If MPAs and the ecosystems and species within them had a legal right to be healthy and managed well, what effect would this have on sites? According to a campaign that proposes such legal rights, one outcome would be the end of the problem of paper parks. In other words, by allowing citizens to sue their governments on behalf of poorly managed or underfunded MPAs, this would provide a powerful new means to pressure agencies to manage their sites more effectively.
The concept may seem revolutionary, and it could certainly disrupt the status quo of the MPA field, where paper parks make up a significant portion of the global tally. But the idea is based on legal precedent. Ecuador has a provision in its national constitution that confers legal rights to Mother Nature, and Bolivia has a freestanding law that does the same. In the US, the Endangered Species Act implicitly grants species with the right to life, namely by creating a listing and protection process to prevent them from becoming threatened or extinct.
Earth Law Center, a US-based legal organization that is championing the campaign for legal rights for MPAs, believes it is an idea whose time has come. Already more than 60 NGOs worldwide have signed on in support of the campaign, including Sylvia Earle’s Mission Blue organization.
What it could look like in practice
Michelle Bender leads the campaign for Earth Law Center. She offers a scenario to show what an MPA with legal rights could look like in practice. “Let’s say the primary objective of an MPA is defined as the protection of whales and dolphins,” she says. “Under the legal framework, management’s actions must then guide us toward protecting those species. If the MPA’s regulations do not protect cetaceans, such regulations could be challenged in court and corrected.” In this scenario, protecting cetacean rights in the MPA could include regulating tourism and shipping traffic to have minimal impact on these species, prohibiting extractive activity in their critical habitat, and maintaining populations at a level that allows normal structure and function to be sustained.
The key is that citizens would hold the right to sue on behalf of the MPA and its species if they believed the MPA’s or species’ rights were being violated (or if regulations were not believed to pick the most sustainable alternative, adhere to the best available science, etc.). “So, for example, if illegal fishing is occurring in an MPA,” says Bender, “citizens could pursue legal action without having to prove the activity directly harmed their lives. This helps to address a huge roadblock to environmental protection cases. Standing is a legal right to bring a lawsuit to court in which the ruling addresses injury or harm to the entity filing the suit. In most current systems, humans can sue only on behalf of the environment if they themselves can demonstrate injury or harm to their individual lives.” By giving citizens the right to sue on behalf of MPAs, even if the citizens themselves are not directly impacted, that roadblock would largely disappear.
One common question is, If MPAs and their species had legal rights, would this mean that all fishing would be off-limits in MPAs? Bender says no. “It is important to note that legal rights does not mean no fishing,” she says. “What it does mean is that there would need to be carefully considered and strategically placed restrictions on fishing in critical areas to protect biodiversity and food security.”
It would also mean shifting our approach to fishing, she says, so that quotas were decided on a true systems basis – considering factors beyond just catch mortality, such as natural predation, natural stressors, pollution, and more – and set at levels that allow populations to regenerate themselves. “The goal is to stay at a consistent population level rather than a slow (or fast) decline, because eventually a decline will lead to zero,” she says.
A fragmented approach?
Retired from his position as chief scientist for Canada's Department of Fisheries and Oceans, Jake Rice remains engaged with multiple international and regional negotiations on marine resource management. He says his main concern about conferring legal rights to MPAs and the species within them is that it would amount to a fragmented approach.
“Suppose the biodiversity in an MPA had legal status such that harming a fish, seabird, or marine mammal inside the MPA was a prosecutable offence,” he says. “But what if it swam or flew outside the MPA – what would happen to its rights? Would they be gone? I would expect advocates of this approach would want a degree of protection to be transferrable outside the MPA. So then is every piece of biodiversity that migrates through an MPA protected throughout its life history, no matter where in the ocean it may end up?”
Rice says that once a basis for offering legal status is acknowledged within a particular geographic or jurisdictional space, it becomes difficult for that status not to be acknowledged beyond that space as well, over time. Like so many civil rights movements that started with regional recognition of rights then later became more universal (based on the concept of “equal justice under the law”), this could conceivably be the case for MPA rights, too. He suggests that the MPA rights campaign could be the thin edge of a much wider wedge to secure legal rights for the entire ocean.
Bender acknowledges that ocean rights are in fact the goal. At the UN Ocean Conference in June 2017, Earth Law Center presented a Call for Action to nations to incorporate ocean rights (beyond just MPA rights) into their marine legal systems, and into international treaty law.
“The end goal is to gain legal rights for the whole of the ocean,” says Bender. “We believe nature in its entirety should be recognized as a life-giving partner and vital to the wellbeing of humankind. The reason we have focused on MPAs is, essentially, to start somewhere. There is a lot of support for the creation of MPAs in the global conservation community right now. And when well-resourced and effectively managed, MPAs are important mechanisms for safeguarding ocean health. We all have the same end goal – to protect and conserve the ocean – so why not use every tool at our disposal?”
Aside from concerns about how to confer legal rights to MPAs or the ocean, or what intended or unintended consequences may emerge from such a change, the counterpoint to the basic concept of ocean rights would be that the ocean and its species should not have a right to be managed well, nor a right to exist. An opinion piece in the Washington Post in November by a biologist suggested that we don’t need to save species because extinction is part of evolution. That is certainly one viewpoint. But for those who are opposed to such extinction, a rights-based approach could be one way of addressing it.
For more information:
Michelle Bender, Earth Law Center, US. Email: mbender [at] earthlaw.org
Jake Rice, Canada. Email: Jake.Rice [at] dfo-mpo.gc.ca