Part one included the Torrey Canyon disaster, harmony with nature and protections for mako sharks, with hints that they are all connected by something specific, something important. Something to do with rights and liability…
Time to get back to the shipwreck. Or shipwrecks, plural, because the Torrey Canyon became linked to another incident 45 years later.
When the Westerhaven, a Dutch container ship heading south out of Belize City smashed into a part of the Belize Barrier Reef– a UNESCO World Heritage Site– near Southern Long Caye (pronounced “Key”) in January of 2009, as you might expect it caused a lot of damage, or as lawyers for the prosecution began to put it– injury– not least because the grounding occurred inside the Caye Glory Spawning Site Marine Reserve.
The court of appeals ruling details a process that included a conflicting variety of assessments regarding how much of the reef had been affected, how damages should be calculated, what the process of restoration should be, and how much it was likely to cost. Attempts to put a dollar figure on the damage ranged to over US$26 million. But the arguments brought by the lawyers on each side also brought in wider issues; issues to do with liability.
Liability is the mechanism by which a guilty party is held accountable for any damage they have caused. It is common for liability to be limited in all kinds of situations. This might not seem very just, but it is done for practical reasons. There are some activities– such as shipping– where the potential costs of any damage are so high that if you didn’t have something limiting liability far fewer people would engage in the activity. E.g. if you want to encourage trade, you limit the liability for accidents involving ships.
But, perhaps not all ships in all circumstances, and this is what connected the Westerhaven with the Torrey Canyon in the minds of lawyers on both sides of the trial in Belize.
In the original hearing regarding the Westerhaven the lawyers acting for the shipping company argued that under international treaty accidental damage to property caused in cases like this was strictly limited. Lawyers acting for the Government of Belize said at first that the reef was the property of the state, but changed their strategy early on, contending that the reef was a living thing with many stakeholders and was not in fact ownable as-such. Testimony from key witnesses for the prosecution sought to establish that the “living reef ecosystem and the services it provides are not the property of anyone”. The judge ruled for the Government of Belize and specified that the shipping company be sent a bill for just over 11 and-a-half million Belize Dollars, (about US$5.7 million using current exchange rates) to go to restoration projects either at the site of the accident or elsewhere on the reef.
The shipping company appealed and lawyers on both sides dug deep into the treaty limiting liability. International law does specify a situation where limited liability does not apply– oil transportation. The effects of the Torrey Canyon accident affected many things including liability in the case of accidents involving oil tankers. Under the terms of another convention called the International Convention on Civil Liability for Oil Pollution Damage oil spills are specifically exempt from limitation. In most places and in most circumstances, if your oil tanker runs aground due to negligence and you spill oil, the damage is on you. The lawyer for the shipping company argued that the reef was provably the property of the government, and that even if it wasn’t, the limitation of liability should still apply, suggesting that the existence of specific rules for oil tankers showed that environmental damage was top of mind when the most recent version of the convention on liability of shipping in general had been created, and implying that if the international community wanted to exempt other kinds of accidents that cause environmental damage they would have done so.
The lawyer for the government reemphasized the complex living nature of the reef in support of the original ruling that it could not be called property, and insisted that injury’ was a more appropriate term than ‘damage’. Further, she contended that the lack of an exemption for oil tankers in the latest version of the general convention on liability– signed in 1976, after the Torrey Canyon disaster– meant that the framers had steered away from the issue of environmental damage entirely, and that the Westerhaven accident represented a new kind of instance of environmental damage from shipping that should be treated differently.
Thats the way it is in law. One case connects to another. Like ships crashing in the night.
It was a brave attempt by the prosecutors but they didn’t have the right tools. If the reef belongs to the government then it is property and any damage to it is subject to limitation of liability appropriate to property of any kind. If the reef isn’t property then what is it? Plus, strict liability can be applied in the case of oil tankers but not anything else.
