Michelle Bender — fighting for the rights of Mother Ocean (Part Three)

Michelle Bender is an environmental law and policy specialist at the international law firm, Ocean Vision Legal.(Photo: Supplied)

By Don Pinnock

20 Aug 2024

From the beginning of time the sea has been the mother of coastal and island communities – and science agrees. All plants, birds, insects, reptiles and mammals had their origins in its deep blue waters. But it’s a mother with no rights which we pollute, kill its creatures, scrape its skin and drill into its bed. Michelle Bender is on a mission to change all that.

Michelle Bender is building a framework to give the ocean legal status, but she’s not working alone. Like pieces of a tapestry slowly coming together, the movement to confer legal personhood on creatures and places is growing.

Read Part One and Part Two

michelle bender ocean rights Michelle Bender is at Ocean Vision Legal. (Photo: Supplied)

Her vision is to confer that right on the saline waters of the entire planet. It’s a daring vision that can take your breath away. If what she started fails, the lives of billions of creatures, including ourselves, will be at risk.

Building on the concept of human rights and rights of nature, she’s working towards the global acceptance of a Declaration of Ocean Rights.

Don Pinnock: Is protection of the oceans a legal issue?

Michelle Bender: We have to talk about rights because of the way our Western system is constructed. It’s a rights-based system. If something is rightless, it is an object, a resource, property or utility. We have to shift how we value and treat nature. Rights is one way to do that.

Don: What started you off on the rights journey?

Michelle: I never intended to be a lawyer. That was actually the last thing on my mind – I wanted to be a marine biologist. I knew I wanted to save the ocean. So that was the path I originally set on.

For postgrad I went to the Vermont Law School and after that interned at the Monterey Bay Aquarium doing ocean work. Then I went to work with the Earth Law Centre on rights of nature, then Ocean Vision Legal. In between, I consulted on sea otter and marine mammal protection in the US.

Don: What’s the focus of Ocean Vision?

Michelle: We look at enforcing existing marine obligations and we push the envelope by drafting and creating new laws and policies that create a new ethic for the human-ocean relationship through rights and nature.

Don: What was the starting point of your ocean vision?

Michelle: I created the Ocean Rights Framework in 2017. I was inspired by the movement in New Zealand that resulted in the Whanganui River being recognised as a legal person. It’s represented by two human guardians who speak on its behalf.

Rivers, national parks and forests were being recognised as subjects of rights, but no one was talking about the ocean. Being my background and passion, I thought, this doesn’t make sense. The ocean is the largest ecosystem on the planet, probably the most important in many ways. So I created the Ocean Rights Framework to try to address that gap.

Don: Were there successes that underpinned your optimism?

Michelle: Absolutely. The idea of legal personhood was and is building, but it’s not a one-size-fits-all. For example, the Santa Monica Sustainability Rights Ordinance focuses on the sustainability of the community but recognises that natural communities, such as marine ecosystems, are subjects of rights. In Panama, a national sea turtle conservation law includes an article that recognises that sea turtles have rights to a healthy environment. Most recently there’s been a call for whale personhood by the Māori of the Pacific.

We’re also seeing ecosystem-specific approaches for rivers and forests and now marine ecosystems. The Mar Menor Lagoon in Spain has been recognised as a legal entity, thanks to a citizen initiative. Additionally, the Rio Dice wave in Brazil has been recognised as a legal entity with rights, though it’s not officially signed yet.

In 2008, Ecuador became the first country in the world to recognise the Rights of Nature in its constitution and the right of its citizens to defend and protect nature. They also use the principle in dubio pro natura: when in doubt, err on the side of nature.

Ultimately, we need international action to recognise the ocean’s rights because it’s a fluid, connected ecosystem. That’s where the momentum is currently going with the Universal Declaration of Ocean Rights.

Don: As I understand it, laws are based on rights and rights are built around being human. If something is rightless, it’s an object, it’s nothing in law. So, to have rights, you have to be human or by extension a corporation. But without national sovereign rights, the high seas are basically lawless.

Michelle: Actually, a non-human entity can be a legal person. Because law is made for persons, legal persons have emerged as a mechanism. That’s how corporations, ships and churches have gained legal personhood – through law. We’ve been looking into the definition and understanding of legal personhood and one thing is clear: it’s not uniform or standard across legal systems because it’s a man-made construct.

There’s really nothing inherent in law that says a non-human being cannot legally be a non-human entity. It’s just a matter of your take on what legal personhood is.

