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‘All threats to the sea come from humans’: how lawyers are gearing up to fight for the oceans
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‘All threats to the sea come from humans’: how lawyers are gearing up to fight for the oceans

A few years ago, Anna von Rebay gave up her lucrative job in a corporate law firm specialising in art law to concentrate on her passion for the ocean. “All threats to the sea come from humans, who behave as though nature is nothing more than a resource,” says Von Rebay, who works in Germany and Indonesia. “But the ocean can’t stand up for itself.”

Inspired by a rising wave of lawsuits seeking to hold governments and companies to account for climate action, she set up Ocean Vision Legal, a law firm with a unique remit: to litigate on the ocean’s behalf.

“My aim was to motivate people, organisations and states to take legal action to enforce ocean protection,” she says.

She is not alone. Last year, the UN Environment Programme (Unep) said lawsuits challenging government and corporate inaction on the climate breakdown have become an important driver of change. There have been more than 2,500 lawsuits relating to the climate crisis around the world – and many relate to the ocean.

In January, Von Rebay’s firm initiated preliminary proceedings against Germany on behalf of Bund, a German conservation NGO, for issuing fishing licences that allow bottom trawling, a destructive fishing practice, in a marine protected area (MPA) of the Dogger Bank.

A harbour porpoise View image in fullscreen

One of the largest sandbanks in the North Sea, and home to porpoises and seals, the Dogger Bank is a protected area under the EU habitats directive. There was no environmental impact assessment carried out before permits were issued, Bund alleges.

“We think this is illegal and now the ministry is looking at our objection,” says Von Rebay.

If the case proceeds, it could set a precedent, with implications for other European countries’ licences if they allow bottom trawling in areas protected under the directive. Two NGOs, Bloom and ClientEarth, have already threatened France with legal action over allowing bottom trawling in MPAs in the Mediterranean.

Von Rebay, a surfer, is proactive on the ocean’s behalf. Since Iceland decided to resume whaling last month, she is working on a letter to the Human Rights Council, a UN body, warning that NGOs and others consider allowing whaling to be a potential infringement of the right to a healthy environment.

Anna von Rebay sitting on the edge of a boatView image in fullscreen

This month, her firm will launch a collective movement of NGOs and intergovernmental bodies calling for a universal declaration of ocean rights, similar to the rights of nature. It is also looking into the legal implications of deep-sea mining.

Von Rebay, however, is not the only lawyer exploring litigation as a tool against an industry as yet in its infancy but which could pose one of the greatest threats to the oceans. One of the world’s biggest environmental groups, the WWF, announced in May that it is suing the Norwegian government for opening up its seabed for deep-sea mining, claiming that Norway has failed to properly investigate the consequences of such activity.

And there have been other notable successes on behalf of the world’s seas. Perhaps the most significant came in May, when nine small island states won a historic climate case, which ruled that all signatories to a treaty known as the United Nations convention on the law of the sea (Unclos), must do more to protect the oceans from the impacts of global heating.

Together, as the Commission of Small Island States on Climate Change and International Law (Cosis), they had asked the court, the international tribunal on the law of the sea (Itlos), to clarify what was considered marine pollution under the convention.

View from above of a narrow strip of land between turquoise seasView image in fullscreen

The opinion found that signatories’ responsibilities to protect the sea extended to greenhouse gas emissions. While it is not legally binding, experts believe the opinion will have a significant impact on how courts rule on such issues in the future.

Payam Akhavan, legal counsel for Cosis, says Itlos has taken a “critical first step” in recognising that what small island nations have been fighting for at annual Cop climate negotiations for decades, is already part of international law.

“The major polluters must prevent catastrophic harm to small island nations, and if they fail to do so, they must compensate for loss and damage,” he says.

Isabela Keuschnigg, a legal officer at Opportunity Green, a non-profit organisation using law to solve climate issues, echoes the view that Itlos will “boost climate lawsuits”.

Lawyers sitting at a bench in a large roomView image in fullscreen

“There have already been successful challenges which have centred around vulnerable communities that are dependent on the ocean,” she says. She cites the case of the Torres Strait Islanders, a group of eight inhabitants of the low-lying islands threatened by sea level rise, off Queensland, Australia. In 2019, they submitted a complaint to the UN human rights council over Australia’s insufficient climate action. In September 2022, the UNHCR found in favour of the islanders, in a historic win for Indigenous communities.

At Ocean Vision Legal, Von Rebay is confident that people are waking up to the idea of using the law to protect the environment. “There is growing awareness that there are marine protection obligations and we need to start using them,” she says. “This is the beginning.”

Source: theguardian.com