In the end the appeal was successful. The total amount of damages was upheld but the reef was judged to be property under applicable law and the shipping company’s liability was reduced significantly. But the case does illustrate some things.
There is precedent for making sure that the polluter pays the bill. Legislation created In the toxic wake of the Torrey Canyon proves that it can be written into law if public outrage its strong enough. You will say that we should be shipping less oil, which is true, but my point is that there is precedent for expecting the polluter to pay without pre-defined limits in at least one kind of situation. Further, the Westerhaven case highlights the need to be able to apply the principal more generally. The world is changing and so are our priorities. Limits on liability that used to make sense might not anymore.
It also illustrates the potential for redefining our relationship with nature, not just in our psyche but in law.
Next: Ecuador.
In 2011 the construction of the road from the town of Vilcabamba in Southern Ecuador, along the Vilcabamba River to Quinara, had been going for 3 years without an environmental impact assessment. News reports at the time spoke of excessive dumping of rocks and excavation materials into the river. The result? Water flow had increased threefold, and flooding disfigured surrounding areas, affecting habitats and everything that lived there. Concerned locals stepped forward and lawyers brought a constitutional injunction in favour of nature itself and the river in particular.
They could do this because Ecuador had, in a historic move, enshrined the concept of the Rights of Nature in their constitution. The Rights of Nature hold that since everything in the biosphere is necessary to the integrity of the whole, all of nature and everything that is naturally occurring deserves similar legal protection to that enjoyed by people. It is actually not that strange a concept. Anyone familiar with corporate law will know that this is effectively what we do when we create a corporation (from ‘corpus’ meaning body)– corporations are persons in the eyes of the law, so why not a river? Or an ocean? Currently while human rights to a healthy environment are recognized, along with other human rights, nature itself has no legal standing– the rights of nature idea is to give it one. It also does something very important and very clever– it simplifies the conservation versus sustainable use dilemma and provides a single defining view that can be applied to everything that comes after it.
Read any amount of international agreement documentation and it can seem that much of the intent is self-contradicting. Nature and conservation on the one hand, slash and burn on the other– both supported by human rights of various kinds. Put rights of nature at the top, refer to it in every meeting, every committee, and maybe we could get some internal consistency going.
The Rights of Nature idea has it’s origins in the United States and an article in the Southern California Law Review entitled “Should Trees Have Standing– Towards legal rights for natural objects?”, and work by the Community Environmental Legal defence Fund (CELDF) to assist communities in Pennsylvania and elsewhere in the US with effective conservation legislation. CELDF assisted Ecuador with its constitution. The text is inspiring stuff. Here’s an example:
“Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.
All persons, communities, peoples and nations can call upon public authorities to enforce the rights of nature. To enforce and interpret these rights, the principles set forth in the Constitution shall be observed, as appropriate.
The State shall give incentives to natural persons and legal entities and to communities to protect nature and to promote respect for all the elements comprising an ecosystem.”
The human plaintiffs in the Vilcabmba case– Richard Frederick Wheeler and Eleanor Geer Huddle– were able to do so as advocates for and guardians of the natural world, a right afforded to anyone under the constitution. Frederick Wheeler and Geer Huddle went on to found the Global Alliance for the Rights of Nature (GARN).
In stark contrast to the outcome of the Westerhaven case, the courts in Ecuador found for the river in the first ever successful prosecution under the rights of nature principle. Since 1972, 88 countries have included rights to a healthy environment in their constitution. 65 others have adopted amendments that include environmental provisions of some kind. Boliva passed the Law of The Rights of Mother Earth in 2010, the text of which refers directly to the cultural heritage of the country’s indigenous peoples stating “Mother Earth is considered sacred in the worldview of indigenous peoples and nations.” New Zealand has granted rights of personhood to the Te Urewera rainforest and the Whanganui River.
