Atoyac is one of the most polluted rivers in Mexico. Some have declared the river to be dead – although its supporters believe it can thrive once again. The Atoyac flows through the states of Puebla and Tlaxcala. Every day, almost 150 tonnes (over 32,1875 pounds) of organic waste is dumped into the river. It is also polluted by over 50 pollutants – including suspended solids, heavy metals, volatile organic compounds, and other contaminants from petrochemical, textile, and other industries.

Not only are its aquatic ecosystems devastated, the contaminated river raises health concerns for many of the 2.3 million people in the surrounding area. Serious disease risks include hemolytic anemia, kidney failure, and many others. And despite the severe pollution, farms rely upon the Atoyac to grow food for local communities.

However, local and national groups in Mexico are determined to restore the Atoyac to health. A diverse group of environmental leaders, local communities, governmental officials, businesses, and others are uniting to achieve this shared goal. Many of them will participate at the Living Rivers Forum and Festival.

In particular, ELC and our partners believe that securing fundamental legal rights for the Atoyac is a necessary step towards its recovery. What would this mean in practice? It would mean that the Atoyac has a legal right to, at minimum, enough flows to meet its basic ecological needs. It would mean that the government, local companies, and communities would create enforceable plans to stop polluting the Atoyac – and to clean up the pollution that has already occurred.  And it would mean that the Atoyac would have a seat at the table for any decisions affecting its well being, and be represented by one or more legal guardians. These are only a few examples of many.

The Atoyac River. Photo by Arnold Ricalde.

Protecting the Magdalena and Other Rivers in Mexico

During its trip to Mexico, ELC will also meet with environmental leaders, politicians, and stakeholders in Mexico City to advance the local rights of rivers movement. Recently, Cuatro al Cubo, with legal support from ELC, led an effort to secure legal rights for waterways in Mexico City. As a result of this joint effort, the Legislative Assembly of the Federal District (Asamblea Legislativa del Distrito Federal) included the rights of waterways within the recently approved Water Sustainability Law of Mexico City (Ley de Sustentabilidad Hídrica de la Ciudad de México).

While the law is still pending final publication, once implemented, it will be a landmark victory for waterways in Mexico City. This law can help restore to health the Magdalena River, which is the city’s last free-flowing river, as some 45 others are constrained in underground pipes and buried under layers of concrete.

Eventually, our partners believe, the rights of rivers can be recognized nationwide, such as through recognition in the General Water Law in Mexico (Ley General de Aguas en México). By doing so, Mexico can be a global leader in the movement to establish legal rights for rivers, creating a model for all other countries to follow. Having worked with many of the amazing environmental defenders in Mexico, I am confident that this dream will come true.

Horses by the Magdalena River. Photo by Luc Forsyth.

Next Steps

As we continue to fight for the rights of rivers across the globe, we must look to evolve our legal system into something better. We created our laws, and we can change them, too.  We should not feel restricted by what we have done, but rather empowered by what we can do. And giving legal rights to rivers – including the Atoyac, Magdalena, and others in Mexico – is the blueprint for restoring these precious waterways to health. We look forward to continuing this work with our partners in Mexico.

An Earth Law Solution to Ocean Plastic Pollution

By Michelle Bender

Photo by Michelle Bender

Plastic pollution is emerging as a top threat to ocean ecosystems. By 2025, there could be 1 ton of plastic for every 3 tons of fish in the ocean. Plastic debris affects nearly 700 species worldwide through entanglement and ingestion, alters natural biological and chemical processes, provides a means for the introduction of toxins into the food web, and costs the U.S. economy millions of dollars annually. The majority of this debris comes from land-based sources (e.g., plastic manufacturers, processors, landfills, sewage overflows, litter). With only 14% of plastic packaging and containers recycled in the U.S., 75% of leakage is due to uncollected waste.

Past efforts to address plastic pollution have failed in stemming the flow from land to sea. As the only high income country listed in the top 20 contributors to ocean plastic pollution, the U.S. plays a critical role in managing the waste stream of plastics. The absence of a comprehensive plastic pollution law and policy framework provides an opportunity for federal agencies to explore how and whether existing law and policy mechanisms can be used to address the threat of plastic pollution. This report provides an example by analyzing the Clean Water Act and relevant provisions.

The inability of environmental law to address growing threats, such as plastic pollution, represents the need for a paradigm shift. The environmental laws of the 1970s have yet to fulfill their goals and purposes. The Clean Water act has yet to prohibit discharges and produce clean water because it allows pollution under permitting systems.

As a result, this report attempts to challenge our assumptions behind current environmental law by introducing Earth Law, a system of law that recognizes nature’s inherent rights to exist, thrive and evolve. An Earth Law approach would prohibit the discharge of plastic into our nation’s waterways by considering the health of all Earth members. Therefore, this report proposes that the threat of plastic pollution will only be controlled if humans govern themselves in a way that recognizes their relationship with nature.

I. Introduction

a. The problem

Scientific studies indicate that an emerging threat faces our freshwater and marine ecosystems: plastic pollution.[i] Since plastics are cheap, versatile and strong,[ii] and deliver significant societal benefits (e.g., energy savings, consumer protection, healthcare innovations),[iii] it comes as no surprise that plastic production has increased exponentially since the 1960’s.[iv] If current practices continue as usual, by 2025 there could be 1 ton of plastic for every 3 tons of fish in the ocean.[v] With the ability to persist for up to 4 centuries,[vi] plastic products are harming freshwater and marine ecosystems.[vii]

b. Types of plastic

Plastics consist of a variety of synthetic organic polymers and additives, giving each plastic product its unique properties.[viii] Plastic is generally split into two categories: micro- and macro-plastics. Microplastics (e.g., pellets, granules) are smaller than 5 mm, found throughout the water column, and compose 95% of the plastics in the ocean.[ix] Not readily seen, they receive less attention than macroplastics, which are visible pieces of debris, larger than 5 mm, and usually found on surface water or coastal beaches.[x]

c. Impacts of plastic

Plastics pose a significant threat to ocean and freshwater ecosystems and the benefits humans receive from them.[xi] The amount of plastic debris discarded by the commercial fishing industry has doubled over the last 50 years (from 340,000 tons in 1975[xii] to 640,000 tons annually[xiii]).

First, plastics threaten the survival of many species of wildlife, negatively impacting nearly 700 species worldwide.[xiv]

• Larger items, such as fishing nets, entangle and kill wildlife.[xv]

• Smaller items ingested by wildlife lower fitness by decreasing fertility.[xvi]

• As plastic breaks down, it becomes less buoyant and sinks to the ocean floor.[xvii] This can lead to hypoxia (oxygen deficiency), dead zones, and a shift in sediment properties necessary for sex- determination in animal eggs.[xviii]

• Plastics transport invasive species.[xix] As a medium for long distance dispersion, plastics carry species to uninhabited areas where they compete with native species. For example, a study in the Western Atlantic showed insect eggs on 24% of the plastic pellets sampled.[xx]

Second, plastic products serve as a conduit for the release and travel of toxins into and through freshwater and marine food chains, posing a threat to wildlife, public health, and the fishing industry.

• Plastic, mistaken as food, is ingested at all levels of the food web and travels through the food web via a process known as bioaccumulation (i.e., the accumulation of a substance in an organism’s tissue due to a greater intake rate than excretion or metabolic rate).[xxi]

• Plastics cause two chemical impacts: the release of additives (e.g., BPA), and the attraction and subsequent release of toxins (e.g., DDT, PCBs).[xxii]

• Plastic fragments can transport contaminants, increase their environmental persistence, and concentrate organic pollutants up to 106 times that of surrounding seawater.[xxiii] The chemicals present in plastic pollution, such as PCBs, lead to reproductive disorders or death, increase the risk of diseases and alter hormone levels.[xxiv]

Third, plastic pollution is costly.

• Beach cleanups cost coastal communities millions of dollars each year.[xxv] For example, Texas spends approximately $14 million a year cleaning beaches; and San Francisco spends approximately $6 million per year picking up cigarette butts.[xxvi]

• Plastics on beaches lower aesthetic value and therefore revenue for coastal communities and the tourism industry.[xxvii]

• Losses to the fishing industry occur through vessel damage, decreased fertility and ghost fishing (i.e., the continued trapping and killing of marine life by discarded fishing net). In the U.S., an estimated $250 million worth of lobster is lost to ghost fishing annually and four to ten million blue crabs are trapped in ghost fishing gear each year in Louisiana.[xxviii]

• Plastic litter fouls propellers and clogs the water intake of vessels.[xxix] This reduces fishing opportunities, and increases accidental death. In the U.S. alone, cleanup and boat repairs due to marine debris costs over $1 billion a year.[xxx]

d. The sources of plastic pollution

Rivers are highly polluted with plastic products from storm water runoff, wastewater and industrial effluent.[xxxi] As much as 80% of marine debris comes from land-based sources (e.g., plastic manufacturers, processors, landfills, sewage overflows, litter)[xxxii] and 60- 80% of all marine debris is plastic.[xxxiii]

Of the leakage that comes from land- based sources, 75% comes from uncollected wastes and 25% escape from within the waste management system.[xxxiv] Unfortunately, 80% of plastic waste is too low in value to incentivize recovery and recycling.[xxxv] As a result, an estimated 4.8 to 12.7 million metric tons of plastic waste entered the ocean in 2010 and today there is an estimated 580,000 plastic pieces per square kilometer.[xxxvi]

II. Addressing plastic pollution through environmental law and policy

As the only high income country listed in the top 20 contributors to ocean plastic pollution, the U.S. plays a critical role in managing the waste stream of plastics.[xxxvii]

a. National Pollutant Discharge Elimination System

The Environmental Protection Agency (EPA) regulates the discharge of pollutants into our nation’s waters.[xxxviii] Despite a final rule in 1987 controlling the amount of resin released from plastic manufacturing facilities,[xxxix] data suggests that “pre-production plastic resin pellets accidentally released from plastic processors contribute approximately 10% by count to the plastic debris problem.”[xl]

So, water-quality-based effluent limits (WQBELs) can significantly reduce the discharge of plastic waste. This next line of defense is based on “the amount of pollutants in the water without regard to the cost or technology availability.”[xli]

b. Water Quality Standards

The EPA creates national water quality criteria standards—standards upon which States may choose to build in more stringent measures at the state level[xlii]— based upon the latest scientific knowledge on the effects of the presence of pollutants.[xliii]

Mounting scientific evidence indicates that plastic poses a threat to our nation’s drinkable, fishable, and swimmable waterways. This scientific information indicates that the water quality criteria should be reviewed to determine whether plastic should be considered a criteria pollutant.

The EPA already recognizes that most trash that ends up in the ocean comes from land. The agency has developed the Trash Free Waters initiative “to reduce the amount of trash and litter that enters streams and rivers, lakes and bays, beaches and coastlines, and ultimately the world’s oceans”[xliv] and the National Marine Debris Monitoring Program, to monitor the sources and end-life of trash.[xlv] These programs include outreach, education, research and partnerships,[xlvi] but fail to enforce change (e.g., regulations and initiatives) through their existing statutory authority.

c. Total Maximum Daily Loads

Next, States are required to identify impaired waters,[xlvii] those that do not meet water quality standards, and establish limits on pollutants causing the impairment.[xlviii]

Establishing nationwide limits on the amount of plastic allowed in watersheds can significantly reduce the flow from land to sea. Current impairment and allowable limits do not take into account microplastics because this form of trash (i.e., anthropogenic debris that can be trapped by a 5 mm mesh screen) is smaller than 5mm.[xlix]

For example, in the Los Angeles watershed, 90% of the plastic debris by count and 13% by weight is micro-plastic smaller than 5 mm, and goes unregulated and uncaptured.[l] In California and the North Pacific Gyre, densities of microplastics have tripled during the last decade.[li] The definition, then, fails to address the issue of plastic pollution, threatening the coastal waters of California.[lii]

This presents an opportunity for the EPA to adopt a definition of Trash that includes micro-sized debris and therefore address the vast majority of plastic debris. Similarly, the EPA can initiate rulemaking for the implementation of Trash TMDL’s on all waterways,[liii] ensuring limits address trash of all sizes.

d. Multi-Sector General Permits

Under Section 205 of the Water Quality Act, which amended the Clean Water Act in 1987, the EPA created requirements for “storm water discharges associated with industrial activity”.[liv]

Therefore, more stringent requirements can be placed on plastic manufacturing facilities located on the coast to prevent the loss of pre- production plastic to storm water. The EPA can ensure the strongest control measures are attached to the permits in order to prevent the leakage of plastic from land to water. The EPA already requires that “facilities that handle pre-production plastic must implement best management practices (BMPs) to eliminate discharges of plastic in storm water.”[lv]

To promote further clarity and compliance, the EPA can codify required practices for implementation by pre-productions plastic facilities rather than leave it to be determined on a facility-by-facility basis as is the current practice. Evidence suggests “pre-production resin pellets accidentally released from plastic processors contribute approximately 10% by count to the plastic debris problem.”[lvi] Yet, California is the only state to regulate pre-production plastic[lvii] under state implementation of the CWA.

Regulation and 1 mm mesh screens downstream could significantly reduce the flow of plastic pollution.

Under the Porter-Cologne Water Quality Control Act, the Preproduction Plastic Debris Program controls the leakage of preproduction plastics[lviii] by requiring plastic manufacturing, handling, and transportation facilities to implement[lix] minimum BMPs to control discharge.[lx] As part of the permits, a 1mm mesh screen must be installed downstream from all preproduction plastic locations.[lxi]

If this program were implemented nationwide, the amount of pre-production plastic found in our waterways could be greatly decreased. Additionally, if MSGP permits included minimum BMPs and the requirement of 1 mm mesh screens downstream from facilities; General Permits would help reduce the flow of plastic pollution.

III. An opportunity for Earth Law to address plastic pollution

Earth Law (i.e., Jurisprudence) is an emerging field seeking to address the fundamental flaws of current environmental law and policy. This form of law explicitly recognizes “the interdependence among humans and the environment” and respects ecosystem relationships.

With an overarching purpose to support “a mutually beneficial relationship between humanity and the community of life on Earth,” humans govern themselves in ways, which benefit all beings and ecosystems.[lxii]

Earth Law governs humans as co-equal parts with other Earth members due to the assumption that all beings have the same fundamental rights.

Earth Law governs humans as co-equal parts with other Earth members due to the assumption that all beings have the same fundamental rights.[lxiii] This idea stems from a basic flow of logic: “Rights originate where existence originates. That which determines existence determines rights,” and all members come from the same place of existence, Mother Earth.[lxiv] Just as humans have rights based on our existence and being, so too does nature.

Thomas Berry defines rights as the freedom for all beings to fulfill their duties and responsibilities in the Earth community. In particular, there are three rights for every member: the right to be, the right to habitat and the right to fulfill its role in the ever-renewing processes of the Earth community.[lxv] As co-equal members, humans “have no right to prevent other components of the Earth community from fulfilling their evolutionary role.”[lxvi] Therefore, Earth Law establishes nature’s inherent rights to exist, thrive and evolve in environmental law and policy.

a. Earth Law as a rights-based movement (the necessity of conferring rights onto nature)

An Earth-rights movement is not merely an attempt to create new laws or change existing laws, it seeks to change our worldview and values.

As Christopher Stone writes, a rights-based movement is one that seeks to give rights to a new entity, those traditionally not seen to have any.[lxvii] Only when we confer rights onto a new member of the Earth community, human or non-human, can we guarantee it equal status as other right bearing entities.[lxviii]

Consider the Endangered Species Act.[lxix] Its goals and purposes make it seem like we have given species the right to life (i.e., not go extinct). However, when citizens bring suit for violations, they can only show “standing”[lxx] if they themselves have been injured and their injury can be redressed, with nothing to do with the injury to the species.

