By Sarah Reiter and Dillon Post
This blog post is the third in a series that we, at the Leadership for the Ecozoic (L4E) Law & Governance Research Group, are writing over the next few months. In this series, we strive to provide a glimpse of a world shaped by the principles of ecological law. The emerging field of ecological law seeks to spur deep social, economic, and legal transformations in order to address the panoply of environmental justice crises plaguing the planet.
Each blog will explore the current research that L4E is conducting with five project teams on case studies across the globe. These include wildlife management in Vermont, the impact of the St. Lawrence Seaway on Kahnawà:ke in Canada, the environmental degradation of the River Ethiope in Nigeria, the impact of High Seas law on marine biodiversity and the proposed Anatópolis mine in Brazil. Each case study will highlight the laws that allowed various development or policy projects around the globe and offer a reimagination of these projects in an ecological law framework.
Our third case study relates to the impact of the multilateral BBNJ treaty currently being negotiated on conservation and sustainable use of marine biodiversity in the high seas. More specifically, using the lens of ecological law we examine two networks of marine protected areas (MPAs) constituted and governed under distinct legal regimes in order to draw lessons learned applicable to the BBNJ treaty. In case you missed it, our blog on the impact of the St. Lawrence Seaway on Kahnawà:ke in Canada can be found here, while the blog on the environmental degradation of the River Ethiope in Ethiopia and current efforts to have the rights of the River recognized can be found here.
What is ecological law?
For those who are not familiar with ecological law, we will provide a brief overview of its fundamental principles. If you wish to learn a little more about ecological law, you can read the first blog in this series.
As expressed in the ELGA Oslo Manifesto, ecological law “is based on ecocentrism, holism, and intra-/intergenerational and interspecies justice.” It is about refocusing our legal systems so that they no longer prioritize the interests of humans over the integrity and health of ecosystems or the interests of non-humans. Planetary boundaries, such as the amount of GHGs humans can safely emit, would provide clear limits on human activity. Intra-/intergenerational justice would also require that our laws impose equity between current governments in the Global North and future generations, Indigenous and racialized communities as well as peoples in the Global South. Finally, ecological law would incorporate interspecies equity into our legal systems—ensuring that the lives, needs and interests of other beings are considered along with those of humans. This recognizes that we share the Earth with a plethora of other species who have just as much of a right to live and thrive here as we do.
Carla Sbert, a scholar of ecological law, has put forward three interconnected principles at the heart of ecological law. First, ecocentrism recognizes the interconnectedness of all beings and their equality. Second, ecological primacy ensures that human activity does not irreparably damage ecology. This entails respecting planetary boundaries, limiting material and energy consumption to respect ecological limits as well as restoring ecosystems. Third, ecological justice demands that intergenerational, intragenerational and interspecies equity be part of our laws.
The BBNJ Treaty
The focus of this case study is the legal mechanisms that will govern MPAs and MPA networks in the high seas. These mechanisms will be found in the BBNJ treaty, which will be an instrument on governing marine biodiversity in areas beyond national jurisdiction. In 2017 the General Assembly adopted resolution 72/249, and negotiations have now been underway for a few years to draft language of the BBNJ treaty. The BBNJ treaty will cover 4 main elements, including marine protected areas under area-based management tools.
Considering that the work of the intergovernmental convention remains ongoing and that there is not a final text of the treaty, the starting point of this case study is analyzing the existing legal frameworks of two MPA networks situated in distinct maritime zones—the Clarion Clipperton Zone (CCZ) located on the seafloor of the abyssal Pacific and the network of MPAs developed within California’s state waters—to distill lessons learned that could be applied to the BBNJ treaty.
Marine Protected Areas
Marine protected areas are underwater seascapes designed to protect key ocean habitats and species by managing activities that threaten their integrity—such as fishing and mining—through spatial and temporal regulation. Networks of MPAs are a grouping of individual MPAs that provide conservation benefits that individual protected areas would not be able to offer. Networks are important because they ensure that marine conservation efforts are synergized to be more comprehensive and effective.