GARN, including one of its board members– Michelle Bender of The Earth Law Center (ELC)– have been working on ways to include the rights of nature principle usefully in the new treaty for the high seas. Its a brilliant move and an enticing prospect– the draft version of the treaty (I’ve seen it) has plenty of good intentions but is full of holes and suffers from the same dilution of purpose that effects everything that includes “biodiversity” and “sustainable use” in the same sentence.
Michelle was kind enough to answer some of my questions and send me some of the draft documentation that the ELC are planning to submit to the conference including suggested treaty text.
Her comments regarding the term “sustainable use” were among the most interesting. Her position is nuanced. In her view while there is “nothing wrong with conserving species for the sake of supporting human needs” the term sustainable use has “not yet lived up to the ideal [embodied in] in the concept”. Her take is that sustainable use fails to perform the function that it was supposed to perform because it is still essentially anthropocentric; It fails to puts humans into the ecosystem and as a result does both a disservice.
She told me that indigenous rights and the rights of nature principle go hand-in-hand, while explaining that in her experience “’Rights’ is very much a Western worldview and term”, and that for many the idea that rights are required in order to “recognize that nature is the source of life and an entity that should be respected” is something of an anathema. She explained to me that “In general the work of GARN supports and focuses on indigenous rights”.
She recognizes the polluter pays principle as “an implementing standard or regulatory mechanism for the Rights of Nature”, and told me that “It is necessary to have those who pollute and cause harm to the ecosystem pay for damage caused and subsequent restoration.” And she thinks it has some effect in making potential polluters more proactive in preventing pollution before it occurs. Further, she sees that it links to a more subtle concept– that nature has a right to restoration that can be codified and enforced in a broad range of circumstances. She points out that all of this doesn’t discount reparations to people whose human, economic and culture interests have been hit.
The key, of course is that the Rights of Nature be put into law in more places. The prosecution in Ecuador was only possible because of the new constitution brought into force a few years previously.
I can’t go into the content of the ELC’s suggested text for the treaty for Biodiversity in Areas Beyond National Jurisdiction, but it is amazing, and reading it, in a time when the news cycle bombards us with disturbing images of environmental destruction on a daily basis, made me feel incredibly optimistic about the possibilities for these ideas as we try to steer everything in a better direction.
The approach, in short is to make Rights of Nature a governing principle of the treaty. With the changes the document is transformed into one that is far less ambiguous and has a much more clearly defined direction. It would also give real teeth to anyone seeking to protect the ocean beyond national waters. Delegates are working on the next version of the draft text as I post this– so far there is no sign that they are able to embrace the work of the Earth Law Center. I remain hopeful for the possibility of its inclusion in later versions and in other measures to protect the living world.
The rights of nature principle, with its parallels in human rights and alignments to a more ancient worldview deeply rooted in nature, provides clarity and coherence where to this point we have had only confusion. It positions humankind unequivocally in the role of guardian, friend and equal of the natural world, and if you think that’s soft-minded contemplate the consequences we face for failing to do that, for failing to embrace strategies that have been shown to work when those that currently prevail have brought us to the brink of destruction.
Couple rights of nature with other mechanisms such as the polluter pays principle, the inclusion of indigenous voices and biomass targets and we might actually get somewhere. And of course Rights of Nature apply more generally as a mindset, it’s not just for lawyers. Done right, it is how harmony with nature becomes established as a structural and functional component of civil society around the world.
Rights of Nature is a powerful idea and a powerful reason for optimism that methods can be found to get everyone, practically speaking, on the right side of history. Sealives is focused on the ocean, but pick your conservation issue of choice and Rights of Nature likely has an application.
In part one of this story I mentioned that shark species in urgent need of protection had made it through the voting process to be included in Appendix II of the Convention for International Trade in Endangered Species (CITES), a move that would grant protections according to their population levels. The latest draft of the convention was signed-off in total by the convention on August 28th, confirming their inclusion. Stronger protections would have been better, but this represents an extremely positive move nevertheless.