If animals and plants are given rights then they themselves will have standing, allowing citizens to speak on their behalf to ensure their rights are not violated. This may seem absurd or unthinkable, but throughout history, the extension of rights to a new entity has always seemed crazy to some (e.g., people of color, women and the LGBT community).[lxxi]

There will always be resistance to considering a historically viewed “object” as a co-equal part the Earth community.[lxxii] Therefore, the emerging Earth-rights movement seeks to illustrate nature as valued for itself, no longer viewed as an object or property, but as a subject with rights.[lxxiii]

b. Addressing the economic system

Another essential component of Earth Law is the qualitative, not quantitative, difference in rights. All rights are species specific (i.e., rivers have river rights, insects have insect rights and humans have human rights), but one is not superior to another. As a result, economic considerations (e.g., cost-benefit analysis) are left out of policy discussions. Unrestrained economic growth can be attributed to the present decline in our natural systems.[lxxiv]

Particularly, the use of cost-benefit analysis (CBA) reinforces our assumptions that nature is a resource to be controlled. CBA requires that we convert the benefits of nature (e.g., clean water, biodiversity) into dollars. It does not allow nature to be valued for itself. Earth law addresses this fundamental flaw by advancing economics in a way that improves relationships (i.e., ecological economics).

By changing the language of “natural capital” and “ecosystem services” to “natural worth” and “ecosystem integrity,” economics stops reinforcing nature as a resource and property. As a result, the economic system serves the law, not the other way around.

c. Earth Law Center Ocean Initiative: Earth Law in practice

The first step in applying the holistic principles of Earth Law to ocean health would be to create an Earth Law framework. Earth Law Center will be launching the final version at EarthX in April 2018, see here for the draft version.

An Earth Law approach aims to benefit the whole Earth community (i.e., humans, fish, water, birds): To ensure all waters are healthy and thriving; meaning water quality is such that:

a) All Earth members’ rights of water as a source of life is not violated;

b) Waters remain free of contamination, pollution and toxic or radioactive waste;

c) Biological, physical, chemical and ecological processes which rely on water continue without human disruption and;

d) Future generations are ensured the same inherent rights.[cvii]                               

States could include an Earth Law approach when revising or adopting water quality standards.[i] New standards are to be “based upon their uses” and “shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of this Act.”[ii] Water quality standards are based upon our use of water, underscoring the assumption that nature is an object.

Additionally, the use of “enhance” signifies that the water quality is already degraded and needs to be improved, and that pollution has already occurred. From an Earth Law perspective, such language is unnecessary because discharge would not occur at levels that would require enhancement (if discharge is allowed at all). This is because an Earth Law-based approach would create water quality standards based on the best and most recent science determining what keeps water and species healthy:

E.g., Water quality standards shall be based upon levels necessary to maintain a healthy and thriving body of water and to not only protect the health of the water, but the health of all Earth members whom depend on the water as their source of life.

Earth-based language in the Clean Water Act would ensure the rights of water, humans, wildlife, plants, and vital systems that rely on healthy water. Water has the right to be water; just like humans have the right to be human. Also, water has the right to continue its vital cycles and processes free from human disruptions; humans have the right to drink uncontaminated water and eat toxin-fee fish; fish have the right to reproduce and be healthy.

By incorporating nature’s rights into the Clean Water Act, discharge would be managed based on what allows the water and all organisms whom depend on the water to be healthy. Arguably, this would mean not allowing plastic discharges into waterways and would surely require the regulation of microplastic pollutants.

IV. Conclusion

The CWA set the goal of attaining water quality standards by 1983. This date is over 30 years past due.

Between 4.8 and 12.7 million metric tons of plastic waste entered the ocean in 2010.[i] As a result, plastic pollution is degrading water quality, affecting biodiversity[ii] and posing potential human health impacts.

The CWA set the goal of attaining water quality standards by 1983. This date is over 30 years past due. Of the water bodies assessed, 54.9% of rivers and streams, 69% of lakes, 78.4% of bays and estuaries and 88.9% of the coastal shoreline are listed as impaired nationally.[iii] The assumption that certain levels of pollution are acceptable as long as it is “permitted,” underscores the flaws of our current governance system.

By establishing legal systems that recognize that the health and welfare of humans is dependent on our interconnected relationships within the Earth community, systemic problems, such as plastic pollution will be addressed. It’s time to further evolve the protection of the ocean. Our lives, health and well-being depend on the health of the environment.

---

[i] George Leonard & Andreas Merkl, Confronting Ocean Plastic Pollution at the Global Scale: New Insights and Strategic Opportunities, 1 (2015) (internal document).

[ii] Id. at 3.

[iii] The Declaration of The Global Plastics Associations for Solutions on Marine Litter, available at http://www.marinedebrissolutions.com/Declaration.

[iv] Jenna R. Jambeck et al., Plastic Waste Inputs from Land into the Ocean, 347 Science 768, 768 (2015) (Global plastic resin production increased by 620% from 1975 to 2012); Ocean Conservancy, Stemming the Tide: Land- based Strategies for a Plastic- Free Ocean, 4 (2015), available at http://www.oceanconservancy.org/our-work/marine-debris/mckinsey-report-files/full-report-stemming-the.pdf (With current production at 250 million tons this trend is expected to continue to 380 million tons produced by 2025).

[v] Leonard, supra at 3.

[vi] Ocean Conservancy, supra at 3 (2015).

[vii] For more information on the plastic products found in freshwater ecosystems see Martine Wagner et al., Microplastics in Freshwater Ecosystems: What We Know and What We Need to Know, 26 Environmental Sciences Europe 12, (2014).; Jessica Midbust et al., Reducing Plastic Debris in the Los Angeles and San Gabriel River Watersheds, Algalita Marine Research Institute (2014), available at http://www.bren.ucsb.edu/research/2014Group_Projects/documents/Bren-Group-Project-Thesis-Reducing-Plastic-Debris-in-the-Los-Angeles-and-San-Gabriel-River-W.pdf.; For more information on plastic products found in marine ecosystems see Chris Wilcox et al., Threat of Plastic Pollution to Seabirds is Global, Pervasive, and Increasing, PNAS Early Edition 1, (2015). Ocean Conservancy, supra.; Donald C. Baur & Suzanna Iudicello, Stemming the Tide of Marine Debris Pollution: Putting Domestic and International Control Authorities to Work, 17 Ecology L.Q. 71, (1990).; Jambeck, supra at 768.

[viii]José G.B. Derraik, The Pollution of the Marine Environment by Plastic Debris: A Review, 44 Mar. Pol. Bol. 842, 842 (2002).

[ix]Juliana A. Ivar do Sul & Monica F. Costa, The Present and Future of Microplastic Pollution in the Marine Environment, 185 Mar. Pol. Bul. 352, 352 (2014).; Ocean Conservancy, supra at 11.

[x] Matthew Cole et al., Microplastic as Contaminants in the Marine Environment: A Review, 62 Mar. Pol. Bul. 2588, 2589 (2011).

[xi] Ocean Conservancy, supra at 6.

[xii] F, S.C Gall & R.C. Thompson, The Impact of Debris on Marine Life, 92 Mar. Pol. Bul. 170, 170 (2015).

[xiii] Baur, supra at 82. (An estimated 50,000 fur seals from the Pribilof Islands population in the North Pacific Ocean die each year from entanglement). 

[xiv] Peter Kershaw et al., Plastic Debris in the Ocean, UNEP Year Book. 21, 26-28 (2011) (Studies link plastics to physiological stress, liver cancer, and endocrine dysfunction (female fertility and male reproductive tissues growth) in fish that ingest the plastic).

[xv] Murray R. Gregory, Environmental Implications of Plastic Debris in Marine Settings- Entanglement, Ingestion, Smothering, Hangers- on, Hitch- Hiking and Alien Invasions (2009), available at http://rstb.royalsocietypublishing.org/content/364/1526/2013.; Derraik, supra at 844.

(Plastic on the seafloor provides a barrier that inhibits gas exchange processes between the water and seafloor which leads to hypoxia (oxygen deficiency) and dead zones).

[xvi] Gregory, supra..; Derraik, supra at 844

(Plastic on the seafloor provides a barrier that inhibits gas exchange processes between the water and seafloor which leads to hypoxia (oxygen deficiency) and dead zones).; Cole, supra at 2592 (2011) (Plastics significantly alter the composition and properties of the seabed by increasing the permeability of sediment while decreasing its heat absorbance. Therefore sediment with plastics reaches lower maximal temperatures. This temperature difference may affect sex- determination in animal eggs, such as turtles).

[xvii] Ivar do Sul & Monica F. Costa, supra at 353.

[xviii] Id. at 353.

[xix] Cole, supra at 2589.

[xx] Kershaw, supra at 25-27.

[xxi] Ivar do Sul, supra at 353.; Chris Wilcox et al., Threat of Plastic Pollution to Seabirds is Global, Pervasive, and Increasing, PNAS Early Edition 1, 4 (2015).

[xxii] Derraik, supra at 846.

[xxiii] Charles James Moore, Synthetic Polymers in the Marine Environment: A Rapidly Increasing, Long- Term Threat, 108 Env. Res. 131, 133 (2008).

[xxiv] Baur, supra at 81.; UNEP & NOAA, The Honolulu Strategy: A Global Framework for Prevention and Management of Marine Debris, 9 (2011), available at http://www.unep.org/esm/Portals/50159/Honolulu%20Strategy%20Final.pdf.

[xxv] Moore, supra at 133..; Kershaw, supra at 28.

[xxvi] Baur, supra at 78.

[xxvii] United Nations, Resumed Review Conference on the Agreement Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 3 (2010), available at http://www.un.org/Depts/los/convention_agreements/reviewconf/FishStocks_EN_A.pdf.

[xxviii] Derraik, supra.

[xxix] UNEP & NOAA, supra at 8.

[xxx] Kershaw, supra at 28.

[xxxi] Ocean Conservancy, Trash Travels: From our Hands to the Sea, Around the Globe, and Through Time 2010, at 17, http://act.oceanconservancy.org/images/2010ICCReportRelease_pressPhotos/2010_ICC_Report.pdf.

[xxxii] Algalita, Credible Information and Statistics: The Magnitude of Plastic Debris (Dec. 1, 2015, 11:11 AM), http://www.algalita.org/credible-information-and-statistics/.

[xxxiii] Cole, supra at 2590.

[xxxiv] Baur, supra at 78..; Leonard, supra at 2.

[xxxv] Derraik, supra at 843.

[xxxvi] Ocean Conservancy, supra at 13.

[xxxvii] Id.

[xxxviii] Id. at 8.

[xxxix] Jambeck, supra at 770; Wilcox, supra at 1.

[xl] Jambeck, supra at 770.

[xli] Id. at 769.

[xlii] Baur, supra at 84.

[xliii] Earth law is an emerging body of law which establishes nature’s right to exist, thrive and evolve.

[xliv] Massachusetts v. EPA, 549 U.S. 497, 534, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (“EPA [cannot] avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time.”).

[xlv] 33 U.S.C. § 1311.; 40 CFR § 414.11.

[xlvi] § 1311(b, e); § 1314(b); § 1311(b)(2)(A).

[xlvii] § 1312(b)(2)(A); Natural Resources Defense Council v. U.S. EPA, 804 F.3d 149, 151 (2d Cir. R. 2015).

[xlviii] Organic Chemicals and Plastics and Synthetic Fibers Category Effluent Limitations Guidelines, Pretreatment Standards, and New Source Performance Standards, 52 FR 42522-01 (1987), WL 40 CFR 414 and 416.

[xlix] Moore, supra at 137.

[l] § 1311, 1342.

[li] U.S. Environmental Protection Agency, National Recommended Water Quality Criteria- Aquatic Life Criteria Table (Dec. 1, 2015, 3:36 PM), http://water.epa.gov/scitech/swguidance/standards/criteria/current/index.cfm.

[lii] § 1313(c).

[liii] § 1313.

[liv] § 1313(c).

[lv] Center for Biological Diversity, Petition for Water Quality Criteria for Plastic Pollution Under the Clean Water Act, 33 U.S.C. § 1314 (2012), available at http://www.biologicaldiversity.org/campaigns/ocean_plastics/pdfs/Petition_Plastic_WQC_08-22-2012.pdf.; U.S. Environmental Protection Agency, National Recommended Water Quality Criteria- Aquatic Life Criteria Table (Dec. 1, 2015, 3:36 PM), http://water.epa.gov/scitech/swguidance/standards/criteria/current/index.cfm. 

[lvi] § 1314(a)(1).

[lvii] U.S. Environmental Protection Agency, Marine Debris (Nov. 10, 2015, 3:30 PM), http://water.epa.gov/type/oceb/marinedebris/.

[lviii] U.S. Environmental Protection Agency, Marine Debris Laws and Regulations (Nov. 30, 2015, 2:49 PM), http://water.epa.gov/type/oceb/marinedebris/lawsregs.cfm.

[lix] U.S. Environmental Protection Agency, Marine Debris (Nov. 10, 2015, 3:30 PM), http://water.epa.gov/type/oceb/marinedebris/.

[lx] Known as section 303(d) listed waters.

[lxi] § 1313(d).

[lxii] § 1313(d).

[lxiii] Angela George and Linda L. Miller, Compliance with Trash TMDLs: Ten Years of Experience from Los Angeles County Unincorporated Areas, Department of Public Works (2014), available at https://www.casqa.org/sites/default/files/downloads/2-county_of_la_presentation-casqa_trash_webinar_7-29-14.pdf (Trash TMDL compliance in California generally involves the implementation of full capture or partial capture systems (combination of full capture and institutional measures), with 5 mm mesh screens. To date, California has spent approximately $7 million in installing these devices).

[lxiv] Moore, supra at 136 (according to the CA Regional Water Quality Control Board, Los Angeles Region).

[lxv] Id.

[lxvi] Resolution of the California Ocean Protection Council on Reducing and Preventing Marine Debris (2007), available at http://www.opc.ca.gov/webmaster/ftp/pdf/docs/Documents_Page/Resolutions/MarineDebris_Resolution.pdf.

[lxvii] Shavonne K. Stanek et al., Microplastic Contamination in San Francisco Bay (Nov. 30, 2015, 2:52 PM), http://www.sfei.org/sites/default/files/biblio_files/RMP15%20SOE%20Micoplastic%20Sutton%20FINAL%209-15%20%281%29.pdf.

[lxviii] U.S. Environmental Protection Agency, California Water Quality Assessment Report (Dec. 2, 2015, 9:24 AM), http://iaspub.epa.gov/tmdl_waters10/attains_state.control?p_state=CA, (California causes of impairment for 303(d) listed waters: 46 have been reported due to trash).

[lxix] U.S. Environmental Protection Agency, California Causes of Impairment for Reporting Year 2012 (Dec. 2, 2015, (9:25 AM), http://iaspub.epa.gov/tmdl_waters10/attains_state.control?p_state=CA#causes.

[lxx] U.S. Environmental Protection Agency, California Causes of Impairment for Reporting Year 2012 (Dec. 2, 2015, (9:25 AM), http://iaspub.epa.gov/tmdl_waters10/attains_state.control?p_state=CA#causes.

[lxxi] Wagner, supra at 12.; Kershaw, supra at 25-28.

[lxxii] Ivar do Sul & Monica F. Costa, supra at 359.

[lxxiii] Kershaw, supra at 25-28.

[lxxiv] 40 CFR § 401.15.

[lxxv] Wagner, supra at 17.

[lxxvi] U.S. Environmental Protection Agency, 2015 Multi- Sector General Permit for Stormwater Discharges Associated with Industrial Activity (MSGP)- Fact Sheet, 4 (2015), available at http://www2.epa.gov/sites/production/files/2015-10/documents/msgp2015_fs.pdf.

[lxxvii] Id.

[lxxviii] Id. at 7.

[lxxix] Id. at 4.

[lxxx] U.S. Environmental Protection Agency, 2015 Multi- Sector General Permit for Stormwater Discharges Associated with Industrial Activity (MSGP)- Fact Sheet, 5 (2015), available at http://www2.epa.gov/sites/production/files/2015-10/documents/msgp2015_fs.pdf.

[lxxxi] U.S. Environmental Protection Agency, National Pollutant Discharge Elimination System (NPDES) Multi- Sector general Permit for Stromwater Discharges Associated with Industrial Activity (MSGP), 4 (2015), available at http://www2.epa.gov/sites/production/files/2015-10/documents/msgp2015_finalpermit.pdf (Endangered and Threatened Species and Critical Habitat Protection. Coverage under this permit is available only if your stormwater discharges, allowable non-stormwater discharges, and stormwater discharge-related activities were the subject of an Endangered Species Act (ESA) consultation or an ESA section 10 permit, or if your stormwater discharges, allowable non-stormwater discharges, and stormwater discharge-related activities are not likely to adversely affect any species that are federally listed as endangered or threatened (“listed”) and are not likely to adversely affect habitat that is designated as “critical habitat” under the ESA. You must meet one of the criteria below, following the procedures in Appendix E).; For appendix E see: U.S. Environmental Protection Agency, Appendix E- Procedures Relating to Endangered Species Protection, (2015), available at http://www2.epa.gov/sites/production/files/2015-10/documents/msgp2015_appendixe-2.pdf.

