Who Speaks for the Ocean?

By Michelle Bender

Constituting more than 95% of the biosphere, the Ocean supports all life forms by generating oxygen and absorbing carbon dioxide, recycling nutrients, and regulating global climate and temperature.  However, in just the past 50 years, overfishing, climate change, and plastic pollution have caused half of the Ocean’s species to disappear.

Our solutions are essentially band aid solutions, aiming to slow the decline in ocean health, but not aiming to stop or reverse it. Governments and industry continue to pollute and degrade marine ecosystems under the false assumption that activities which support conservation are costs to the economy and human livelihood. We see this time and again; scientific fishing restrictions are ignored for higher quotas to please fishermen, oil leases are sold in biodiverse or fragile areas because we seemingly profit more by exploiting an ecosystem rather than leaving it alone, and we resist the transition to renewable energy or sustainable gear because it does not produce the same profit margins.

We need a paradigm shift in how we value and treat the Ocean. We must recognize what indigenous people have known for millennia- that we have an intimate relationship with the Ocean and have a reciprocal responsibility to protect and conserve that which sustains us. Otherwise, we will continue to place our needs above that of the Ocean — and the health of the planet and subsequently human health will deteriorate. 

Transforming our relationship with the Ocean

Ocean Rights is an emerging legal framework that transforms our relationship with the natural world. The Ocean shifts from being viewed as a resource and property here for human use, to a living entity with intrinsic value worthy of representation. Such a transformation allows us to effectively conserve and protect the Ocean by creating standards for decisionmaking centered around reciprocity, interconnectedness, responsibility and relationships, sustainability (an ecocentric view) and harmonious living. 

For example, in 2008, Ecuador amended its Constitution to include the Rights of Nature, becoming the first country in the world to recognize that Nature has rights to exist, restoration and representation. Since, the general public has made multiple stands to protect the environment. Ecuadorians have stood up against the destruction of the Vilcabamba River by a road widening project, the destruction of Mangroves by shrimp farms, and helped to prevent a dolphinarium, all in the name of the Rights of Nature. In fact, there have been over 30 cases brought on behalf of Nature in Ecuador, both by the government and civil society.

And in 2017, New Zealand recognized the Whanganui River as a legal person - divesting ownership of the ecosystem. The Act created a guardianship system for the River, designating those who are legally responsible to represent the rivers interests in decisions and disputes, and to “promote and protect the health and well-being” of the river. Many ecosystems worldwide, including forests, and mountains, have followed suite.

The Ocean Race Summit in Newport, RI

In May 2020, The Ocean Race Summits brought together over 200 industry leaders, conservationists and experts virtually from The Hague to explore topics related to innovative solutions to restore ocean health. Ocean Rights was introduced at the summit, and you can watch the action lab here. The Ocean Race Summit on September 16th will gather, also virtually, a similar amount of leading voices on ocean health conservation from Newport, RI who will delve further into the Ocean Rights framework, in particular with respect to the High Seas. Here’s the link to watch the live streaming from 10am EDT.

With nearly two-thirds of the Ocean beyond areas of national jurisdiction (collectively called the High Seas), coordinated international action is necessary to protect ocean health. 

In 1982, the United Nations Convention on the Law of the Saw (UNCLOS) established the first international legal order for ocean governance. It is the primary international agreement that regulates the rights and responsibilities of nations regarding their use and treatment of the Ocean. The treaty that resulted from the convention creates guidelines for State activity in international waters, including business, diplomacy, mineral rights, pollution control and fishing rights. However, the legal and policy framework created by UNCLOS is insufficient in dealing with the increasing environmental crisis. 

UNCLOS provides that States have a duty to conserve the marine environment, and can create their own regulations within their 200 nautical mile jurisdiction to do so. But we know that there is not a distinct border between a State’s territory and international waters. Ecosystems are fluid. What happens in one ecosystem spills over into others. So how can we ensure that the interconnectedness of ecosystems is taken into account properly? We also know that there is no clear definition of what is a ‘healthy Ocean’ and therefore at what level a States “duty” is fulfilled. Can we better define “healthy” and ensure conservation is effective and long-term?

Ocean Rights may be the missing link. Ocean Rights enables a shift from an anthropocentric approach, where human objectives are prioritized and decisions focus on human benefit and utility - to an ecocentric approach, where we place humans as within and a part of the larger Earth system. This could mean creating a guardianship model for the Ocean as they did in New Zealand, or recognizing the Ocean has rights as they did in Ecuador. There are many approaches we could take to transform our relationship with the Ocean in a way that allows both humans and natural communities to thrive.

Join environmental lawyers, policy experts, activists, advocates and sailors September 16th to discuss ‘Who Speaks for the Ocean?’ We will delve into how can we ensure the Oceans’ interests and needs are a priority in decisionmaking, nationally and internationally? How might this look like in practice?

Great progress can be made when we have the collective will to do so. Business as usual is destroying the Ocean and we must transform our relationship with the Ocean in order to ensure a sustainable future for all. 

Participation in the Summit is primarily by invitation, but most of the broadcast (the 5 plenary sessions) will be streamed live for public viewing on www.theoceanrace.com. Watch on the livestream - September 16 – 10am-1pm EDT/1600-1900 CEST - Here.

About the author: Michelle Bender is the Ocean Campaigns Director at Earth Law Center (ELC) www.earthlawcenter.org, spearheading an innovative and paradigm-shifting solution to our ocean management challenges. She serves on the executive committee of the Global Alliance for the Rights of Nature; and is a member of the IUCN's World Commission on Environmental Law. Michelle graduated Summa Cum Laude from Vermont Law School, where she earned a Master’s in Environmental Law and Policy and holds a B.S. in Biology with a Marine Emphasis from Western Washington University.