Q&A with Dr. Anna von Rebay, CEO and Founder of Ocean Vision Legal and Michelle Bender, Legal Counsel and Head of Ocean Rights
| While many investors are aware of the blue economy, the concept of ocean rights might not be as familiar to many. Could you provide more details about it?
Ocean Rights is born out of the emerging Rights of Nature movement but with specificity to the Ocean. Michelle Bender, Legal Counsel at Ocean Vision Legal, created this framework in 2017 and is leading the development of its legal thought. Ocean Rights is the recognition of the Ocean as a living entity with inherent rights and intrinsic value, and the human responsibility to steward the Ocean on behalf of present and future generations of all life on the planet. All life, including humanity, is inextricably linked with the health, integrity and functioning of the Ocean.
We see that the next decade will involve an increased wave of Ocean Litigation to answer the critical questions surrounding State obligations to protect and preserve the marine environment. And we aim to be an initiator.
Rights of Nature is an ethical, relational and legal framework, as well as a growing movement, where Nature is recognized as a legal entity with inherent rights and intrinsic values. Rights of Nature also affirms that humans have responsibilities to steward Nature in a manner consistent with our interconnected relationship. The impact of RoN laws are measurable; for example, prohibiting mining in the Los Cedros Cloud forest and preventing infrastructure development that would violate the rights of mangroves in Ecuador. Over 250 laws, policies and judicial decisions exist in approximately 40 countries that embody ‘Rights of Nature’, but less than 5% are specific to or include reference to the Ocean, its ecosystems or species.
We are addressing this gap!
Laws are created by societies based on their ethical values – vise versa, laws can fundamentally reshape the underpinning values and principles that guide societies and decision makers. In this way, values are important drivers of policy and economic activity and they must be addressed, and transformed, in order to branch away from business as usual and the status quo. We must collectively shift away from valuing and treating the Ocean as a resource with value primarily derived from human utility and benefit, while respecting and amplifying Indigenous and coastal communities‘ worldviews and knowledge. Acknowledging the Ocean as a living entity with inherent rights and intrinsic value, or Ocean Rights, is one such framework, and necessary tool in order to achieve the paradigm shift we need.
| According to your website, Ocean Vision Legal is the first law firm worldwide entirely specializing in Ocean Protection and its interfaces with climate change and human rights. Could you please provide more details about your work and mission?
Our mission is to save the Ocean through law – we do so by holding State actors accountable for existing marine protection obligations (Ocean Litigation) and by advocating new laws that recognise the inherent value of Nature (Rights of Nature, Ocean Rights, Ecocide).
The movement of Climate Litigation, for example, only emerged very recently. When it started only a few years ago, Climate Litigation started blowing around the world like a fresh wind that motivated people globally: young people started going on the street and suing their governments; old people sue their governments for not doing enough to mitigate carbon emissions. People started feeling like having a seat at the table that was usually occupied by politicians. Suing a State suddenly became something considered possible. With the growing awareness of how harmful human activities are for the Ocean – with the millions of tons that we are taking out of it and the millions of tons of trash that we are putting into it – we wondered why do we not have that for the Ocean yet?
OVL’s mission thus is to start a global wave of Ocean Litigation to dramatically change the effectiveness of marine protection by judicially enforcing the manifold obligations of States that are already there. Dr Anna von Rebay wrote her whole PhD on the Obligation of States to Designate MPAs, evidencing that this obligation already exists in the current legal framework (Ocean Litigation), (von Rebay, The Designation of Marine Protected Areas: A legal Obligation, Springer Nature 2023).
At the same time, many of the existing laws, such as the UN Fish Stock Agreement, manage human behaviour in the sea with a view on fish as a resource – “Fish Stock”. If we want to achieve a turning point of human interaction with the Ocean, this requires a comprehensive and all encompassing shift in mindset of people, actors, policies and laws on all levels. We thus strongly advocate and work on the acknowledgement that the Ocean, in fact Nature as a whole, has its own intrinsic values as an entity of rights and is not just a resource for humans (Ocean Rights).
Investment in activities that cause severe and irreversible harm to the Ocean, activities that are not ecologically sustainable or allow the Ocean to regenerate itself and maintain it’s life supporting cycles and functions, or that have externalities of human and environmental health that are not included in their costs, will likely experience reputational and stockholder risks.
| What risks and opportunities should financial institutions and investors be aware of in terms of ocean rights and litigation?
The risks for Ocean Rights and litigation are very much in line with the risks that are becoming apparent in the environmental movements generally, such as climate change and a green and just transition. And that being a shift in human and consumer behaviour as well as policy change. Investment in activities that cause severe and irreversible harm to the Ocean, activities that are not ecologically sustainable or allow the Ocean to regenerate itself and maintain it’s life supporting cycles and functions, or that have externalities of human and environmental health that are not included in their costs, will likely experience reputational and stockholder risks. This was recently seen with stock reduction of The Metals Company due to growing concerns of deep-seabed mining.