Don: Legality has to be tested in court and a whale or tree can’t litigate. How do you get around that problem?

Michelle: There are different ways it could take form. At the local level, for example, many of the ecosystem-specific approaches come with governance reform and guardianship mechanisms. In these instances, the legislature or government creates a new body with different functions and roles to represent the ecosystem’s interests and values in decision-making affecting its health.

In some instances, we’re seeing specific people appointed for those positions. The Māori are calling for a UN ambassadorship for whales. I’m not sure entirely what that would look like, but there’s some good thinking out there.

Don: A Declaration of Ocean Rights would have to be global. Where would you want it situated?

Michelle: A UN Declaration or something similar. We’re inspired by the UN Declaration on Human Rights and Indigenous Peoples’ Rights. We hope to establish common norms and standards that align with each other – a new ethic for decision-making based on relationality, reciprocity and interconnectedness. These are presently missing. There’s a UN Convention on the Law of the Sea, but it doesn’t contain that aspect of obligation.

Don: The ocean is huge, and the open ocean is out of sight. How would the declaration be policed?

Michelle: Universal declarations are resolutions and therefore not legally binding. However, they set out standards for states to implement. Just like with human rights, it will probably take some time. But we must put the ocean at the centre of governance and ask ourselves: how can we transform our relationship with nature?

Don: What you’re looking for is a planetary paradigm shift in dealing with the ocean.

Michelle: Essentially yes. I do think it’s possible. Of course, it’s one thing to establish protected areas, but another thing to implement, enforce and monitor them. We can learn so much from indigenous culture. Many cultures have a strong relationship with the ocean, it is a source of life for them, an ancestor.

Love, care and respect are embodied in their traditional knowledge, cultural practices and the way they manage their environment. In a way, we’re trying to legalise that approach through rights in a Western legal system. But we have to be careful not to appropriate their knowledge.

In the US, many of the local laws or lawsuits have been led by indigenous people. In Ecuador especially, one of the reasons for the constitutional amendment for the Rights of Nature as an article of the constitution is very much inspired and led by indigenous communities. But the Rights of Nature is a Western concept. Indigenous people don’t need rights of nature because they don’t see themselves as separate from nature.

Don: So you’re hopeful about ocean rights?

Michelle: Ocean Rights and Rights of Nature are tools we have in our toolbox. My thinking is that we can’t solve our problems by using the same system that created them. Rights of Nature offers one pathway. It’s not a solve-all solution by any means. Just like with human rights, it’s going to take time. It’s going to be trial and error.

It’s not perfect everywhere, not even the UN Declaration on Human Rights is. But I do think Ocean Rights is a tool that has promise and power. It’s a way to really respect the different values that exist and let communities and nature itself have a voice. The ocean needs to be given a voice and a seat at the table of rights to be protected. Without it we would never have existed. DM

Michelle Bender is an environmental law and policy specialist at the international law firm, Ocean Vision Legal. She also serves on the Advisory Council for the Global Alliance for the Rights of Nature and is a key facilitator of the Universal Declaration of Ocean Rights initiative.

We are the Ocean and the Ocean is us

Feedback from more than 150 stakeholders, including through workshops facilitated by The Ocean Race, led to the presentation of a framework underpinning Ocean Rights at the UN General Assembly in September 2023. It’s not a draft declaration but serves as the foundation for spearheading dialogue on the need for an ethical human-Ocean relationship. This is a summary.

[1] The Ocean sustains all life on the planet.

All life on Earth, including humanity, depends on the maintenance of and is inextricably linked with the health, integrity and functioning of the ocean.

[2] Humankind is dependent upon a healthy Ocean.

We affirm humankind is one species within Nature.

[3] Rights of Nature can be a catalyst for transforming the human-Ocean relationship.

We bring attention to over 200 laws and policies in nearly 40 countries that have recognized Nature has inherent rights,and that human society has the responsibility to protect and steward Nature.

[4] The Ocean is a living entity, not a resource.

The Ocean is our ancestor and kin, is alive with history, ever evolving and a place of cultural and spiritual value, with authority, life force, identity and intrinsic value.

[5] We aim to enhance Ocean conservation through a collective Ocean ethos.

A universal ethical and values-based foundation can inform and provide consistency to all Ocean related agendas, prioritise restoration and improve the coordination and implementation of our obligation.

[6] Principles underpinning Ocean Rights.

We call upon peoples and governments of the world to broaden the discussion on the need for laws and norms that embrace the Rights of Nature.

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We are the Ocean and the Ocean is us