Clarion Clipperton Zone
The Clarion Clipperton Zone is situated in the abyssal Pacific Ocean and is roughly the size of 80% of the territorial United States. This area has deep-sea ecosystems that are important for carbon sequestration, nutrient cycling, and conservation of extensive marine biodiversity. The zone also contains an abundance of polymetallic nodules, which has spurred extensive deep-sea mining exploration.
Under United Nations Convention on the Law of the Sea (UNCLOS), the seabed beyond national jurisdiction is called the Area, and is governed by the International Seabed Authority (ISA) in accordance with the principle of the common heritage of mankind (CHM), which prohibits a state or other entity from claiming a sovereign right to the seabed and upholds the paramount policy that the seabed belongs to everyone—for use, access, and profit. This imposes a difficult mandate on the ISA because it must both ensure the protection of the seabed while also ensuring that it is exploited for the benefit of all. The tension within this mandate is apparent in the ISA’s management of the CCZ where MPAs and deep-sea mining exploration attempt to co-exist.
The first ecological law principle identified by Sbert is ecocentrism which addresses whether the interconnectedness of all members of the Earth Community is recognized and whether human and non-human interests are equally valued.  UNCLOS does not recognize equally human and non-human members of the Earth community in accordance with ecocentrism because, as with most environmental governance, it prioritizes human interest in the use of the seabed. Further, the experience of establishing a network of MPAs in the CCZ demonstrates that deep-sea mining exploration claims are valued over the interconnectedness of all beings, including those living on or above the abyssal Pacific, and not yet discovered, because exploration claims were granted before a scientific basis had been established. The grant of exploration claims for the seabed are for the benefit of mankind, explicitly, and do not provide any further benefit to the other members of the ecosystem. This human centric approach runs counter to ecocentrism, because human interests are given far greater value than the interests of non-humans.
The second ecological principle is ecological primacy which ensures that human social and economic behaviors are ecologically bound. The current governing of the CCZ is incongruent with ecological primacy. The dual mandate of UNCLOS—to protect and preserve the marine environment from pollution—while also exploiting the deep sea for mineral resources, is not at odds with itself, but fails to create a legal arrangement that can ensure material and energy use is within ecological limits. The mandate also does not restore and maintain ecological integrity. Instead, as exploration is allowed, the integrity of the ecosystem is inherently disturbed. For example, the very act of disturbing the seafloor releases carbon sequestered in place. For the dual mandate to comply with ecological primacy, human development must be pursued in a fashion that does not irreversibly impair ecological integrity.
Finally, the third principle of ecological justice, which ensures equitable access to the Earth’s sustaining capacity for present and future generations of humans and other life forms, is not furthered by the UNCLOS. The ISA permits claims to explore and exploit the seabed for mineral resources in the area. This is fundamentally at odds with the scientific information, which calls for a moratorium on deep-sea mining in accordance with the precautionary principle; a sentiment recently shared by the International Union for Conservation. What we currently know about deep-sea mining indicates that extensive recovery periods are required and that mining releases carbon stored at the bottom of the ocean. The network of MPAs under consideration, in tandem with exploitation of the seafloor, fails to ensure equitable access to the earth’s sustaining capacity for present and future human and non-human members of the earth community. While the CHM principle does reflect the equitable access component, the act of deep-sea mining cannot ensure equitable distribution of environmental harm among both present proximal nations and future generations.
Marine Protected Areas Off of Coastal California
The second example of a MPA network that the case study examines is the network established off the coast of California. In 1999, California passed the Marine Life Protection Act (MLPA) requiring the State to create a network of MPAs that would increase the coherence and efficiency of the State’s conservation efforts. Five years later, and after two unsuccessful attempts to implement the MLPA, California created the MLPA Initiative through a Private-Public Partnership that had 6 identified goals: 1) conservation of biodiversity and the health of marine ecosystems; 2) recovery of wildlife; 3) improvements to recreational and educational opportunities consistent with biodiversity conservation; 4) protection of representative and unique habitats for their intrinsic value; 5) ensuring MPAs are managed, to the extent possible as a network; and 6) ensuring that MPAs have defined objectives, effective management and enforcement, and are designed on sound science.