[lxxxii] U.S. Environmental Protection Agency, 2015 Multi- Sector General Permit for Stormwater Discharges Associated with Industrial Activity (MSGP)- Fact Sheet, 5 (2015), available at http://www2.epa.gov/sites/production/files/2015-10/documents/msgp2015_fs.pdf.

[lxxxiii] U.S. Environmental Protection Agency, National Pollutant Discharge Elimination System (NPDES) Multi- Sector general Permit for Stormwater Discharges Associated with Industrial Activity (MSGP), 15-16 (2015), available at http://www2.epa.gov/sites/production/files/2015-10/documents/msgp2015_parts1-7.pdf.

[lxxxiv] Id (Section 2.1.2.2).

[lxxxv] Id (Section 2.1.2).

[lxxxvi] Moore, supra at 137.

[lxxxvii] J. M. Organ, Limitations on State Agency Authority to Adopt Environmental Standards More Stringent than Federal Standards: Policy Considerations and Interpretive Problems, 54 Md. L. Rev. 1373, 1374 (1995),

available at http://digitalcommons.law.umaryland.edu/mlr/vol54/iss4/9 (Federal Water Pollution Control Act 33 U.S.C. § 1370 (1972) (Authorizes States to adopt or enforce standards or limitations that are more, but not less, stringent than any effluent limitation, effluent standard, prohibition, pretreatment standard, or standard of performance in effect under the Clean Water Act).

[lxxxviii] § 13367 (a) (Preproduction plastic includes plastic resin pellets and powdered coloring for plastics).

[lxxxix] § 13367 (c).

[xc] § 13367.

[xci] § 13367 (d)(1).

[xcii] Id.; Earth Day Revisited, supra.

[xciii] Cormac Cullinan, Wild Law: A Manifesto for Earth Justice 44 (2 ed. 2011).

[xciv] Cormac Cullinan, Wild Law: A Manifesto for Earth Justice 44 (2 ed. 2011).

[xcv] Id. at 103.

[xcvi] Id. at 101.

[xcvii] Id. at 102.

[xcviii] Christopher D. Stone, Should Trees Have Standing?- Toward Legal Rights For Natural Objects, 450 Southern California Law Review 45, 455 1972).

[xcix] Cynthia Giagnocavo & Howard Goldstein, Law Reform or World Re-form: The Problem of Environmental Rights, 345 McGill Law Journal 35, 345 (1989-1990).

[c] Endangered Species Act, 16 U.S.C § 1531 (1973).

[ci] Sierra Club V. Morton, 405 U.S. 727 (1972) (dissenting opinion).

[cii] Stone, supra at 453.

[ciii] For examples see Stone, supra at 453- 454.

[civ] Stone, supra at 456.

[cv] Koons, supra at 357.

[cvi] 33 U.S.C. § 1251(a)(2).

[cvii] Paul Emond, Co-operation in Nature: A New Foundation for Environmental Law, 342 Osgoode Hall Law Journal 22, No.2, 347 (1984).

[cviii] § 1313.

[cix] § 1313(c)(2)(A).

[cx] § 1311(b, e); § 1314(b); § 1311(b)(2)(A).

[cxi] Jambeck, supra at 770.

[cxii] UNEP & NOAA, The Honolulu Strategy: A Global Framework for Prevention and Management of Marine Debris, 5 (2011), available at http://www.unep.org/esm/Portals/50159/Honolulu%20Strategy%20Final.pdf.   

[cxiii] U.S. Environmental Protection Agency, National Summary of State Information (Dec. 1, 2015, 3:34 PM), http://iaspub.epa.gov/tmdl_waters10/attains_nation_cy.control

 [HG1]Majorie? Marjorie?

 [HG2]Highlight with a pull out quote

Rights for the River Ethiope, Nigeria

By Timothy W. Collins

I.  Introduction

Earth Law Center recently partnered with the River Ethiope Trust Foundation (“RETFON”) to secure rights recognition for the River Ethiope in Nigeria, to assist with RETFON’s current efforts and to work towards establishing the River as a legal entity possessing rights. As a result, the River would have a broad suite of recognized legal rights that would set it on a path to permanent restoration. It would also have standing to utilize the court system as a plaintiff in search of injunctive relief or damages, as necessary.[1] The River Ethiope would be the first waterway in Africa to possess legal rights.  

II.  The River Ethiope

The River Ethiope is located in the Delta State of Nigeria (“DSN”). The DSN is a geographic component of the South-South geo-political zone, and yields oil and agriculture. The River runs from the Umuaja community in the Ukwuani Local Government Area (“LGA”) and meets the sea at the Sapele LGA. The River flows for approximately 70km through four LGAs: Ukwuani, Ethiope East, Okpe and Sapele. These LGAs combine for an estimated population of 1.7 million people as of 2013.[2]

The River is a place of worship for adherents to the traditional Olokun and Igbe religions. It famously originates at the base of a giant cottonwood tree.[3] The area surrounding the source is a specific concern; human visitation over time has destroyed precious root systems that filter groundwater and prevent erosion. A concentration of vehicular traffic creates high levels of airborne pollutants as well. In the now familiar environmental irony human interest and appreciation endangers the object(s) humanity seeks to see and appreciate.

Nigeria is the third most biologically diverse country in Africa with regards to flora and fauna, a ranking that is currently endangered due to largely unregulated deforestation, farming, spreading urban communities and industrialization.[4]

III. The River Ethiope Trust Foundation

RETFON’s mission is to protect the River Ethiope and to defend the rights of the communities that depend on it. RETFON opposes development projects that degrade water quality, and encourages sustainable innovation to meet needs for water, energy, and protection from destructive floods and coastal erosions. To achieve this mission, RETFON collaborates with local, regional, national and international network of grassroots movements, communities, individuals, social clubs, Non-Governmental Organizations and corporate partners. Through research, education, advocacy and legal action RETFON works to halt destructive activities, to address the legacies of sustainable activities, to improve development policies and practices of government and to promote water and energy solutions for a just and amicable society. RETFON’s activities are planned to serve as a model for all rivers in Nigeria.[5]

IV. Threats to the River

Nigeria has one of the worst river degradation conditions of any country in the world. To date, dedicated deliberate efforts to reverse this growing problem have proven inadequate, for reasons addressed below.  Climate change, uninhibited industrial/urban development combine to measurably worsen the condition as time passes.[6]

Historically, the River Ethiope has been used extensively for occupational and recreational activities: fishing, swimming, clothes washing and bathing. These activities have no measurable environmental impact on their own merits. The River has been used as a source of disposal for industrial waste and consumer products, as well, and is subject to further contamination during the rainy season when it typically overflows its banks.[7] When the floodwaters recede they carry runoff in the form of additional domestic waste and agricultural by-products like chemical fertilizers and pesticides. As noted, tourism and religious activities pose additional threats due to the significant amount of visitors in sensitive areas.

River Ethiope currently fails to meet the water quality standard set by the World Health Organization (“WHO”), a failing that is shared by every river in Nigeria.[8] This failure to meet WHO standards renders the waters of the River at best useless and at worst dangerous for human interaction. The pollution and continued degradation also pose a threat to entire inland ecosystems and ultimately to coastal regions of the Atlantic Ocean.

V.  RETFON’S Approach

RETFON has displayed uncommon patience and determination over the past twenty-six years. President and Founder Irekefe V. Dafe identifies partnership building, resource mobilization, flexibility and leadership as key components of the learning process. Mr. Dafe describes RETFON’s approach as focusing on (1) partnership and collaboration, (2) community mobilization, (3) holistic emphasis, (4) planning, evaluation and monitoring, and (5) long-term sustainability, all practiced under the principles of Eco-hydrology and Integrated Water Resource Management (“IWRM”). RETFON plans to proceed towards its goals of full implementation of IWRM principles, developing and maintaining proper legal and institutional frameworks and the establishment of either an Inter-Local Government Commission for the preservation of the River or a River Ethiope Watershed Development Authority by the four above-referenced LGAs. To achieve these goals RETFON must overcome funding challenges to remedy a lack of scientific data, poverty and ignorance, the lack of an institutional framework, and inadequate government policies and programs, and the failure to enforce existing laws and regulations.  

VI.  Timeline: A Condensed History of RETFON’s Activities to Date

Since 1992, RETFON has worked to protect the River Ethiope by building relationships with both local civilians and businesses (“stakeholders”) and DSN and Federal governments, reaching out in both directions simultaneously. Governmental recognition and assistance legitimizes the Trust in the eyes the stakeholders; stakeholder perception creates reciprocal awareness by the governments. This symbiosis extrapolates to a model of an as yet aspirational relationship between the community and the River, i.e., two concerned parties acting in concert for mutual benefit.            

RETFON recent activities to protect the River Ethiope include the following:

• In February of 1999, RETFON organized the first official joint inspection of the River by DSN and Federal Government of Nigeria (“FGN”) officials. The result was the immediate closure of several industrial facilities whose practices were identified as harmful to the River. In one instance the inspection discovered a rubber processing plant directly discharging untreated rubber waste into the River, not far upstream from communities who routinely use the River for bathing and as a source of drinking water. These closures significantly disrupted what had been a steady source of pollution and acted as a deterrent for future violators who chose to operate without an approved Environmental Impact Assessment (“EIA”).
• Building on this momentum, RETFON petitioned the Federal Government through FEPA to intervene in the development of a tourism facility by the hospitality company Hotel and Catering Services Ltd. in April of 1999. The company was engaged in a development effort on the banks of the River without the required EIA, seemingly oblivious to the idea that their actions were harming the source of their potential commercial success. FEPA issued a directive to halt further development until the EIA had been made and approved. When village leaders questioned why RETFON would oppose local development, RETFON highlighted its commitment to preserving and restoring the environment, which benefits both ecosystems and local communities that rely upon healthy waterways.
• RETFON organized a second joint inspection inspection of the River in February 2001. The inspection team was made up of DSN government executives and members of the DSN House of Assembly, led by a member of the DSN Commission for Special Duties the group focused on gully erosion near the heavily trafficked source of the River. The inspection efforts yielded the immediate award of a contract for the control of gully erosion in the Ebede community, approximately five kilometers from the River source. Controlling gully erosion is crucial to reducing the amount of contaminated storm water runoff. This type of husbandry further demonstrates RETFON’s approach of simultaneously solving a pressing issue while building public interest and support—in this case stakeholders were inspired by the idea of two arms of their state government working together to perform actions popularly viewed as restrictive towards industry and commerce.
• In June 2012 RETFON was awarded a United Nations Development Plan-Global Environment Facility grant (UNDP-GEF).[9] The UNDP-GEF grant supported a project to restore and conserve the source of the River. The tangible efforts were afforestation and the development of a plant nursery. Less visible but equally important results were leading by example, the fostering of environmental awareness, policy reform advocacy, emphasis on environmental monitoring and evaluation, and the opportunity for the DSN government and stakeholders to work together towards a mutually beneficial cause.

RETFON has continued to work with local stakeholders and government to defend the health of the River Ethiope and surrounding communities. RETFON offers workshops and educational opportunities, including outreach to University students. Student involvement is understated in its importance; RETFON offers students what is often their first application of theory to practice. Furthermore, the introduction of students to environmental awareness helps to create a generation that considers such awareness normal as opposed to radical.

VII.  The Rights of Nature Approach

Earth Law Center (ELC) is proud to support RETFON on a new campaign to seek legal rights for the River Ethiope. To date, RETFON and other leaders have made remarkable progress in protecting the River Ethiope by working with local stakeholders, enforcing current environmental laws and calling for policy change where necessary. However, RETFON recognizes that the only permanent method to restore this river to health is to give it legal rights that are equivalent to those enjoyed by humans and other entities. And considering the immense ecological, religious and cultural significance of the river, it is a prime candidate to be the first river in Africa to have its inherent rights recognized.

Although achieving a substantial paradigm shift like legal rights of rivers is always difficult, RETFON enjoys support from community leaders, governmental departments, and national and international actors. In particular, the younger generation is deeply inspired to protect the environment in Nigeria. Therefore we are confident that the campaign will be a success.

What are the rights to which the River Ethiope might be entitled? Earth Law Center (“ELC”) enumerated the basic rights to which all rivers are entitled in the Universal Declaration of the Rights of Rivers. At baseline, they consist of (1) the right to flow, (2) the rights to perform essential functions within its ecosystem, (3) the right to be free from pollution, (4) the right to be fed from sustainable aquifers, (5) the rights to biodiversity and (6) the right to restoration.[10]

These rights are intentionally drafted broadly to give stakeholders and government the opportunity to adapt them to local needs. Under RETFON’s leadership, and considering the wisdom and input of local communities, ELC’s legal experts will provide counsel on how to define and implement the rights of the River Ethiope. And in the meanwhile, RETFON’s bilateral efforts will continue to build precedent until a valid argument can be made that the River Ethiope is exercising its legal rights in every capacity, and all that remains is formal recognition.

VIII.  Next Steps

ELC has partnered with RETFON in our shared goal of establishing rights of nature, including rights of waterways. The next step is for ELC to develop a full awareness and understanding of DSN and FNG structures and procedures to plan and communicate intelligently. We will then begin discussions with RETFON on how to best provide legal rights for the River Ethiope, drawing from ELC’s international experience and RETFON’s decades of local success. RETFON will then work with local communities to ensure that rights for the River maximize human and environmental well-being. We are extremely excited for the months to come.

IX.  How to Help

To assist our efforts either with this specific partnership or in general please look at the following options:

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

X.  Conclusion

RETFON’s efforts have gone a long way at the “ground level” by securing and performing manual project designed for immediate impact. They can be viewed as individual bricks in a foundation upon which to construct RETFON’s long-term goals of legitimacy and awareness, both by stakeholders and the State and Federal governments. And while these victories are necessary and inspiring, they can only be made permanent by establishing legal rights for rivers.

Ideally this one instance will be the first domino to fall in the extended effort to address and reverse the degradation of all Nigerian rivers. While at present difficult to fathom, it is important to remember that sweeping changes of this kind are preceded by the suffragette and Civil Rights movements in the United States, and were met by a range of oppositional tactic while the voting public struggled with the introduction of groundbreaking departures from tradition.[11] By establishing legal rights for the River Ethiope, we hope to create a replicable model for all – to usher in a new era of living in harmony with the waterways upon which we rely.

XI. Afterword

My thanks go to Mr. Irekefe V. Dafe, President and Founder of the River Ethiope Trust Foundation for his valuable assistance in providing background material and educating ELC on RETFON’s impressive efforts and history. It is safe to assume that any missing citations are the problem children of unpublished documents sent to ELC by Mr. Dafe, and equally safe to assume that, as such, the facts are trustworthy. Although I have done my best to paraphrase rather than simply copying and pasting there is a fine line between the two results, made finer by my fear of distorting the meaning and emphasis. Please forgive me if such a misrepresentation has occurred, and I look forward to assisting in the development of this partnership.

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[1] Author’s note: as yet unexplored and without precedent, that same standard exposes the river to liability as a defendant; it is difficult to imagine a set of circumstances giving rise to litigation of this kind, and the issue is academic at the moment and of course dependent on future events.

