Nature and the Rule of Law (part two)
A two-part series on environmental law
The fresh water / ocean continuum is the life’s blood of the planet, of our communal connection, and of our bodies in sickness and health. Without that resource we are literally nothing. If we can be protected from catastrophe by the rule of law, we must do everything we can to define it, uphold it, apply it, and live by its determination of parity, equity, and justice.
In last week’s blog we outlined the ways the laws of Nature and civil society entwine. We talked of irrefutable laws on natural process, cause and effect, and the need for a system to protect against abuse, interventions, and functions of greed and indifference to maintain stability and order, comprehensive valuation of ecological services, and the equitable distribution of that value among all peoples of the world and ensuing generations.
The ocean, from mountaintop to abyssal plain, is both symbol and reality of that system — a network of water movements, of associated benefits, of public health, of social harmony, and of cultural traditions that have honored the power of that natural connection for centuries. The fresh water / ocean continuum is the life’s blood of the planet, of our communal connection, and of our bodies in sickness and health. Without that most essential resource, we are literally nothing — and if we can be protected from that catastrophe by the rule of law we must do everything we can to define it, uphold it, apply it, and live by its determination of parity, equity, and justice.
Here are some interesting examples:
First, the United Nations Convention for the Law of the Sea (UNCLOS) in an international agreement ratified by most nations with the exception of a few, primarily the United States, that, with nationalistic arrogance, object to any imposition of such shared standards on its national sovereignty, denying a binding legal commitment even while claiming to honor most of its requirements. This relativist position of picking and choosing among laws to obey or not to obey surely undermines the effect of a global consensus, provides leverage for any other nation to deny this law or that, and declares that the very idea of an international framework for the benefit of all can be subject to the whim of any single national agenda. When you think about addressing the jurisdictional and management problems of the coastal zones, the high seas, and the circumpolar Arctic, you see that this exception is subversive at best, destructive at worst, and not conducive to any further agreements on other environmental challenges that we face in the future.
Second, the United Nations also has numerous intergovernmental agencies that address various specific area of behavior — the Food and Agricultural Organization (FAO); the Intergovernmental Oceanographic Commission (IOC); UNESCO, incorporating policies for education and culture; and the International Maritime Organization (IMO) that generates collective codes for shipping, waste management, or construction and operational standards in the special conditions of polar waters. These organizations gather data, conduct academic studies, convene meetings to build consensus around collective behavior that are translated into best practices and regulations that are generally honored by most nations.
Third, there are various non-governmental organizations with programs or specific mission dedicated to the development of progressive maritime policies and legal innovations. Some specialize in illegal fishing and enforcement outside areas of national jurisdiction, some lobby for legally established protected areas with internal protections to maintain ocean biodiversity, still others advocate for national laws for conduct and protection of natural resources; and still others challenge conventions with big ideas that use the law to transcend the achievements of others.
The Earth Law Center, for example, advocates for governance systems that prevent environmental degradation beyond the point of natural restoration. The Center advocates for legal rights for nature and for local and indigenous voices in environmental decisions. In 2017, it launched The Rights of the Ocean Initiative at the United Nations, with 67 organizations from 32 countries signing on in support. Specific objectives include uniform shared standards for marine protected areas, a definition and index for ocean-centered health, and a High Seas Alliance agreement for biodiversity protect in the deep ocean.
And finally, there is an emerging “international rights-of-nature” movement countering the conventional understanding of nature as property by using concepts of personhood and rights-based approaches to conserve natural resources against the predation of resource exploitation and private profit. In Australia, legislative actions have been taken to preserve the integrity of mountains, forests, rivers, and reefs through established legal protection. And to take this approach one step further, in Ecuador and Bolivia, the national constitutions have been modified to extend the doctrine of “Nature’s rights” to every aspect of the law and its application in the name of social justice.
As we are faced with fundamental threats to the enduring laws of Nature, we are using those laws as if they are our own — not just be applied one flora, one fauna, one ecosystem at a time, but to the coherent, holistic affirmation of what is right for the future, for everyone.
PETER NEILL is founder and director of the World Ocean Observatory and is author of “The Once and Future Ocean: Notes Toward a New Hydraulic Society.” He is also the host of World Ocean Radio, a weekly podcast addressing ocean issues, upon which this blog is inspired.