With both, changes will ultimately come with how humanity relates to and uses the Ocean, which will require more conscious, holistic and integrated decision making. Though this will lead to decreasing or ceasing certain amounts of activities, this also presents an opportunity for innovation and creates space for alternatives to flourish. Financial institutions and investors can play a key role in financing alternatives that contribute to job creation and education in new fields. For example, instead of contributing to harmful fishing subsidies, folks can turn their investments into the creation and monitoring of marine protected areas. For example, the new ‘Debt-for-nature swap’ is helping developing countries who are protecting vital ecosystems.
| According to the Potsdam Institute for Climate Impact Research, the planetary crisis cannot be properly addressed by current environmental law and requires a redefinition of the global commons. How do you assess the situation in this regard, and do you believe the EU Environmental Crime Directive could serve as a game-changing stepping stone?
We do think that there are very strong marine protection obligations in the existing law. We do think that what is missing is their judicial enforcement. We could, in fact, create as many new laws as we want, if we don’t start to judicially enforce them, they will remain without effect. At the same time, what we wish for new laws, is that they start recognising that Nature is not a resource – and has intrinsic values regardless of human benefit and utility. And with this combination of enforcing existing laws and creating new laws, we think we can contribute to effective marine protection.
A prevalent and outdated worldview created our current laws. For the Ocean, the view of the Ocean, and in particular the High Seas or areas beyond national boundaries, as common ‘property’ or ‘open access’ and free for all, contributes to the ‘tragedy of the commons.’ This leads to incentives to keep fishing and maximise profits, even if science lends support to the need to enforce stricter regulations or quotas on fishing. This is one aspect Ocean Rights seeks to address. Instead of a resource that is owned by all, the Ocean is recognised as a living entity, our source of life, and thus not the property of anyone. States and actors would have a responsibility to respect and protect the interests of the Ocean, just as they do with other States.
We could, in fact, create as many new laws as we want, if we don’t start to judicially enforce them, they will remain without effect. At the same time, what we wish for new laws, is that they start recognising that Nature is not a resource – and has intrinsic values regardless of human benefit and utility.
The recognition of Ecocide is an important element of this, which we work on as part of our Ocean Rights (and Litigation) branch. For example, the violation of our Right to Life is being prevented by the acknowledgement of the crime of murder, the violation of Ocean Rights can be prevented by accepting that harming the environment is a crime. We thus think that Ecocide is an important element in effective marine protection. You can see this in practice in a shark fishing case in Ecuador that we share in our blog here.
| What is your outlook regarding ocean rights and litigation, taking into account the current challenges and developments such as increased stakeholder engagement? Do you anticipate that non-human legal personhood, as prominently advocated by Ralph Chami from the IMF in the case of whales, will be a significant part of the solution?
Yes.
When we look at the development of law (and the Law of the Sea), it is very apparent that in the past the driving factor for the development of laws was the economic imperative: the Exclusive Economic Zone, for example, is a zone between the Territorial Sea and the High Sea, in which the coastal state has single sovereign rights for exploitation. The acknowledgement of this Exclusive “Economic” Zone was necessary, to get the State parties’ consent to UNCLOS, as they would still be allowed to exploit the resources in this area. Keeping this in mind, how can we make marine protection effective?
We see that the next decade will involve an increased wave of Ocean Litigation to answer the critical questions surrounding State obligations to protect and preserve the marine environment (UNCLOS Art. 192). And we aim to be an initiator. This has already begun, with simultaneous Advisory Opinions being requested from the InterAmerican Court of Human Rights, the International Court of Justice and the International Tribunal for the Law of the Sea (ITLOS) regarding State obligations in light of climate change. Particularly, for the COSIS-Advisory Opinion proceeding, the ITLOS powerfully emphasised its readiness to accept Advisory Opinions and its role to develop the obligation of States to protect the marine environment by unprecedentedly scheduling the oral hearings only 10 months after the submission of the request in December 2022.
International recognition of the Ocean’s rights would encompass all oceanic elements, its ecosystems and species. Two critical questions we face include: What does Ocean Rights mean in practice and how it can be applied in regional and international spaces (not just national law)? The case of whales is something we are working on in coordination with Ralph’s team at Blue Green Future. Legal Personhood for whales is a tangible starting point, and in order to respect and ensure the rights of whales, their habitat must be healthy and they must be able to maintain their role in ecosystem functioning. So, though the focus may be on a particular species, the impact of such designation extends to the ecosystem as a whole. Additionally, this project also centres around respecting Indigenous worldviews and rights, as the great whales are considered ancestors and kin.
This will serve as a pilot to start to answer those questions and that can then be applied for other marine flora and fauna and in other regions of the world. Additionally, we are collaborating on a forthcoming white paper led by Ralph Chami, which will answer if and how we can utilise legal and market frameworks for whales to ensure their protection. For example, the IMF study estimates the living value of a great whale as $2 million, largely in relation to the carbon market. If legal personality is conferred onto whales, what happens if a vessel strikes a whale? When we acknowledge Ralph Chami’s approach of using market analysing tools to provide how much damage the death of a whale would cause to the Ocean and environment, the operator of a vessel or the flag State could be held accountable to pay damages in this amount. This payment could directly flow into a conservation fund for whales. At the same time, a vessel sailing in this area might be much more inclined to use deterrent pingers to prevent whale strikes or States would be more inclined to implement regulations requiring a decreased shipping speed in the migratory corridors of whales. Insurances might be enticed to only insure vessels that use pingers and decrease their speeds. This beautifully shows how also from a conservation perspective, we can smartly combine economic evaluations with new laws to really give marine protection effect.
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