[2] https://www.internationalrivers.org/resources/irikkefe-v-dafe-river-ethiope-7850

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

[4] F.O. Arimoro, E.A. Kaine, B.O. Krumale, & S. Obiegba, "Ecological Observations, Preliminary Checklist and Conservation of Mammals Occurring Within the Eastern Boundaries of Ethiope River, Niger Delta Area of Nigeria," J Biodivers Biopros Dev 1: 104 (2014) at: https://www.omicsonline.org/open-access/ecological-observations-preliminary-checklist-and-conservation-of-mammals-occurring-within-the-eastern-boundaries-of-ethiope-river-niger-2376- 0214.1000104.php?aid=26278

[5] https://www.facebook.com/retfon/

[6] Dafe V. Irikefe and Irwin A. Akpoborie, "Implementing IWRM in the Ethiope River Watershed: The Role of Advocacy," Kaduna NIGERIA Workshop Paperat: http://mucp-mfit.org/wp-content/uploads/Dafe-and-Akpoborie-_-IWRM-at-ERC-Compatibility-Mode.pdf

[7] S.A. Osakwe and B.O. Peretiemo-Clarke, "Evaluation of Heavy Metals in Sediments of River Ethiope, Delta State, Nigeria," 31st CSN Conference paper 611-613 (2008) at: https://pdfs.semanticscholar.org/a2b1/5047a38c416e5b5b798ddb1b55d2e8a7c81c.pdf

[8] http://www.environewsnigeria.com/wrd-nigeria- rivers-fall- standards/

[9] http://www.undp.org/content/undp/en/home/funding/funding-channels.html

[10] https://www.earthlawcenter.org/river-rights/

[11] Pecharroman, Lidia Cano, Rights of Nature: Rivers That Can Stand in Court.  AC4, Columbia University 2018, 2; citing Stone, C.D. Should Trees Have Standing?⎯Towards Legal Rights for Natural Objects.  South. Calif. Law Rev. 1972, 45, 450-501.

Co-Violations: Where Both Human and Ocean Rights Violations Occur

By Michelle Bender

What are co-violations?

Human rights violations often accompany violations of nature. Earth Law Center’s 2016 updated report analyzed 200 case studies of these “co-violations.”

The information we collected showed that co-violations of nature’s rights and human rights are expanding everywhere, with the global south proportionately more affected. Thirty percent of the cases examined involved harm to indigenous peoples’ rights, despite indigenous people comprising only five percent of the population.[1]

Since then, a wave of new, increasingly violent cases of rights co-violations has swept across the globe. Many involve arrests and murders intended to silence frontline environmental defenders. These acts are rarely punished. Human victims are branded as enemies of “progress,” and environmental victims are viewed as commodities rather than as living beings.

Human trafficking, corruption, exploitation, and other illegal violations, combined with a lack of policing and proper enforcement of international laws, also represents the deplorable reality of much ocean activity.

The ever-growing presence of human rights violations at sea and the direct and indirect mistreatment of the ocean go hand in hand. Whether in the form of illegal fishing or the forced evacuation of low lying atoll nations affected by climate change, the seas and oceans overflow with crime.[2]

At Earth Law Center we know that legal rights for marine protected areas will help protect both nature and humans from co-violations of their rights at sea. A legal framework is urgently needed because marine communities face problems of such severity.

Disappearing fish means vanishing livelihoods and disrupted ecosystems

A legal framework for marine protected areas will help to protect fisheries from further damage. Fisheries contribute over $100 billion to the global economy[3] with an estimated $375 million coming from coral reefs.[4]

However, the Food and Agriculture Organization (FAO) has named over 70 percent of the world’s fish species as either fully exploited or depleted[5], and therefore unlikely to rebound to healthy populations.

Marine scientists found that 10 percent of large predatory fish, such as tuna, swordfish and marlin remain,[6] and 30 percent of shark species are threatened with extinction due to ‘finning’ for shark fin soup.[7] The decline is not only due to direct fishing pressures, but to human activities and exploitative pressures. The already decimated Atlantic Bluefin Tuna population is further struggling to rebuild due to the impacts of the 2010 BP oil spill.[8]

Dolphins and whales are also declining due to fishing bycatch, direct hunting, and bioaccumulation of toxic pollution such as the ubiquitous microplastics. Many whale species face imminent extinction. These include the North Atlantic right whale, with only about 300 individuals left, and the Western Pacific gray whale, estimated to have fewer than 100 individuals left.[9]

Similarly, about 27 percent of coral reefs (including half the Great Barrier Reef) have already been lost to ocean acidification and other climate factors such as warmer sea temperatures and sea level rise.[10]

Humans are at “high risk of causing . . . the next globally significant extinction event in the ocean” — and soon.[11] A legal framework for marine protected areas is needed now.

Slave labor and the seafood industry

A new scientific paper by Conservation International, the University of Washington and other partners calls on governments, businesses and the scientific community to take measurable steps to ensure seafood is sourced without harm to the environment or to people that work in the seafood industry.[12]

The paper, presented at the United Nations first Oceans Conference in New York in 2017 offers the first integrated approach to taking account of social issues and human rights violations in the seafood industry. The work responds to investigative reports by the Associated Press, the Guardian, The New York Times and other media outlets that uncovered human rights violations on fishing vessels.

The investigations tracked the widespread use of slave labor in Southeast Asia to produce seafood products, and chronicled the plight of fishermen tricked and trapped into working 22-hour days, often without pay, while enduring abuse. Subsequent investigations have documented the global extent of these abuses. [13]

Earth Law for marine protected areas will mean improved supervision of the seafood industry, making it more difficult for slave labor operators to evade detection.

Earth Law as an innovative supporter of human rights and nature’s rights at sea

Earth Law aims to shift our economic worldview toward one that respects rather than ignores the rights of nature and humans.

Recommendations made by Earth Law Center include, among others:

• Recognize in law and implement the fundamental rights of nature, including through U.N. General Assembly adoption of the Universal Declaration of the Rights of Mother Earth
• Prioritize cases before the International Criminal Court that involve co-violations of human rights and nature’s rights
• Formulate an international treaty to prevent and address human rights and nature’s rights violations by transnational and national business enterprises
• Provide emergency protection to environmental defenders at risk
• Adopt a system for receiving information and reporting on violations of the rights of nature and of environmental human rights defenders

Recent efforts in addressing co-violations of human rights and nature’s rights at sea

Local, national and international efforts and partnerships are working to address the growing number of co-violations of ocean and human rights. An Earth Law framework for marine protected areas will build on this momentum.

At the local level, communities are standing up for their right to a healthy environment and to defend the ocean. Communities and states are doing their part to address the flow of plastics into the ocean, with actions such as banning plastic bags, polystyrene and micro-beads.

California passed a law in 2013, and Washington in 2011, prohibiting the possession and sale of shark fins within the state.[14] And most recently, communities across the United States have passed resolutions banning oil drilling off their shores, including 33 communities on the Pacific Coast.[15]

At the national level, countries are increasing ocean conservation efforts, through laws designed to manage fisheries, address land-based pollution and protect large areas of jurisdictional waters through marine protected areas.

Iceland, recipient in 2010 of an award for responsible fishery practices, regulates the amount of fish that each fisherman can catch. Scientists re-evaluate these quotas after testing the biomass twice a year, and shut down fisheries if stocks fall.[16]

Countries are using marine protected areas as a tool to address the decline in marine biodiversity and loss of livelihoods. In late 2017, Mexico announced the expansion of Revillagigedo Archipelago National Park, the largest marine protected area in North America, protecting an area of ocean nearly four times the size of Switzerland.[17] Given the strictest level of protection in the country, the status prohibits fishing activities, mining, and oil extraction, and strictly regulates marine tourism activities.[18] 

At the international level, the United Nations attempted to prevent such violations through the Convention on the Law of The Sea (UNCLOS 1982), also known as the Law of the Sea Treaty (LOST). UNCLOS is the primary international agreement that regulates the rights and responsibilities of nations regarding their use and treatment of the world’s oceans.  The treaty that resulted from the convention attempts to create guidelines for all aspects of international waters, including business, diplomacy, mineral rights, pollution control, and fishing rights. However, this treaty, not ratified by the United States, is not in its essence an environmental treaty, but rather a constitution for how all activities should be carried out on the High Seas.

In 2015, the United Nations General Assembly unanimously agreed to launch a series of negotiations to develop an international treaty to protect marine biodiversity on the High Seas (areas beyond national jurisdiction- beyond 200 nautical miles from land). The fourth and final Preparatory meeting was held in 2017, with formal negotiations to begin in fall 2018.[19]

The draft primary objective of the new treaty is to “ensure the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction.” The treaty is expected to provide guidelines for cooperation to create regulations to protect marine biodiversity, including designating and implementing marine protected areas on the high seas.

A new approach for human and ocean rights management is needed

Despite the great steps taken to address the co-violations of human and ocean rights, ocean health continues to decline. To correct the destruction being caused, we must challenge the overarching legal and economic systems that reward environmental harm, and advance governance systems that maximize social and ecological well-being.

Earth Law Center proposes evolving the legal framework guiding our activities to include legal rights for the ocean. We have drafted the Earth Law Framework for Marine Protected Areas to serve as a tool for adopting a holistic and rights-based approach to ocean governance. The framework is currently being finalized with a working group under the International Union for the Conservation of Nature.

Experts, governments and organizations worldwide agree that such a shift to holism and alternative forms of management is needed.

For example:

• In 1982, the United Nations adopted the World Charter for Nature (111 votes for, 1 vote against, 18 abstentions).[20] The Charter adopts principles of conservation guiding human conduct to be reflected in the laws of each State.[21] It acknowledges that “mankind is a part of nature” and that “living in harmony with nature gives man the best opportunities” for living well. Noting that “every life form … warrant[s] respect regardless of its worth to man,” the charter declares, “Nature shall be respected and its essential processes shall not be impaired.” The Charter calls upon a moral code of conduct to guide human action in a way that treats other organisms with respect. Additionally, a primary function of the agreement is to recognize that man’s needs can only be met “by ensuring the proper functioning of natural systems.”

• The National Oceanic and Atmospheric Association (NOAA) calls upon the recognition of ecological interconnectedness and complexity as crucial to managing marine ecosystems.[22] Also found to be crucial to sustainable management, the need for holism is highlighted throughout NOAA’s work. In multiple reports, NOAA noted that a holistic approach is distinct from current approaches,[23] and to achieve the needed holism, we must reject and replace “many (but not all) of the processes upon which conventional management depends.”[24]

• In providing technical guidelines for responsible fisheries, the international Food and Agriculture Organization recognizes the need to improve current fisheries management,[25] highlighting the use of marine protected areas and a holistic approach to do so.[26] However, FAO notes that marine protected areas must merge two converging paradigms —ecosystem management and fisheries management.[27] Sustainable development can be achieved if the two “converge towards a more holistic approach that balances both human well-being and ecological well-being.”[28]

Accordingly, the Earth Law Framework for Marine Protected Areas, serves as not only as a guideline for adopting holistic and rights-based governance towards protected areas, but also ocean law and policy in general. At its foundation is the recognition and respect for the rights and values of the ocean. By acknowledging certain rights the ocean is entitled to, human decisions are then required to balance human rights and needs with those of the ocean, addressing co-violations of human and ocean rights.

After months of research and writing in 2017, the framework underwent an open call for inputs to gain recommendations from experts internationally. The final version of the framework is due to launch this Earth Day, April 22nd. ELC will also be creating a working group within the International Union for the Conservation of Nature, the largest conservation organization in the world, to receive final revisions necessary for IUCN endorsement and dissemination.

What you can do to help

At this critical juncture in our planet’s future, we have the opportunity to change the way we treat the ocean.

• We can ensure national ocean policies recognize the ocean’s rights to life, well-being, biodiversity and restoration. Read the framework here.
• We can pass local ordinances establishing the rights of coastal communities to a healthy environment and to defend nature. Launch an initiative here.
• We can ensure fishery management is done on a systems and precautionary basis. Volunteer with ELC here.
• And we can encourage our representatives to promote rights of nature in the UN International Treaty for Biodiversity on the High Seas. Donate here.

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[1] https://static1.squarespace.com/static/55914fd1e4b01fb0b851a814/t/586d58b8725e2585df6a935a/1483561276729/ELC+Co-Violations+Report+-+2016+Update+%28Print%29.pdf

[2] https://www.oceanfdn.org/resources/human-rights-and-ocean

[3]    http://www.un.org/events/tenstories/06/story.asp?storyID=800 

[4]    Sea Technology

[5]    http://www.un.org/events/tenstories/06/story.asp?storyID=800

[6] Ransom A. Myers & Boris Worm, “Rapid Worldwide Depletion of Predatory Fish Communities,” 423 Nature 280-283 (May 15, 2003), at: www.nature.com/nature/journal/v423/n6937/abs/nature01610.html.

[7] http://content.time.com/time/magazine/article/0,9171,2021071,00.html 

[8] https://scpnt.stanford.edu/bp-oil-spill-bluefin-tuna

[9] Russell McLendon, “10 of the Most Endangered Whales on Earth,” Mother Nature Network (June 23, 2010), at: www.mnn.com/earth-matters/animals/stories/10-of-the-most-endangered-whales-on-earth.

[10] World Wildlife Fund, “Fast Facts: Why Coral Reefs are Important to People,” at: www.wwf.panda.org/about_ our_earth/blue_planet/coasts/coral_reefs/coral_facts.

[11] A.D. Rogers, & D.d’A Laffoley, International Earth System Expert Workshop on Ocean Stresses and Impacts, Summary Report, p. 7 (IPSO Oxford 2011), at: http://www.stateoftheocean.org/wp-content/uploads/2015/10/2011-Summary-report_workshop-on-stresses-and-impacts.pdf. See also International Programme on the State of the Ocean, Combined Research Papers, at: http://www.stateoftheocean.org/ wp-content/uploads/2015/10/2011-Summary-report_workshop-on-stresses-and-impacts.pdf.

[12] https://www.seafoodsource.com/news/environment-sustainability/social-and-human-rights-abuses-on-agenda-at-seaweb-un-oceans-conference

[13] https://www.seafoodsource.com/news/environment-sustainability/social-and-human-rights-abuses-on-agenda-at-seaweb-un-oceans-conference

[14] http://www.laweekly.com/news/shark-fin-soup-could-be-banned-in-the-us-through-proposed-legislation-8248185

[15] http://www.biologicaldiversity.org/campaigns/stopping_trumps_assault_on_ca_coast/#list

[16] http://oceaneos.org/sustainable-fishery/countries-where-the-fisheries-are-sustainable/

[17] https://www.virgin.com/richard-branson/mexico-creates-largest-marine-protected-area-north-america

[18] https://mpanews.openchannels.org/news/mpa-news/mexico-creates-north-americas-largest-fully-protected-mpa

[19] http://www.pewtrusts.org/~/media/assets/2017/03/road-to-high-seas-conservation.pdf

[20] Tim Boucher, Plants & Privacy, Medium, Feb. 4, 2016, available at: https://medium.com/@timboucher/world-charter-for-nature-1982-93cc3d41ff79.

[21] World Charter for Nature, U.N. Doc. A/37/51 (1982), available at: http://www.un.org/documents/ga/res/37/a37r007.htm (World Charter). 

[22] Id. at 2.

[23] Charles W. Fowler, Andrea Belgrano, and Michele Casini, Holistic Fisheries Management: Combining Macroecology, Ecology, and Evolutionary Biology, Marine Fisheries Review (Scientific Publications Office, National Marine Fisheries Service, NOAA), 75 (1–2), 2013, p. 1, available at: http://aquaticcommons.org/14550/1/mfr751-21.pdf.

[24] Fowler, C. W., R. D. Redekopp, V. Vissar, and J. Oppenheimer, Pattern-based control rules for fisheries management. U.S. Dep. Commer., NOAA Tech. Memo. NMFS-AFSC-268, 2014, p. 2, available at:https://www.afsc.noaa.gov/publications/afsc-tm/noaa-tm-afsc-268.pdf. 

[25] Fisheries Management-2. The Ecosystem Approach to Fisheries, Food and Agriculture Organization of the United Nations, 2003, available at: http://www.fao.org/3/a-y4470e.html.

[26] Fisheries management. 4. Marine protected areas and fisheries. FAO Technical Guidelines for Responsible Fisheries. No. 4, Suppl. 4. Rome, FAO, 2011, available at: http://www.fao.org/docrep/015/i2090e/i2090e00.htm.

[27] Fisheries Management-2. The Ecosystem Approach to Fisheries, Food and Agriculture Organization of the United Nations, 2003, available at: http://www.fao.org/3/a-y4470e.html.

[28] Id.

