The Right to Life for Southern Resident Killer Whales?

Introduction

The Southern Resident killer whale (Orcinus orca) is the smallest of four resident, extant, orca populations in the North Pacific. It can be found in the Salish Sea, south of Vancouver Island, crossing the border between the United States and Canada. Due to lethal and live takes in the 1960s, the population dropped to merely 71 individuals. Through concerted conservation efforts, however, by the mid-1990s it had increased again to 98 animals.

Unfortunately, this positive development is now reversing again and last counts in June 2019 showed that a mere 76 Southern Resident orcas can now be found – the lowest number in 34 years. Three primary reasons have led to this decline: (1) decreasing salmon spawning in the species’ habitat; (2) noise pollution and other disruption caused by marine traffic; and (3) contamination and pollution such as DDT, pesticides or chlorine.

Around 8 million people live around the Salish Sea, including several First Nations and native American peoples, each of whom have made different use of the waters and marine resources. While Southern Resident orcas are listed under the Endangered Species Act (United States) as well as the Species At Risk Act (Canada), this legal framework appears to be insufficient to reconcile the different interests of marine utilisation and the effective conservation of the orcas.

Conservation and the Legal Standing of the Environment

Different new ways to boost or improve conservation efforts have been developed over the last few years. Some of these new ways I have also been dealing with on this blog (1; 2; 3; 4). Let us now consider what has been put forward by the Earth Law Centre (ELC) along with other NGOs, communities and indigenous peoples as a means to protect Southern Resident orcas: the granting of the right to life to these whales (click here to access the petition). In other words, Southern Resident orcas would have to be protected from physical harm in the same manner as humans. While this may at first sight appear revolutionary, the idea is far from new and, in this context, has been developed by integrating the views of a large number of stakeholders.

Environmental rights are integral to international environmental governance and oftentimes link human rights with environmental protection (i.e. the right to a clean and healthy environment). While this may be so, ‘the environment’ has always been linked to the human and human rights without having been recognised as a rights holder itself. This means that ‘the environment’ (or parts thereof) is not a legal person and does not have rights as such. In his seminal book Should Trees Have Standing, Christopher Stone was, already in 1972, the first to question this status quo (Stone, 1972/2010). Almost 20 years later, this idea was advanced in the context of whales by Anthony D’Amato and Sudhir Chopra in their iconic piece ‘Whales: Their Emerging Right to Life’ (D’Amato & Chopra, 1991). In a nutshell, the authors argue that states have treated whales in a way that inevitably requires them to be entitled to a right to life.

While these treatises can be – and have been – criticised on many levels, their central claim of elements of nature having ‘the right to have rights’, to quote Hannah Arendt, has now become a rather new legal possibility to ensure environmental protection.

The Natural Environment as a Legal Person

The principle of ‘legal personality’ is currently limited to natural and legal persons, meaning humans as well as e.g. businesses . The natural environment is therefore not considered in this practice. In 2006, however, the community of Tamaqua Borough in Pennsylvania was the first of many other communities that would recognise the rights of nature within community territory.

In 2008, Ecuador picked up on that idea and included a chapter on the Rights of Nature in its new constitution. Instead of linking the rights of nature to human rights, they are inherent. Nature thus has “the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes” (Republic of Ecuador, 2008, art. 71).

Only two years later, Bolivia followed suit and adopted the Law of the Rights of Mother Earth in which ‘Mother Earth’ was afforded the right to life, diversity of life, water, clean air, equilibrium, restoration and pollution-free living (Plurinational State of Bolivia, 2010, art. 7). This law was superseded in 2012 by the Framework Law of Mother Earth and Integral Development for Living Well, which establishes institutions to oversee its implementation. In other words, with this law, Bolivia aims to enforce the rights of the natural environment as a legal person within Bolivian borders.

As the first Western state to adopt the principle of legal personality for the natural environment, in 2017 New Zealand granted Whanganui river legal personhood, which means that anything that alters its status needs to find its approval before a court. This means that the river’s representatives, in this case adjacent Maōri communities, must agree to anything that impacts the river. Whether or not this practice translates into effective long-term conservation remains to be seen. However, the case of Whanganui river has also found its way into other countries: in India, the Ganges and Yamuna rivers have been recognised as having legal personality.

It seems, therefore, that granting either the national natural environment or parts of the natural environment legal personhood may become a new practice to ensure effective conservation.

Whales as Legal Persons?

Following the precedents that were set by Ecuador, Bolivia, New Zealand and India, the aim to grant Southern Resident orcas legal personhood does not appear to be absurd. When considering this approach, several issues must be considered, however. First of all, the granting of legal personhood must occur both in the United States and in Canada, otherwise the defence of their rights would be only possible in one country, yet not in the other, undermining the entire idea. After all, their habitat comprises the border region between the two countries, which requires equal treatment and consideration of their rights in order to ensure rights-based protection.

The status of whales vis-à-vis the rights of humans has been a matter of utmost controversy – at least since the adoption of the moratorium on commercial whaling by the International Whaling Commission (IWC) in 1982. States such as Japan, Norway, Iceland and others have for decade sought to overturn this moratorium since they consider whales as a resource. By championing the principle of sustainable use, this has caused the deep-running rift within the IWC over the way whales are to be protected (and/or used). Since the IWC has not lifted the moratorium, Japan announced its withdrawal from the IWC in December 2019.

This shows that the right to life for all cetaceans (whales), which would be closely linked to the granting of a legal personality, could not be considered a universally accepted possibility as a conservation measure. First of all, the dissent over the status of whales within the IWC refers only to baleen whales and one toothed whale (sperm whale). Small cetaceans such as dolphins, orcas, pilot whales etc. are not subject to any international agreement and are hunted in different countries all over the world. This means that it would have to be a UN-led initiative to grant legal personality to whales, for instance under the Convention on Biological Diversity (CBD). Yet, since under the CBD environmental principles – and not direct management issues – are established by consensus, this appears unrealistic.

Second, since there are severe differences in the way whales are perceived, it is unlikely that states would in any way be able to agree to grant legal personhood to whales under any global framework. What is more realistic is that, such as in the case of Southern Resident orcas, uni- or bilateral agreements are concluded that grant legal personality to extant whale species. This would mean that these species reside within the Exclusive Economic Zone of one or more states exclusively, do not migrate into the high seas and thus are not part of the global commons. The vaquita (Phocoena sinus), which occurs only within Mexican waters in Baja California, and which is one, if not the, most endangered cetacean species on Earth, might in fact benefit from the granting of legal personhood by the Mexican government.

Conclusion

A legal personality for all cetacean species is difficult to envision on a global scale since different countries have different views on whether or not whales can be used and to what degree they are to be protected. Yet, the very idea of legal personhood for whales cannot be dismissed as unrealistic, provided it refers to specific species or subpopulations that occur within one or several states’ waters. These states, taking into account all active stakeholders, can agree to provide a whale species with specific rights that the species itself – via its legal representation – is able to invoke before a court of law.

References

D’Amato, A and Chopra, S (1991) Whales: Their Emerging Right to Life, 85 American Journal of International Law: 21-62. URL: https://ssrn.com/abstract=165743

Plurinational State of Bolivia (2010) Law of the Rights of Mother Nature, December 2010 (for an English translation, click here)

Republic of Ecuador (2008) Constitution of the Republic of Ecuador, 20 October 2008. (for an English translation, click here)

Stone, CD (1972 / 2010) Should Trees Have Standing? Law, Morality, and the Environment. 3rd Edition. Oxford University Press, Oxford

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