Under the first principle of ecological law, ecocentrism, the Californian initiative falls short. The state law does not recognize and value equally human and non-human members of the Earth community, as demonstrated, for example, by the omission of both traditional ecological knowledge and sacred, ceremonial ocean and coastal grounds. The failure to recognize and respect the value of all beings and the interconnectedness among them, and to promote the interests of both human and non-human members of the Earth community equally was an oversight in the design of the original legal arrangement. The law failed to differentiate the traditional and sacred marine activities practiced by the coastal Indigenous communities from purely recreational activities. After extensive advocacy from Tribal peoples (recognized and unrecognized under federal law) in California, this shortcoming was addressed and Indigenous interests are now represented in the decision-making about protected areas. However, if Tribes, as humans, struggled to claim their voice in promoting their interests, then, non-human members of the Earth community were also unequally represented, in part because of the failure to integrate traditional ecological knowledge from the outset in protected area selection.
The state law upholds ecological primacy through the ecological design principles laid out in the process, which ensure that the social and economic behaviour and systems are ecologically bound, respecting Planetary Boundaries. The primary goal of the law is to constrain material and energy use within ecological limits and restore and maintain ecological integrity of California’s coasts and ocean.
Finally, the law falls short on the ecological law principle of ecological justice because it does not ensure equitable access to the Earth’s sustaining capacity for present and future generations of humans and other life forms and systems. The legal arrangement failed to equitably distribute environmental harms among present generations when the process overlooked the sacred practices and grounds of the Kashia Pomo Tribe. Though this was remedied once identified, there are limits to the protection mandated by the legal process, and the network itself. Furthermore, representing a little over 16% of the waters of California, the network is still not expansive enough to ensure equitable distribution of environmental harms among future generations, in particular due to the threat multiplier that is a changing climate, and the associated impacts on the ocean (e.g., ocean warming, deoxygenation, ocean acidification).
Though both of these examples of MPA networks are governed by legal mechanisms that are distinct from those which will apply to the high sea, the analysis of these legal frameworks in the context of ecological law illuminates several lessons learned, including the unworkability of dual mandates and the importance of meaningful stakeholder engagement, complete with inclusion of traditional ecological knowledge. The next step in this case study is to apply the lessons learned from the deconstruction of these two examples of MPA networks to Part II of the BBNJ treaty that is currently being drafted.
Further Readings on Ecological Law:
Kirsten Anker et al, eds. From Environmental to Ecological Law (Routledge, 2020).
Carla Sbert, The Lens of Ecological Law: A look at mining (Edward Elgar Publishing, 2020).
Klaus Bosselmann & Prue Taylor, Ecological Approaches to Environmental Law (Edward Elgar Publishing, 2017).
Geoffrey Garver, Ecological Law and the Planetary Crisis A Legal Guide for Harmony on Earth (1st ed, Routledge, 2021).
“From Environmental to Ecological Law: The future lies ahead” (2019) 43:3 Vt L Rev 1.
 Geoffrey Garver, “The rule of ecological law: The legal complement to degrowth economics” (2013) 5:1 Sustainability 316.
 Carla Sbert, “El Salvador's Mining Ban and Mining in Ontario's Ring of Fire from the Lens of Ecological Law” (2019) 43:3 Vt L Rev 517.
 Lisa M Wedding, Sarah Reiter et al, “Managing mining of the deep seabed” (2015) 349: 6244 SCIENCE 144.
 Curtis G Berkey & Scott W Williams, “California Indian Tribes and the Marine Life Protection Act: The Seeds of a Partnership to Preserve Natural Resources” (2019) 43 Am Indian L Rev 307.
 Mach E Mach et al, “Assessment and management of cumulative impacts in California's network of marine protected areas” (2017) 137:1 Ocean & Coastal Management 11.