The Amazon River Needs Rights Recognition Now

Photo credit: Yann Arthus Bertrand

By Raquel Hiebra

The River

The Amazon River, with an average flow rate of 215 million liters per second, wins the title of world’s largest river in terms of water volume.[1] In one single day, the Amazon discharges more water into the ocean than the Thames River does during the whole year.[2] This volume of water is equivalent to 20% of the world's river waters.[3] Moreover, at 6,868 km. (4,267.5773 mi.),[4] the Amazon competes with the Nile for the title of world’s biggest river in terms of surface area.[5]

The Amazon starts in Peru, at the Andes Mountains, and flows through Brazil before meeting the Atlantic Ocean. In Brazil, the river arrives as the Solimões and becomes the Amazon when it meets with the Negro River.[6] At this meeting, Solimões’ clear waters do not mix with the Negro’s dark waters, the result is a beautiful natural phenomenon.[7] Pororoca is another unique natural phenomenon which is best observed in September and March, during the biannual equinoxes. On higher ocean tides (new and full moons), water flows in from the Atlantic to the river, causing a reverse flow in which waters run upstream with great force, forming a tidal bore with an audible noise.[8]

The Amazon river basin covers an area of more than 7,000,000 square kilometers (2,702,715 square miles), and has more than 1,000 tributaries.[9] It is the largest basin in the world and runs through Peru, Colombia, Ecuador, Venezuela, Guyana, Bolivia and Brazil.[10]

Francisco de Orellana was the first European to travel from the source to the mouth of the Amazon, and he was the one that named the river as Amazon, because female warriors holding bows and arrows constantly attacked his expedition, reminding Orellana of the Amazon warriors from Greek myth.[11]

Archaeologists estimate that more than 3 million indigenous people lived in the Amazonian basin in the pre-Columbian period. These civilizations were highly developed due to selective cultivation, and use of fire to grow crops in a more fertile land.[12] Reports from the first Europeans to explore the basin, during the 16th and 17th centuries, mention the abundance of food, and the high population density of numerous "nations" that inhabited the region.[13]

However, rapid depopulation occurred during the colonization period due to war, slavery, and the spread of new viruses. Furthermore, the Catholic Church, responsible for converting indigenous peoples to Christianity, did not contribute to keeping their culture and values alive. Between 1750 and 1850, the indigenous Amazon population became the minority in the region.[14]

Regardless of all threats, the Amazon’s indigenous population managed to survive. In Brazil, there are around 180 Tribes with almost 208,000 people living in the Amazon region.[15] Currently, most of the Tribes do not rely entirely on their traditions to survive, however, growing of crops, hunting, and fishing are still crucial to them.[16]

There are also a lot of small communities that live across the Amazonian basin. In Amazonas, a Brazilian state crossed by the Amazon River, there are around 350 small communities that live on the river’s banks with approximately 37,000 people. Most of the communities were formed at the end of the 19th century due to rubber exploitation. Although the rubber cycle has declined, small groups remained in the region, forming small communities.[17]

The population of the riverbank communities faces the lack of crucial public services such as basic sanitation. Most of them do not have any medical support, and it may take two hours for a student to commute to the nearest school.[18] In practice, the Amazon supports the basic needs of such communities by providing water, fish, and transportation. Moreover, besides governmental support, any fish surplus is the main source of their low income[19].

Regarding its biodiversity, the Amazon’s basin encompasses a variety of landscapes and ecosystems, including the biggest rainforest on the planet, other rainforests, floodplain forests, and savannas[20]. It has the world’s greatest diversity of fish, with more than 3,000 species.[21] Moreover, its forest possesses a huge amount of stored carbon (90-140 billion metric tons of carbon), which has the potential to accelerate global warming if not stewarded properly.[22]

This description of the Amazon River’s characteristics helps to show the river’s importance, not only for the local people, but also for the planet’s entire ecosystem.

Threats to the Amazon River

Considering its great importance, it is natural to think that such a river should be protected and not jeopardized in any way, correct? However, unfortunately it is not a reality. The Amazon has to fight daily threats in order to follow its flow.

The Amazon rainforest is being cut down to free land for raising crops and cattle farming, affecting the river, which in some areas is presenting a higher level of pollutants such as phosphorus, carbon, and nitrogen. Studies from 2002 performed at Ji-Paraná River, an Amazonian basin river, revealed that in deforested areas elements such as carbon, phosphorus and nitrogen that would normally be absorbed by the forest and its soil are being carried into the rivers due to rains and the erosion of the rivers’ banks. The electric conductivity[23] found on tributaries of Ji-Paraná (Rolim de Moura, Urupá, and Jaru) showed a rate of 50 to 100 μS/cm, values that are 20 times higher than those found in preserved areas of the basin.[24]

Moreover, frequent forest burnings, aiming to open space to grow cattle and crops, decrease fauna diversity. After a burning, 78% of animals and plants are reduced[25]. Such burnings also affect the surrounding fauna of the Amazon river, changing the species that live in the river, its biodiversity, and the river’s own metabolism[26].

When the river crosses Macapá, a Brazilian city which concentrates most of the population of Amapá, it suffers with the discharge of untreated sewage. On average, each of Macapá’s citizens produces half a liter of sewage per day which goes directly into the Amazon river and its tributaries.[27]

The Amazon river is also impacted due to damming. There are 140 hydroelectric dams in operation or under construction along the river, and there are proposals for another 428 dams. Considering these projects, scientists argue that even if only a fraction of such dams are implemented, impacts on the river will be disastrous. The huge number of dams will retain most of the river’s sediments and nutrients, stifling life for species from the river. A broad study involving ecologists, engineers, economists, and geologists from universities around the world concluded that no river in the world, not even the huge Amazon, could survive 568 dams.[28]

In addition, activities such as commercial fishing, bio-piracy, poaching, logging, and mining[29] do not contribute to improving the odds of the Amazon river.

Selling Off Amazon’s Biodiversity

A bid promoted by the Brazilian government in 2013 sold the rights of oil exploration in the Amazon’s estuary, which was acquired by a consortium of companies, among them, the French Total, and the British BP (responsible for the largest marine oil spill in the history of petroleum, in the Gulf of Mexico in 2010). Currently, Total, BP, and another 3 companies have opened environmental processes within IBAMA (Brazilian Environmental Agency) seeking environmental licenses to start off their activities in the Amazon’s estuary.

Oil Spills in the Amazon’s Fragile Ecosystem

Another of the daily threats faced by the Amazon is the risk of oil spills in its estuary. A problem that if it occurs, besides the devastation of the river and the sea’s ecosystems, would also threaten one of the largest reef systems in the world.

The reef was revealed to the world in 2016. It presents a unique ecosystem with a rare and, so far, unknown diversity of species. Researchers estimate the reef covers an area of 50,000 km² (19305.11 mi²). Scientists have already recognized 40 species of corals, 60 species of sponges (29 previously unknown), and 73 species of fish.[30]

At least, among other elements, the new reef helped IBAMA to delay the issuance of their licenses until the completion of environmental studies. In August 2017, IBAMA required additional information related to Total’s license process, due to the discovery of the coral reef. In December 2017, IBAMA also did not issue the license to BP, and required additional information related to its process. Such requirements of additional information are a signal that the licenses will not be issued at the present moment, but it does not mean that a license will not be issued once Total and BP complete their process.[31] Moreover, the Brazilian government suspended any new bid processes to exploit oil in the area until 2019.[32]

Environmental groups are watching such processes closely. Greenpeace, which helped to release information about the reef, supports the campaign “Defend Amazon reef”, and fights to pressure oil companies to not exploit oil in Amazon’s estuary. There is an online petition urging Total and BP to cancel their plans to drill oil near Amazon’s reef.[33] 

Although oil exploitation in Amazon’s estuary has not yet begun, it is an activity that has been developed in the Peruvian Amazonian basin for more than 40 years, and its negative impact in the Western Amazon is a sad reality for the environment. More than 190 oil spills have been recorded in Peru since 1997, according to Peru's energy and mining agency. [34] In 2016 alone, 7 oil spills, representing an amount of almost 10,000 barrels, happened in the Peruvian Amazon. [35]

Scientists still do not know the real impacts of such spills in the long-term in the Peruvian Amazon. However, a study from January 2016, by Peru's National Institute of Health, pointed out that the levels of lead, cadmium and mercury in the blood of Amazonian children who live in affected areas were higher than those allowed in adults — and that it could affect their cognitive and motor development. [36] Another study from 2014, conducted by Rosell-Melé, an environmental chemist at the Autonomous University of Barcelona, showed tapirs and other species of mammals ingesting soils contaminated with oil compounds in the damaged areas of the Peruvian Amazon. [37] The point is, indigenous communities, which depend on the river for fresh water and fish, also hunt such animals. In the oil damaged region of Loreto alone, there are 500 indigenous territories, and five reserves for people in voluntary isolation. [38]

Oil exploitation is also a reality in the Amazonian basin of Ecuador. Chevron has exploited oil in this region for more than 30 years, and its activities caused widespread devastation of the ecosystem, and severely affected indigenous communities. To name a few examples, such exploitation resulted in 18 billion gallons of wastewater being dumped into rivers and streams; the construction of more than 900 open-air, unlined toxic waste pits that leach toxins into the soil and groundwater; release of contaminants through spills, spreading oil on roads, gas flaring, and burning of crude; and the creation of a pipeline and road system that has opened pristine rainforest to uncontrolled and widespread clearing, resulting in more than a million acres of deforestation. [39] At the height of its operations, Chevron was dumping an estimated 4 million gallons of oil per day. [40] 

Currently, more than 30,000 people are in a class action lawsuit in Ecuador fighting to hold Chevron accountable for the damage. The contamination of the waters directly impaired the lives of tens of thousands who relied on the waters for their daily activities. Scientific surveys pointed out that the rates of cancer are elevated in areas of oil contamination. Studies have also found high rates of childhood leukemia, and an atypical number of miscarriages. Moreover, children have been born with birth defects. [41]

What Rights of Rivers Would Look Like for the Amazon

Now, imagine how it would be if the Amazon River had rights, how it would be if it could stand up for its legal rights in a court of law. Rights that would include 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[42].

Personhood for rivers has already been recognized in New Zealand, India,[43] and Colombia, and nature’s inherent rights are recognized in the Amazonian basin bathed countries of Bolivia and Ecuador. Thus, why not apply the same rights to the biggest river on the planet? Why not give the Amazon the chance to stand for its rights and fight against unsustainable exploitation?

If the Amazon had full legal rights, then any unsustainable exploitation that would impair those rights could be challenged, with the river itself having standing in a court of law. When making such a claim, the river would be considered a legal entity, fighting for its own legal rights. In practice, humans would have to stand in a court of law to enforce such rights on behalf of the river, acting as legal guardians – a model that is already familiar to lawyers who represent children, disabled persons, and so forth. This model would in turn empower local communities, environmental groups, and others seeking to support the river’s rights.

Why not take the example of Vilcabamba River, a successful example of a river that enforced its rights, and let the Amazon fight for justice against whoever threatens its rights? As background, in the Vilcabamba River case, a construction project aiming to widen the Vilcabamba-Quinara road was depositing large quantities of rock and excavation material in the Vilcabamba River, increasing the river’s flow and the risk of flood disasters during the rainy  season.[44] The Ecuadorian Appeal Court granted a constitutional injunction in favor of the fundamental rights of the Vilcabamba River, ruling that the Provincial Government was responsible for causing significant damage to the Vilcabamba River, and ordering the restoration of the affected river corridor.[45] In other words, the government had to make the rights-bearing Vilcabamba River whole again.

Now, based only on the threats briefly mentioned above, imagine all of the reparations orders and rulings against future and imminent threats that could favor the Amazon River if it had rights. Rights for nature, including rights for our most precious and important rivers, seems to be the next logical step in our environmental governance, especially if we believe in a sustainable planet for future generations.

After all, economic benefits from the environment will not exist without an environment to support it!

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[1] https://super.abril.com.br/ideias/rio-amazonas-agua-agua/

[2] Id.

[3] Id.

[4] http://mundoeducacao.bol.uol.com.br/geografia/o-rio-amazonas.htm

[5] https://pt.wikipedia.org/wiki/Rio_Amazonas#Extens%C3%A3o

[6] Id.

[7] Id.

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

[9] https://pt.wikipedia.org/wiki/Rio_Amazonas

[10] http://ambientes.ambientebrasil.com.br/amazonia/bacia_do_rio_amazonas/bacia_do_rio_amazonas.html

[11] http://riosdelplaneta.com/rio-amazonas/

[12] Id.

[13] http://www.scielo.br/scielo.php?script=sci_arttext&pid=S0103-40142005000100015

[14] Id.

[15] Id.

[16] https://es.mongabay.com/2007/11/habitantes-del-amazonas/

[17] https://oglobo.globo.com/sociedade/nas-vilas-ribeirinhas-do-amazonas-37-mil-pessoas-carecem-de-medicos-saneamento-14635488

[18] Id.

[19] Id.

[20] http://wwf.panda.org/what_we_do/where_we_work/amazon/about_the_amazon/

[21] https://www.todamateria.com.br/bacia-amazonica/

[22] http://wwf.panda.org/what_we_do/where_we_work/amazon/about_the_amazon/

[23] a measurement used to determine water quality

[24] http://revistapesquisa.fapesp.br/2002/04/01/o-alerta-da-poluicao-nos-rios-da-amazonia/

[25] http://amazoniareal.com.br/queimadas-destroem-78-da-biodiversidade-da-amazonia/

[26] https://pib.socioambiental.org/pt/noticias?id=39091

[27] http://g1.globo.com/ap/amapa/noticia/2013/11/rio-amazonas-e-tao-poluido-quanto-o-rio-tiete-diz-ambientalista-no-amapa.html

[28] https://brasil.elpais.com/brasil/2017/06/14/economia/1497430161_506854.html

[29] https://www.rainforestcruises.com/jungle-blog/threats-facing-the-amazon-rainforest

[30] https://www.uol/noticias/especiais/corais-da-amazonia.htm#novos-leiloes-estao-previstos-para-2019

[31] http://epbr.com.br/foz-do-amazonas-bp-tambem-vai-complementar-estudos/

[32] https://www.uol/noticias/especiais/corais-da-amazonia.htm#tematico-1

[33] https://amazonreefs.org/

[34] http://www.dw.com/en/repeated-oil-spills-threaten-perus-amazon/a-35934538

[35] Id.

[36] http://www.dw.com/en/repeated-oil-spills-threaten-perus-amazon/a-35934538

[37] https://www.scientificamerican.com/article/oil-spills-stain-peruvian-amazon/

[38] Id.

[39] http://amazonwatch.org/work/chevron

[40] Id.

[41] Id.

[42] Universal Declaration of River Rights at https://www.earthlawcenter.org/river-rights/

[43] Unfortunately, the Supreme Court of India stayed the decision of the Uttarakhand High Court to recognize the rights of the Yamuna and Ganga Rivers, although efforts continue to permanently recognize the rights of these and other waterways in India.

[44] https://therightsofnature.org/first-ron-case-ecuador/

[45] http://www.gardenofparadise.net/Garden_of_Paradise/Rights_of_Nature_Lawsuit.html  and https://www.theguardian.com/global-development-professionals-network/2017/apr/21/rivers-legal-human-rights-ganges-whanganui

Rights of Nature: A Few Theoretical Considerations

Photo: Yann Arthus Bertrand, Utah Canyon

By Megan Barickman

It has only been 46 years since Christopher Stone published “Should Trees Have Standing? Toward Legal Rights for Natural Objects,” his seminal essay in which he first introduced the idea that society should “give legal rights to forests, oceans, rivers, and other so-called ‘natural objects’ in the environment – indeed, to the natural environment as a whole.”[1] The Rights of Nature movement, despite considerable gains over the course of these few years, is still relatively young, and its proponents are still actively involved in debates about how to best articulate its conceptual framework. In what follows, I will attempt to summarize four of the most pressing (and interesting) theoretical considerations that have emerged in contemporary writing about Rights of Nature.

What Do We Mean When We Say ‘Nature’?

As Kate Soper writes in her book What is Nature: Culture, Politics and the Non-Human, the term “nature” is a complex and ambiguous concept.[2] We use “nature” to indicate that which is untouched by human hands, as well as to describe manufactured products (all-natural dish soap). We use the term to talk about that which is inherent in us (human nature) and to describe the vast workings of ecosystems that lie outside of, or encompass, human activity. There is no doubt that nature, in all of these usages, is meant to signify the ‘other,’ the opposite of culture, human manipulation, and in fact, humanity itself.

As philosophers increasingly question the boundaries between nature and culture, the question of what exactly we mean when we say “nature,” and what we want to say instead, becomes more and more prescient. For Rights of Nature advocates, who wish to change the paradigm of our interaction with the non-human parts of the world, this is a question of particular importance. That is not to say, however, that this question requires an immediate answer. Rather, it requires our careful attention, especially as we attempt to answer the other questions surrounding Rights of Nature.

On What Grounds Do We Grant or Acknowledge Rights of Nature?

Directly connected to the question of how we define nature is the question of the theoretical and legal grounding on which Rights of Nature will be established. Most proponents of Rights of Nature will agree that rights ought to be accorded to nature (or recognized) on the basis of nature’s existence alone. As Judith Koons compellingly argues, the universe is revealed to us as self-organizing and self-manifesting, and this is enough to demonstrate its intrinsic worth.[3] While the issue is still a complex one, and there is plenty of room for minor theoretical disagreements, the general consensus shows just how closely this rationale is intertwined with the core tenant of Rights of Nature; nature ought to be protected, not for anything that we see in it, but simply because it is, on its own terms.

As Alessandro Pelizzon and Monica Gagliano point out in their paper “The Sentience of Plants: Animal Rights and Rights of Nature Intersecting?,” there is good reason to shy away from other rationales for rights, even though doing so has caused some environmental activists to be less accepting of the tenets of Rights of Nature than might be hoped.[4] Pelizzon and Gagliano address, in particular, Peter Singer’s contention that rights ought to be accorded to animals on the basis of sentience, which Singer defines as the capacity for pain and happiness.[5] In their article, Pelizzon and Gagliano outline several new studies regarding the cognitive capacity of plants in order to argue that sentience, like nature itself, is a culturally constructed and negotiable term, and therefore, is not the most effective basis for extending rights to non-human entities. Rather, the authors suggest, the principle of rights should be understood on the grounds of a constantly evolving knowledge of the other.

Pelizzon and Gagliano’s point is an important one for Rights of Nature in general. If Rights of Nature is to be taken seriously as the ideological rejection of paradigms that assign value to nature based on its relationship and meaning to us, then it must also be a shift to a new evaluation of nature that acknowledges our limited perspective.

What Part of Nature Receives the Rights?

We cannot, however, simply leave nature alone. Whether such an approach was ever possible is debatable – we are, after all, inhabitants of Earth and will always have to decide on the terms of our habitation – and we have now reached a stage of development where every ecosystem has been altered, in some way, by human influence. We will have to decide, despite our limited perspective, what parts of existence ought to be preserved as they are found today, what ought to be restored to the best of our knowledge and ability, and how we will develop and manage the integrated spaces where plants and animals exist in the midst of human habitation. Deciding what parts of nature should be given legal rights must be a large part of this decision-making process, if Rights of Nature is to be successful.

In their 1994 article on Nature’s Rights, Susan Emmenegger and Axel Tschentscher outline the four major paradigms that might be used to guide this discussion: holism, ecocentrism, biocentrism, and physiocentrism.[6] Holism and ecocentrism focus on ecosystems or systems of relationships as rights-bearing entities, while physiocentrism and biocentrism would grant rights to discrete entities rather than the relationships between them.

To be more specific, in holism, the world is seen as a single entity, an interconnected whole, which in and of itself is protected by rights. While ecocentrism also focuses on the relationships between living things and their environment, it is more nuanced and complex than holism. In ecocentrism, each relationship or set of relationships, such as an ecosystem, is seen as a potential rights bearer. In physiocentrism, every living and non-living thing is inherently valuable and is potentially a rights-bearing entity. Biocentrism, on the other hand, considers the interests of living things only.

There are difficulties inherent in each approach. Holism, for instance, is blind to the very real dilemma of competing interests. To provide an extreme example, very few people would want to argue that a deadly virus has as much a right to exist as do the people it infects, or that the “relationship” between a virus and its human host should be protected. Perhaps even more importantly, if rights are to be meaningful as a legal tool, they must foresee and allow for the discussion of competing interests. The Rights of Nature articles included in the constitutions of Ecuador and Bolivia, which are essentially holistic, are often criticized on these grounds as vague and internally inconsistent. Nathalie Ruhs and Aled Jones point out the way in which the articles treat all of nature and humanity as a legal conglomerate, leading to potentially unresolvable conflicts between the Rights of Nature, humans, and the rights of different locales.[7]

Ecocentrism, on the other hand, by treating the rights of different ecosystems and relationships separately, largely avoids this problem. However, both the holistic and the ecocentric paradigms, as Emmenegger and Tschentscher point out, could cause us to try and “pause” nature by focusing on maintaining a balance of relationships that, in reality, are constantly in a natural state of flux. It is worth noting that physiocentrism and biocentrism do not inherently obviate this problem either; it is possible to imagine that if all species were granted the inherent (and equal) right to exist, then extinction would need to be avoided at all costs, even when it is arguably the result of natural causes.

Emmenegger and Tschentscher, who favor biocentrism as the model for Rights of Nature because it is the closest to our current individualistic rights legal system, argue this problem can be circumvented by allowing for change, such as extinction, but only if the “rules of game are fair.” That is, if we know that extinction or radical changes occur very slowly in most cases where human influence is not operative, then we can assume that a species moving rapidly toward extinction or a radical change isn’t being given its fair evolutionary chance.

Not everyone agrees, however, that Rights of Nature should be set up as a “marketplace of interests” that mirrors our own current legal system[8]; there are many who object that excessively individualistic rights will fragment the integrated system that is nature. As Peter Burdon points out, there are now discourses on human rights that seek to shift rights from individuals to the relationships between them. Burdon argues that this new direction of rights discourse will be the most useful in developing a working Rights of Nature model.[9]

What Role Should Humans Play?

But what, and this brings us full circle, is humanity’s ideal relationship to ‘nature’? Proponents of Rights of Nature may readily agree that current environmental laws will always be ineffective because they are founded on an ideology that views nature as fundamentally separate from (and often owned by) humanity, but it is much harder, as should be obvious by now, to determine the proper relationship between humans and the rest of nature. Many new theories have emerged in recent years, often akin to indigenous world views, that challenge the nature/culture divide on which so much of our thinking about nature is based.[10] Rights of Nature demands that we take seriously how we think of nature, but we must also take seriously the fact that, fair or unfair, it is humanity that must make the decisions about how to move forward.

Anne Louise Schillmoller and Alessandro Pelizzon in their article “Mapping the Terrain of Earth Jurisprudence: Landscape, Thresholds and Horizons,” critique many of the new philosophical gestures that seek to shift values away from human exceptionalism. Schillmoller and Pelizzon say that these gestures ignore hierarchies of interest and differentials of power.[11] For example, how and by whom will non-human voices be represented? While theory may decenter humanity’s dominance, practice, in Christopher Stone’s words, will remain “unavoidably anthropocentric.”

In order to practice Rights for Nature carefully and responsibly we must be cognizant of asymmetrical power relations and establish the epistemic conditions of knowledge, i.e. what information is meaningful and who speaks with accuracy and authority. The good news is that Rights of Nature advocates are already asking the right questions to succeed on this front. We need only remain active and engaged in our debate of these considerations.

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[1] Stone, Christopher. “Should Trees Have Standing? Toward Legal Rights for Natural Objects.” Southern California Law Review, issue 45. (1972). pp 450-501.

[2] Soper, Kate. What is Nature? (Massachusetts: Blackwell Publishers, Ltd., 1995).

[3] Koons, Judith E. “What is Earth Jurisprudence?:Key Principles to Transform Law for the Health of the Planet” in Exploring Wild Law: The Philosophy of Earth Jurisprudence 45 (Peter Burdon ed. 2011).

[4] Pelizzon, Alessandro and Monica Gagliano. “The Sentience of Plants: Animal Rights and Rights of Nature Intersecting?” Australian Animal Protection Law Journal. Vol. 11, 2015: pp. 5-13.

[5] Singer, Peter. Animal Liberation: A New Ethics for Our Treatment of Animals. 2nd ed. (New York, NY: Random House, 1995).

[6] Emmenegger, Susan and Axel Tschentscher. “Taking Nature’s Rights Seriously: The Long Way to Biocentrism in Environmental Law.” Georgetown International Environmental Law Review. Vol. VI: Issue 3, Summer 1994: pp 576-579

[7] Ruhs, Nathalie and Aled Jones. “The Implementation of Earth Jurisprudence through Substantive Constitutional Rights of Nature.” Sustainability. 2016: p. 174.

[8] Ibid.

[9] Burdon, Peter. “The Rights of Nature: Reconsidered.” Australian Humanities Review, Issue 49. pp. 69-89.

[10] See: Kent, Jaimie. “Rights of Nature and the Political Implications of Post-Humanist Ecologies” (2017). Theses and Dissertations. 686. http://ir.library.illinoisstate.edu/etd/686.

[11] Schillmoller, Anne Louise and Pelizzon, Alessandro (2013) “Mapping the Terrain of Earth Jurisprudence: Landscape, Thresholds and Horizons,” Environmental and Earth Law Journal (EELJ): Vol. 3: Iss. 1, Article 1. Available at: https://lawpublications.barry.edu/ejejj/vol3/iss1/1

Earth Law Center’s 2017 Was One for the Books

By Michelle Bender and Grant Wilson

About the authors:

Grant Wilson worked for ELC from 2013-2015 until adventuring in Latin America. He since returned as ELC’s Directing Attorney, taking the lead on our rights for rivers and land-based ecosystem campaigns.

Michelle Bender started with ELC January 2016, assisting full time as an Earth Law Fellow and Policy and Advocacy, transitioning to Ocean Rights Manager in April this year.

The beginning of 2017 marked a time of transition for Earth Law Center. Though we were sad to see our founding Executive Director go, we could not have been more excited to welcome our new leader, Darlene Lee. She exhibited the team leadership and vision necessary for ELC to take our work to the next level, and establish ourselves as leaders of the Rights of Nature movement.

Recap on Oceans

Earth Law Center’s Ocean Rights Program promotes a new paradigm for ocean governance that focuses on the ocean’s own well-being. The program aims to not only establish protection for marine ecosystems, but to ensure these areas are fully protected and effectively managed. ELC’s objectives to ensure this outcome include:

1. Creating a holistic and ocean rights-based model framework for marine protected areas.
2. Establishing marine protected areas and sanctuaries, and securing legal rights for these areas.
3. Ensuring international treaty laws reflect the inherent rights of the ocean (such as through the Marine Biodiversity Treaty for the High Seas and Beyond, currently under negotiation).
4. Passing rights of nature laws in coastal communities.

Advancing the Rights of Oceans Worldwide

We gained significant headway in accomplishing our goals in 2017. We kicked off our international oceans work in June with the Rights of the Ocean Initiative at the United Nations Ocean Conference. This initiative not only put ELC on the radar as an ocean conservation organization, but gained ELC valuable partnerships, including in Uruguay, Brazil and South Africa. Building off this work, Michelle presented remotely on ‘Adopting Holistic and Ocean Rights-based Governance’ at the United Nations “6th Annual International Conference on Rights of Nature for Peace and Sustainable Development.”

At IMPAC4 Chile: Susana Claro, Fundacion Los Choros; Sylvia A. Earle, Mission Blue founder; Jennifer Sletten, Protected Seas; and Michelle Bender, ELC

Model framework for rights of marine protected areas

ELC completed a first draft of a model framework for marine protected areas after 500 hours of research and analysis. What originally started out as a 100-page document was trimmed succinctly to a 17-page main document plus appendices. The Framework was launched at the Fourth International Marine Protected Area Conference in Chile early September. It received enthusiastic support from respected ocean champions and organizations, including Mission Blue.

New Partners and Initiatives Worldwide

ELC launched oceans initiatives with new partners, too. For example, Organización para la Conservación de Cetaceos (OCC) and Earth Law Center (ELC) formed a partnership to establish legal rights for the Whale and Dolphin Sanctuary in Uruguay’s territorial waters. Though the Sanctuary was created in 2013, it still lacks a management plan. We started drafting the plan and will schedule stakeholder and government meetings in 2018 to gain consensus on aspects of the management plan.

Additionally, ELC was fortunate enough to work with groups in South Africa to call upon Parliament to amend the new Marine Spatial Planning Bill to include rights of nature and the precautionary approach. A comment letter has been passed to members of Parliament and we look forward to keeping you posted on the bill’s final language.

And finally, ELC was invited to collaborate with the French Research Institute for Development (IRD) on drafting a convention on the Rights of the Pacific Ocean. The objective is to create a treaty that all Pacific Island Nations sign and agree to implement. The treaty will focus on recognizing and respecting specific rights of the Pacific Ocean.

What’s next for oceans in 2018?

We do not want to stop with a successful Ocean Conference. We will kick off next year by getting the Rights of the Ocean Initiative in front of more organizations and stakeholders. Using our connections made in Geneva, ELC will begin outreach to UN Country representatives, in hopes of a UN resolution on the adoption of rights of the ocean into the Treaty for Biodiversity on the High Seas (which is due to begin negotiation in 2018). Additionally, meetings will begin between Pacific Island Nations, stakeholders and organizations to draft the convention on the Rights of the Pacific Ocean. The Treaty is expected to be signed by parties and binding in 2 years.

With regards to the Earth Law Framework for Marine Protected Areas, ELC will finalize the Framework using suggestions and comments gained from the expert ‘Call for Inputs.’ We anticipate officially releasing the final framework on Earth Day 2018 at the EarthX expo in Dallas, Texas, where ELC will be attending with partners Mission Blue.

ELC will also be taking rights of the ocean to Brazil, by inserting this paradigm in ongoing lawsuits through amicus curiae, and to the International Whaling Commission, with a declaration on the rights of cetaceans. You can read more on our key partners here and here. Additionally, ELC continues to draft model legislation for the Patagonian Shelf of Argentina and Uruguay, assisted in large part by Argentinean volunteer Andrea Galassi.

Finally, ELC will align with animal rights groups working to retire captive display cetaceans to seaside sanctuaries to adopt legal rights for these animals and their ecosystems.

Recap on Island Nations Initiative

ELC also kicked off a campaign to promote rights of nature within Island Nations. Establishing rights of nature in Island Nations permanently protects nature in the face of climate change while providing a platform for environmental and conservation partnerships. Prime Minister of the Cook Islands, Henry Puna, spoke on the rights of the ocean at the United Nations Ocean Conference this year. ELC’s Framework for Marine Protected Areas was received enthusiastically by the Office of the Prime Minister and forwarded to relevant agencies with ELC’s offer of assistance.

What’s next for island nations in 2018?

We await follow up with the Cook Islands Office of the Prime Minister and marine affairs agencies and will also be conducting outreach to other Island Nations, including Palau, French Polynesia and New Caledonia. We have also developed an extensive policy document on implementing rights of nature within island nations, thanks to our wonderful Research Fellow, Margarita Lavides. We plan to utilize that document to advise local advocates in numerous island nations on rights of nature law and policy.

Recap on Municipal Rights of Nature Work

ELC continued to push for the rights of nature at the municipal level. This work included ensuring full enforcement and implementation of the landmark Santa Monica Sustainability Rights Ordinance – the first-ever rights of nature ordinance on the West Coast of the United States. For example, ELC is currently working to implement the right of aquifers to sustainability through a proposed ban on new private wells. Additionally, ELC continues to work with San Francisco leaders to pass a law establishing a right to thriving biodiversity.

What’s next for municipal rights of nature work for 2018?

Earth Law Center will seek implementation the Sustainability Rights Ordinance in Santa Monica by working with partners to ensure full enforcement of nature’s rights. Additionally, ELC hopes that San Francisco can become a model of rights of nature activities from which other major cities worldwide can learn. Therefore, we will work to pass new laws and further engage the community on rights of nature, building from previous successes such as two Bay Area Rights of Nature Ethics Tribunals. 

Recap on Rights for Rivers

Universal Declaration of River Rights

Earth Law Center's presentation on the Rights of Rivers (click to view).

ELC worked to integrate existing global victories for river rights (including in New Zealand and Colombia), as well as ecological principles of river health, into a common set of rights that are universal for all rivers. Already, ELC’s Universal Declaration of Rights of Rivers was cited in an amicus brief in Patagonia, in support of the San Juan River’s right to flow. It also served as the basis for a rights of nature law in Mexico City (see below) – the first-ever such law in North America. We are also proud that environmental leaders worldwide have endorsed the document.

Rights of Rivers in Mexico

ELC has been working working with local partners – including Cuatro al Cubo and others – to secure legal rights for rivers in Mexico. Based on this effort, the Legislative Assembly of the Federal District included the rights of waterways within the recently approved Water Sustainability Law of Mexico City (“Ley de Sustentabilidad Hídrica de la Ciudad de México”). This landmark water law recognizes that rivers, channels and streams possess a right to flow, a right to avoid harmful alterations to ecosystems and biodiversity, a right to be free from contamination, and a right to rescue and rehabilitate important water zones, amongst others. The law is only awaiting publication in the "Official Gazette" of Mexico City to become official.

In drafting the rights of waterways provision in the law, lawmakers looked to ELC’s Universal Declaration of the Rights of River, which was drafted by ELC with significant input from experts worldwide. However, it was the adamant efforts of Cuatro al Cubo, its lawyer, and many other leading environmental partners in Mexico that ensured this language was included in the law. ELC is proud to support their efforts!

What’s next for rivers in 2018?

ELC and partners seek to build from our victory in Mexico to secure immediate rights for three rivers in particular: the Magdalena, Atoyac (Puebla), and San Pedro Mezquital. All of these efforts will build from the existing momentum from the recent victory in Mexico City. To help achieve these goals and further mobilize support, ELC will attend the Rights of River Forum, to be held in Puebla, Mexico in March 2018. Finally, we will solicit feedback on and endorsements of the Universal Declaration of the Rights of Rivers from additional entities from across the globe in order to build consensus.

Enforcing the Rights of Rivers and Lakes in the United States and Canada

ELC continues to advocate for the California State Water Resources Control Board to formally identify the most over-diverted waterways as “impaired” due to low flows under the Clean Water Act. Identification would help restore water to these rivers and streams. In November 2017, ELC and co-plaintiffs filed a lawsuit on this issue, with Lawyers for Clean Water representing our organization.

ELC has also launched an amicus brief campaign to advocate for rights of rivers and lakes in US and Canadian courts. An amicus curiae – literally, "friend of the court" – is a non-party to the case that can submit a brief as an outside expert. This campaign will showcase the rights of rivers movement to judges and significantly increase our changes of a favorable court decision.

Finally, ELC is working with Juliee de la Terre (Sacred Land Sacred Water) to recognize the Great Lakes Ecosystem and a living legal entity. The ELC and partners have drafted a declaration defining the fundamental rights of the Great Lakes, which is still open for feedback and endorsement. We have also recently secured agreement from a major law school in the area to host one or more events on the rights of the Great Lakes (announcement coming soon).

What’s next for 2018?

ELC will continue to advance the lawsuit defending the right of waterways to be listed as “impaired” due to altered flows under the Clean Water Act. In addition, ELC will create a toolkit so that advocates across the country can make similar legal arguments in their states, resulting in great protections for flows, aquatic species, and freshwater ecosystems. ELC also plans to launch its amicus brief campaign by engaging in at least five lawsuits in the US and Canada as an amicus curiae. Finally, with regards to the Great Lakes, ELC will host several community events (including at a major law school) and will implement the rights of the Great Lakes into at least one local law.

Rights of Nature at the United Nations and IUCN

ELC also continued to engage the United Nations and International Union for Conservation of Nature (IUCN) on rights of nature. For example, ELC’s recent contribution to the UN Harmony with Nature resolution was highlighted as an example of successful Earth Law in practice. Additionally, ELC continued to engage the IUCN and World Commission on Environmental Law (WCEL) – an international body of legal experts of which ELC’s Directing Attorney is a member. For example, ELC submitted to the WCEL online seminar to train lawyers and judges on rights of nature issues (currently under consideration).

What’s next for 2018?

ELC will advance the rights of rivers within the United Nations, in order to reflect current legal developments in this area within international resolutions. Additionally, ELC will train judges and lawyers on rights of nature at its planned online seminar, which will feature leading judges and other legal experts from around the world. Other planned activities include distributing legal briefs to members and speaking at international events. 

Michelle Bender at the 2017 Earth Expo in Oakland (Grant Wilson offscreen)

Thank you for your continued support on behalf of ELC and Mother Earth. We look forward to reporting back on the progress of all our initiatives. If you would like to learn more or volunteer you can contact Grant Wilson for River/Land Rights (gwilson@earthlaw.org) and Michelle Bender for Ocean Rights (mbender@earthlaw.org).

It’s not too late to make a tax-deductible donation. It’s your Earth. Help us protect it.

Dams + Climate Change = Bad News

By Samantha Stahl

The United States has 9,265 dams, second only to China which has a staggering 23,842.[i]  With climate change causing water shortages and storm surges, this might seem like good news. Dams store water, provide renewable energy and prevent floods. Unfortunately, they also worsen the impact of climate change. They release greenhouse gases, destroy carbon sinks in wetlands and oceans, deprive ecosystems of nutrients, destroy habitats, increase sea levels, waste water and displace poor communities.

Crumbling, badly maintained dams also create a flood risk; endangering lives and putting significant financial strain on local governments and industry.

Dams = water loss

Our systematic overuse of fresh water, in addition to the already worsening effects of climate change, creates a need for artificial reserves. According to the American Water Works Association, in 2010 Americans withdrew 355 billion gallons per day (BGD) from the nation’s water systems; 12 percent for public water supply, 32 percent for irrigation and 45 percent for thermoelectric power.[ii]  The average American uses around 2,000 gallons of water per day.[iii] 

Dams would appear to conserve water by storing it, but the bigger picture shows this is not true.

Generally, reservoirs and artificial lakes have a larger surface area than the rivers and channels that feed them. Larger surface areas expose more water to the sun, which speeds up evaporation. And due to the nutrient rich water from trapped sediment, dams and reservoirs also promote aquatic plant growth. The plants’ transpiration contributes to the already heightened evaporation rate.  Every year, about 170 cubic kilometers of water evaporates from the world’s reservoirs. This accounts for roughly 7 percent of all fresh water consumed by human activities![iv]

A study conducted by the European Water Association on the evaporation rate from artificial and municipal lakes and reservoirs in Istanbul concluded that the amount of evaporation per year was equal to the city’s water needs for about 26 days.[v]

The evaporation also affects the microclimates of the surrounding areas, disrupting natural temperature fluctuations, ecosystems and habitats.  For example, increased evaporation in the region of a large dam changes the moisture concentration of the air, leading to increased heavy rainfall.[vi]  This deprives the surrounding areas of their traditional rainfall patterns, placing stress on ecosystems and municipalities that depend on those patterns. And it leads to an increased rate of storm surges, which can create more frequent and intense flooding than the dam was designed to handle. 

Additionally, dams disturb the flow and composition of the water within rivers and channels. Water released downstream from dams has unnaturally high energy and very little sediment, which causes “hungry water” to run forcefully, eroding the riverbeds, without sufficient sediment concentration to slow it down.[vii]  This deepens the riverbed compared to the surrounding water table, which causes the ground water to rush into the channel and become surface water – a process known as incision.[viii] 

Incision is a natural process in the life of rivers and channels, but exacerbated incision, caused by rapid erosion, results in the draining of surrounding groundwater.  The USGS has reported that between 2000 and 2008 the US depleted enough groundwater reserves to contribute 2 percent of the global sea level rise during that time.[ix]

As of 2012, 40 percent of the world’s major river basins’ renewable water supply had been depleted.[x]  This creates a vicious cycle, where growing demand requires more dams to keep up with fresh water usage. Surface and ground water depletion then accelerates too quickly for natural replenishment to be possible. 

Dams = Habitat destruction

Any dramatic change in river composition stresses both up- and downstream habitats. Habitat loss is the leading cause of extinction. 

Dams disrupt fish and bird migration. The change in the composition of the river interferes with the chemical signals guiding species through their biological processes. And the physical barrier of the dam blocks species from their traditional spawning and rearing locations. As a result of this, pollution, and the effects of climate change, fresh water species have lost 76 percent of their populations since 1970.[xi]  The Snake River running through the Northwestern United States, for example, has 15 dams!  Since the completion of the Lower Granite Dam in 1975, the population of Sockeye Salmon in the region has severely declined; between 1985 and 2007, only about 18 Sockeye Salmon return to Idaho each year.[xii]

Additionally, changes in the timing and flow of the rivers can create conditions which threaten the survival of the species that have evolved to live there.  Any alteration in the structure and composition of the river can have disastrous effects on the surrounding species, in many cases leading to extinction.[xiii]       

Downstream ecosystems suffer from the lack of sedimentation in the water that flows over the dam. Normally, nutrient rich sediment regulates and provides nourishment to downstream habitats.  But reduced sedimentation creates less fertile soil, stunting the growth of dependent species.  The lack of vegetative growth can lead to erosion and to the destabilization of the surrounding areas.[xiv] 

Downstream habitats are also severely impacted by changes in salinity and oxygen levels.  Due to the high rate of evaporation and growth of aquatic vegetation within the reservoir itself, water that travels downstream from a dam usually has a higher salinity content and a lower oxygen concentration than normal.[xv]  This change in the chemical makeup of the water creates detrimental conditions for species that previously thrived in those areas.

Dams also negatively impact ecosystems and habitats upstream.  Trapped river borne nutrients can facilitate the growth of toxic algae blooms.  Communities around the world from South Africa to California have had to impose drinking and swimming bans to protect people from water-borne illnesses. Some dams have killed off fisheries and entire aquatic ecosystems.[xvi] 

Even in less devastating circumstances, the new stagnant water environments created in the reservoir damage the conditions of the existing habitat. They also host non-native and invasive species that further undermine the integrity of the surrounding ecosystems.  

Dams = Greenhouse gases

A recent study found that reservoirs account for about 4 percent of human-made climate change.[xvii]

Most reservoirs, especially those in tropical regions, emit significant amounts of greenhouse gases because of anaerobic bacteria that break down the vegetation at the base of the reservoir, giving off carbon dioxide and methane. 

Additionally, the changes to rivers’ timing, chemical and sediment composition, and flow lead to dramatic variations in floodplains and wetlands, which can cause the destruction of surrounding forests.[xviii]  Deforestation contributes significantly to climate change because the trees no longer store additional carbon dioxide and their previously absorbed carbon is released into the atmosphere. And the drying out of wetlands destroys another valuable carbon sink.

Dams are detrimental to carbon sinks in the ocean as well.  Studies of the Congo River reveal that nutrient- and sediment-rich water from the river drives biological processes deep into the Atlantic Ocean, contributing to algae growth.[xix]  When those sediments and nutrients disappear, the conditions that support carbon dioxide-storing algae break down, destroying the carbon sink along with it.  

Additionally, blocking the sediments traveling downstream can have devastating effects when river deltas are deprived of the silt they need to defend against damage from the ocean.  Without the shoring up of river deltas and wetlands, inland ecosystems and human communities become even more vulnerable against the storm surges and sea level rises caused by climate change.[xx] 

Dams = Earthquakes            

Scientists have attributed over 100 earthquakes around the world to dams and reservoirs,[xxi]  a phenomenon known as Reservoir Induced Seismicity.[xxii]  This happens when extra water seeps into the micro-cracks and fissures under the reservoir and surrounding areas and lubricates faults already under tectonic strain.  The 7.9 Sichuan Earthquake in China in 2008, killed 80,000 people and has been linked to the construction of the Zipingpu Dam.[xxiii]    

Dams = Trouble for people already affected by climate change

Dams displace around 80 million people worldwide.[xxiv]  From the people removed from dam building sites to the people who lose their homes to failing dams, most of the displaced communities come from impoverished areas already affected by climate change.

Dams that displace large populations often cause human rights violations. Authoritarian governments in Burma, China, Colombia, Ethiopia, Guatemala, Sudan and other countries have responded to dam opposition with violence, intimidation and threats. In the worst dam-related incident, more than 440 indigenous people died in the suppression of opposition to Guatemala's Chixoy Dam in 1982.[xxv] 

Additionally, old and failing dams generate both dangers and costs. According to the American Society of Civil Engineers, by 2020, 70 percent of the United States’ dams will be more than 50 years old.[xxvi]  And according to ICOLD, 2.2 percent of dams built before 1950 failed before 1995.[xxvii] 

In 2017 nearly 2,000 state-regulated “high hazard” dams need repair. These are dams that could result in a high loss of life if they fail.  While dam construction technology has advanced and dams built today have improved, it would still cost an estimated $300 billion to secure the world’s dams.[xxviii]  And this is in addition to the $2 trillion that has already been spent constructing dams globally since 1950.[xxix] 

Due to the high cost of maintenance and safety, many of the world’s dams get more dangerous as they age. The Mosul dam in Iraq and the Kariba dam in Zambia rank among the world’s most dangerous.[xxx]  Should the Mosul dam fail, it could result in the death of 500,000 people and deprive millions more of power and water.  The 58 year old Kariba dam could result in 3.5 million dead, leave 40 percent of South Africa without power and cause untold damage to surrounding wildlife, plus the destruction of another nearby dam, the Cahora Bassa.[xxxi] 

The US also hosts several dams close to failure. Earlier this year, fear of the collapse of the Oroville Dam Spillway[xxxii]  resulted in the evacuation of 200,000 people in northern California. While the dam is still intact, the eroding spillway, which is a critical piece of California’s flood control network, will make it difficult for the dam to manage heavy flows and rainfall.  And, in February, the Twentyone Mile Dam in Nevada burst, causing massive damage to private property and local infrastructure.[xxxiii] 

Growing recognition that old and eroding dams pose too high a risk have resulted in a growing number of dam removals. The United States has taken down 1,384 dams since 1912, with a majority of those dams removed in the last two decades, and 72 in 2016.[xxxiv]  Removing damaged and aging dams protects the surrounding population from disaster and allows the rivers to restore their natural and biological integrity.         

Rights of Nature = Healthy waterways + Sustainable relationship  

Fresh water is vital to the functioning of Earth’s hydrologic cycle, the maintenance of aquatic and surrounding ecosystems, and the support of human life.  Preserving healthy and high functioning waterways contributes to controlling global temperatures and sustaining fresh water reserves, among countless other benefits. 

Rivers are important in their own right, but also matter for their ability to maintain the health of surrounding river catchments, floodplains, and wetlands.  If we continue to build dams that destroy our waterways’ ability to support vital ecosystems, we continue a historical paradigm that values short-term progress and developmental achievement over the sustainable health and integrity of Earth’s systems.

We will be on the path to a sustainable relationship with a healthier environment when we recognize that Earth has intrinsic rights to thrive, evolve and flourish. Earth law recognizes that Earth’s inherent rights are separate and distinct from property and ownership rights bestowed by humans. By actively promoting this new paradigm, we can forge a more balanced and reciprocal relationship between human activities and Earth’s natural systems. 

Addressing the flaws in the traditional approach to development and acknowledging the rights and interests of waterways will enable us to better care for the planet and its resources. This will benefit humans too.  By understanding sustainable water management and implementing those principles into our industry and governmental systems, we can better address the causes of waterway degradation.  Through understanding what waterways need to function properly, we can create laws and regulations that can better outline the parameters of human activity. 

Protecting waterway health must be one of the highest priorities when determining how water is used.  If it is not, our waterways will continue to degrade and will be unable to provide the basic functions on which both nature and humankind depend. 

To read about the Universal Declaration for Rights of Rivers, click here.

Consider staying informed and volunteering to support Earth Law Center’s work to protect our planet’s waterways. And if you benefitted from this article, please offer your support ELC continue creating content like this that helps shift the paradigm of environmental law and understanding.

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[i] http://www.icold-cigb.net/article/GB/world_register/general_synthesis/number-of-dams-by-country-members

[ii] https://www.awwa.org/Portals/0/files/resources/water%20utility%20management/sotwi/2015-AWWA-State-of-the-Water-Industry-Report.pdf

[iii] http://voices.nationalgeographic.org/2010/08/18/american_lifestyle_costs_nearl/

[iv] https://www.internationalrivers.org/resources/how-dams-affect-water-supply-1727

[v] http://www.ewa-online.eu/tl_files/_media/content/documents_pdf/Publications/E-WAter/documents/40_2006_07.pdf

[vi] http://onlinelibrary.wiley.com/doi/10.1029/2009EO480001/pdf

[vii] https://www.wou.edu/las/physci/taylor/g407/kondolf_97.pdf

[viii] https://definedterm.com/incised_river_channel

[ix] https://pubs.usgs.gov/sir/2013/5079/SIR2013-5079.pdf

[x] https://voices.nationalgeographic.org/2012/03/14/are-we-running-out-of-water/

[xi] https://www.internationalrivers.org/node/8326

[xii] https://www.earthlawcenter.org/new-blog-1/2017/11/dam-removal-to-restore-snake-river-to-health

[xiii]file:///C:/Users/Samantha/Google%20Drive/MY%20JOBS/Earth%20Law%20Center/Blogs/Dam%20Blog/Research/Water_Storage_Paper_21.pdf

[xiv]file:///C:/Users/Samantha/Google%20Drive/MY%20JOBS/Earth%20Law%20Center/Blogs/Dam%20Blog/Research/Water_Storage_Paper_21.pdf

[xv] https://www.internationalrivers.org/environmental-impacts-of-dams

[xvi] https://www.internationalrivers.org/resources/how-dams-affect-water-supply-1727

[xvii] https://link.springer.com/article/10.1007%2Fs11027-007-9086-5

[xviii] https://www.internationalrivers.org/resources/how-dams-affect-water-supply-1727

[xix] https://www.internationalrivers.org/environmental-impacts-of-dams

[xx] http://probeinternational.org/library/wp-content/uploads/2011/10/sedimentation.pdf

[xxi] http://www.sciencedirect.com/science/article/pii/S0012825202000636

[xxii] https://www.internationalrivers.org/sites/default/files/attached-files/ris_final_lorez2.pdf

[xxiii] https://www.internationalrivers.org/sites/default/files/attached-files/ris_final_lorez2.pdf

[xxiv] https://www.internationalrivers.org/sites/default/files/attached-files/world_commission_on_dams_final_report.pdf

[xxv] https://www.internationalrivers.org/campaigns/chixoy-dam

[xxvi] https://www.nytimes.com/interactive/2017/02/23/us/americas-aging-dams-are-in-need-of-repair.html

[xxvii] https://www.internationalrivers.org/and-the-walls-came-tumbling-down

[xxviii] https://www.internationalrivers.org/and-the-walls-came-tumbling-down

[xxix] http://www.hydrocoop.org/the-role-of-dams-in-the-xxi-century/

[xxx] https://oilprice.com/Alternative-Energy/Hydroelectric/The-Worlds-Most-Dangerous-Dams.html

[xxxi] https://oilprice.com/Alternative-Energy/Hydroelectric/The-Worlds-Most-Dangerous-Dams.html

[xxxii] https://www.rt.com/usa/377210-dam-disasters-in-america/

[xxxiii] https://www.nytimes.com/interactive/2017/02/23/us/americas-aging-dams-are-in-need-of-repair.html

[xxxiv] https://s3.amazonaws.com/american-rivers-website/wp-content/uploads/2017/02/15104536/DamsRemoved_1999-2016.pdf

Earth Law Center’s Fight to Return Rights to the Ocean

By JJ Lee

The rise of the conservation movement in the 1970s heralded an era of awareness of the dangers of exhausting the ecological limits. Since then, activism by citizens around the world has carried the fight against climate change to the forefront of global attention.

Yet despite the progress, efforts have not reversed the damage to Nature. A failure to recognize and address climate change is symptomatic of a greater problem: the treatment of the Earth as an endless resource for human use rather than as a rights-bearing entity. To address this root cause of continued environmental degradation, Earth Law Center works to transform the law to recognize and protect nature’s inherent rights to exist, thrive and evolve.

Why does the ocean need rights?

Overfishing, climate change, and plastic pollution[i] have left the ocean in a rapid state of decline and in imminent danger of losing its capacity to support life.[ii] Society uses marine environments in many ways including fishing, tourism, aquaculture, and energy production.

Current legal structures to regulate these activities view the ocean as a resource, and have established loopholes and permits that allow for actions that choose economic benefit over ecosystem health and stability. As a result, 60 percent of the world’s major marine ecosystems are degraded or used unsustainably, leading to a decline in marine biodiversity of 49 percent, roughly half of what it was 50 years ago.[iii]

Our relationship with the ocean is unsustainable. With the cumulative economic impact of poor ocean management practices costing USD 200 billion per year (UNDP, 2012), there exists an opportunity to adjust our practices to improve the effectiveness of regulations.

We need to level the playing field, and balance human wants and needs with that of the ocean. Sustainable growth and livelihoods can only occur through sustained and restored ocean health. Rights for the ocean is the next step in evolving marine protection in order for humans to truly live sustainably within the ocean’s and planet’s limits.

Rights for the Ocean Campaign Launched

In Spring 2017, ELC launched the Rights of the Ocean Initiative to promote an Earth-centered paradigm in ocean governance. The initiative sums up the growing trend worldwide towards recognizing and protecting Nature’s inherent rights to be healthy as the best solution to today’s pressing environmental challenges.

Led by Ocean Rights Manager Michelle Bender, the Ocean team at ELC work to support the global movement for the worldwide legal recognition of the rights of the ocean. The Ocean team support the movement by raising awareness, educating others, and carrying out analytical research.

Early efforts engaged the UN General Assembly on Harmony with Nature recommendation for all parties to develop a new legal and policy framework for the implementation of the Rights of Nature.

The initiative connected and unified the work and missions of organizations worldwide. ELC shared the initiative with NGOs accredited to the conference, International Union for Conservation of Nature (IUCN) members, UN country delegates and a comprehensive list of ocean-related organizations. Approximately 25 percent of the organizations that received it, responded to ELC’s email. Initial sign-ons and enthusiastic support from organizations such as Mission Blue, Ocean Care, the Great Whale Conservancy and Organización para la Conservación de Cetaceos eventually grew into a coalition of over 60 signatory organizations from 32 nations.

ELC recognized the opportunity and need to raise further awareness and build a network of support for the new paradigm at the highly anticipated UN Ocean Conference in June 2017. Executive Director Darlene Lee presented the “Incorporation of the Inherent Rights of the Ocean into the Ocean Conference 2017 ‘Call for Action’” on behalf of its signatories, supporters and members.

Says signer Roxana Schteinbarg from the Instituto de Conservación de Ballenas, “Thank you for this incredible initiative!  We hear all the time great speeches talking about sustainable development but putting priority on human needs. This is not correct and it is the time to change our perspective and consider first the need of the planet.”

Since the Ocean Conference, ELC has partnered with organizations internationally to spur the creation of rights-based marine protected areas in various nations. ELC has also produced the Earth Law Framework for the Marine Protected Areas after recognizing that future endeavors around the world will benefit from sharing a set of guidelines developed by coordinated expert analysis.

MPAs can contribute to reducing poverty, building food security, creating employment and protecting coastal communities[iv]

• Expanding the coverage of no-take MPAs to 10 percent and 30 percent  shows benefits exceed the costs, with ratios in the range of 3.17 – 19.77[v]; from the most conservative estimate of US$490 billion and 150,000 full-time jobs in MPA management, to the most optimistic estimate of US$920 billion and over 180,000 jobs by 2050.[vi]
• Rights of oceans makes it a legal responsibility to adopt sustainable practices into ocean-dependent industries and allow for continued, long-term ecosystem and economic stability and growth.

Creating the Earth Law Framework for Marine Protected Areas

ELC volunteers conducted over 500 hours of  research and analysis to create a framework that builds upon the one initiated by the IUCN, NOAA, and Rights of Nature precedents.

The ELC largely focused on Step Two, “Developing the legal framework,”of the IUCN’s Guidelines for Marine Protected Areas,[vii] a document that provides instructions for countries on various actions needed to establish an effective system of marine protected areas. The Framework also adapts and incorporates the key components of the MPA creation and implementation in national systems from the “Framework for the National System of Marine Protected Areas of the United States of America”[viii] by NOAA. Most importantly, the Rights of Nature precedents that give ecosystems legal identity served as a key point of analysis in the development of the Framework. The ecosystems examined include the Galapagos Islands of Ecuador, the Whanganui River in New Zealand and the Te Urewera National Park in New Zealand, which all have originating statutes that accord them rights as well as subsequent management plans that outline implementation.

Through the process, ELC learned that language is key. A single word can make a decisive difference between success and failure. For example, though the IUCN Guidelines intend for ecosystem protection, its recommendations maintain a human-centered approach, leaving room for interpretation. The IUCN defines the goal of MPA networks as “provid[ing] for protection, restoration, wise use, understanding and enjoyment of the marine heritage of the world in perpetuity [….] in accordance with the principles of the World Conservation Strategy of human activities that use or affect the marine environment” — “wise use” meaning, “for the use of people on an ecologically sustainable basis” in consideration of the continued welfare of people affected by the creation of the MPA.[ix]  ELC believes “wise use” should also include the use of the ecosystem by other species.

With the ultimate goal of becoming a guideline for implementing an Earth-centered approach to marine protected area governance, the draft includes a collaborative “call for inputs” which aims to collect best practices and recommendations as well as to achieve a global consensus for advancing effective policies.

ELC launched the draft of the Framework at the Fourth International Marine Protected Areas Congress in September, where it connected with a host of organizations, including the IUCN, the World Wildlife Federation, Conservation International, the Conservation Land Trust, Greenpeace, Fundacion Meri, Costa Humboldt, Fiscalia Del Medio Ambiente, and the Forum for the Conservation of the Patagonian Sea and Areas of Influence.

Mission Blue, an alliance of more than 180 respected ocean conservation organizations, multinational corporations, and individual scientific teams and NGOs around the world, working to build public support for ocean protection, is one of 63 organizations that supported ELC’s UN Ocean Conference Initiative and which now endorses the Earth Law Framework for Marine Protected Areas. The Framework has since been sent to over 1000 experts and organizations globally, including experts from the UN Harmony with Nature Initiative, NOAA and organizations such as Oceana and the Ocean Conservancy, for recommendations and further improvements.

ELC has received valuable input. Advice received includes the need to consult and integrate the recommendations of indigenous leaders as well as to make clear that the Framework balances the rights of humans with that of Nature. Other intriguing responses suggest an integrated approach that includes “CSOs, traditional institutions, research, academia and policy makers,” the creation of a UN-specific group focused on commitment to the seas, an emphasis on education for fishermen on the benefits of MPAs, and the implementation of a business sponsorship program for “Adopt an MPA.” As one submission highlighted, corporate rights hold a key part of the solution in changing systemic values towards the environment:

“the bottom line is corporate structure where company law states benefit to the shareholders is primary. Company law needs to state that a company has a primary duty to preserve the environment, and secondary duty to produce money for shareholders.”

 What’s next for the recognition of ocean rights

The fight is far from over!

The new ocean governance requires overcoming the weaknesses of the current regime. These weaknesses include the lack of information sharing, transparency, accountability, and compliance reporting mechanisms as well the systematic integration of regional and national conservation arrangements. Insufficient international regulatory authority remains the most challenging priority in securing a thriving future for the ocean.

The universal adoption and implementation of a rights-based legal structure offers a unique long-term solution for the many challenges the ocean faces. Only a framework that recognizes and protects the ocean and all of its ecosystems as living entities addressess the root causes. These inalienable rights include: right to life, freedom from abuse, and ability to maintain vital processes necessary for supporting life.

Achieving universal adoption and effective implementation of a rights-based ocean governance framework will involve the integrated effort and coordination of all levels of government as well as nongovernmental partners, including the private sector, local communities and stakeholders, NGOs, scientific and academic experts, and most importantly, private citizens. It is important to  move beyond top down decision-making.

Marine Protected Areas in particular require a holistic approach that integrates ecological, economic, social, and political considerations with an emphasis on participatory decision-making from an early stage and science-based management through open dialogue. Proper legislation through political effort, adequate financial and human resources, institutional capacity, sustained public engagement, resource management and marine spatial planning, collaborative opportunities and initiatives, effective monitoring and reporting systems, and the creation of shared social norms are just a few examples of the many actions necessary for the implementation of effective marine protected areas.

Growing global momentum for rights of nature

In 2008, Ecuador became the first nation to recognize the Rights of Nature in its Constitution, followed by Bolivia in 2011. Over 40 municipalities in the US have passed rights of nature ordinances, including Santa Monica which ELC led. The Whanganui River in New Zealand and Atrato River in Colombia enjoy legal rights recognition today, and in 2012, the Supreme Court of India recognized the Constitutional duty of citizens to protect the environment and ruled that human interests do not take automatic precedence over that of nonhumans. 

Specifically pertaining to the rights of nature as applied to marine protected areas, Ecuador and the Law of the Galapagos represents the growing momentum of the Earth Law Framework. The 2014 Management Plan for the Protected Areas of Galapagos for Good Living recognizes the connection between development and conservation, human dependence on natural ecosystems, and the limits of the marine ecosystem that cannot be breached. The Special Law limits economic activities to permanent residents and maintains minimal human interference in the ecosystems. Similar efforts in New Zealand led to the Sea Change Marine Spatial Plan, which proposes the recognition of the rights of Hauraki Gulf Marine Park and a holistic and integrative approach to improving the Gulf ecosystem, health, and the wellbeing of those dependent on it.

These victories would not have been possible without individuals combining their collective power to propel forward critical change.

We need to uphold the rights of the ocean

The terrible consequences of continued harm to the environment underlines the interconnectedness of all life on Earth. We need your help in driving forward a new normative paradigm of conservation ethics and actions for a healthy ocean, now and for future generations. No contribution is too small when something as fundamental to our own survival as our spaceship Earth is at stake. There are many ways to get involved - from engaging your local government in grassroots progress to joining international organizations leading the effort to save the ocean at the forefront of policy-making.

The adoption of universal rights for nature or new rights-based ocean governance is only half the battle. Ensuring that such measures remain protected and permanent, as well as adaptive to the evolving demands of the needs of the ocean, requires sustained engagement and informed action.

Here’s how you can help the ocean gain legal rights recognition

• Write to Congress or specific members (Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard, among others) about your support for specific laws (https://www.congress.gov/bill/115th-congress/senate-bill/31/all-info)
• Congressional Ocean Advocates may be one resource for that particular method: https://www.oceanchampions.org/congressional-champions/
• Or https://sanctuaries.noaa.gov/involved/, which has some specific instructions on how you can get involved

The enthusiasm and support that the Rights of the Ocean Initiative has garnered since its inception indicate that the tide may finally be turning, and the Earth Law Center stands steadfast in its fight to spread further awareness of and education on ocean rights, with the goal of seeing its effective and long-term actualization.

To accelerate the premature termination of nature, humanity ensures its own rapid and untimely end. The Earth as a living, breathing entity that requires the protection and stewardship of humankind who reap its bounty is not a revolutionary concept, but one that has been largely forgotten. An eco-centric approach that returns fundamental rights to nature is the next bold step that we must make to achieve sustained prosperity for all whom equally draw and create life from it.

To weigh in on the Framework or to participate in the Rights of the Ocean Initiative, visit the online form www.earthlawcenter.org/oceanrights or email Michelle Bender at mbender@earthlaw.org before December 15th.

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[i] George Leonard & Andreas Merkl, Confronting Ocean Plastic Pollution at the Global Scale: New Insights and Strategic Opportunities, 1 (2015) (internal document).

[ii] Global Issues, Declining Ocean Biodiveristy, (Sept. 1, 2017, 7:09pm), http://www.globalissues.org/article/171/loss-of-biodiversity-and-extinctions#DecliningOceanBiodiversity.   

[iii] Living Blue Planet Index, World Wildlife Fund, Living Planet Report, 2014, available at: http://www.livingplanetindex.org/projects?main_page_project=BluePlanetReport&home_flag=1. 

[iv] https://www.earthlawcenter.org/new-blog-1/2017/8/ecosystem-based-approach-to-mpas

[v] https://www.oecd.org/environment/resources/Marine-Protected-Areas-Policy-Highlights.pdf

[vi] http://ocean.panda.org/media/WWF_Marine_Protected_Areas_LR_SP.pdf

[vii] https://www.iucn.org/sites/dev/files/import/downloads/mpaguid.pdf

[viii] https://nmsmarineprotectedareas.blob.core.windows.net/marineprotectedareas-prod/media/archive/nationalsystem/framework/final-mpa-framework-0315.pdf

[ix] IUCN MPA Guidelines, supra at xx

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/

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/

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/

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/