Reply to Bridgewater (2021), ‘Response to Davies et al., ‘Towards a Universal Declaration of the Rights of Wetlands’’

Keywords: Earth justice, Ramsar Convention, rights of Nature, traditional knowledge, wetlands.

Bridgewater (2021) comments on the article ‘Towards a Universal Declaration of the Rights of Wetlands’ (Davies et al. 2021a) and argues that the pursuit of wetland conservation and management should be limited to improving existing legal approaches, and that embracing the Rights of Wetlands (ROW), although seemingly attractive, is flawed. We appreciate his contribution to further discussion of the ROW and welcome the opportunity to continue the dialogue, as we have expressed subsequently in Finlayson et al. (2021). We emphasise that the case presented in Davies et al. (2021a) is a first step in developing a universal declaration, as noted in the inclusion of the words ‘towards a universal declaration’ in the title. Further, as with the development of rights generally, this takes time and will benefit from iterative and widely engaging dialogues (as shown in the timeline presented in the supplementary material to Davies et al. 2021a and updated in Finlayson et al. 2021), and as shown by the assessment of the rights of rivers by Kang (2019), and taking into account the cultural, ethical and legal changes that may be needed (Albrecht 2020). These sentiments are reflected in recent publications and presentations generated through the Society of Wetland Scientists Rights of Wetlands Initiative (Simpson et al. 2020; Davies et al. 2021b; Fennessy et al. 2021; Finlayson et al. 2021).

A substantial impetus for recognising the ROW (and rights of other elements of Nature) is that existing approaches have failed to stem the loss and degradation of wetlands and are failing to meet the challenges of the global climate and biodiversity emergencies, and the next 10–30 years will likely determine our long-term future (Ripple et al. 2017, 2020; Finlayson et al. 2019; Bradshaw et al. 2021). Doing more of the same, although potentially beneficial, will likely not result in the step-change that will fundamentally change the course of wetland loss and degradation. However, seeing the ROW as a complementary measure could contribute to turning the tide. Although published just a few months ago, as of the time of writing of this paper, the ROW Declaration has been endorsed by 25 organisations and numerous individuals (www.rightsofwetlands.org, accessed 2 May 2021), including Ramsar Convention International Organization Partners (IOPs) Wetlands International and the Wildfowl and Wetlands Trust, and by global leaders in the Rights of Nature (RON) movement, such as the Community Environmental Legal Defence Fund, Global Alliance for the Rights of Nature GARN Europe, Rights of Mother Earth, and Rights of Nature Sweden. Wetlands International and the World Wildlife Fund (WWF) are working collaboratively with the Society of Wetland Scientists Rights of Wetlands Initiative (Davies et al. 2021b) to develop guidance on how to operationalise the ROW.

We concur with some of the points and clarifications provided in Bridgewater (2021) and acknowledge the wide contribution he has provided to wetland conservation and governance over many years, including an insightful view on the future directions for the Ramsar Convention on Wetlands (Bridgewater and Kim 2021). In particular, we agree on the dire situation for wetlands globally (Moomaw et al. 2018) and on the unsatisfactory outcomes generated through existing wetland governance regimes, as outlined in the Convention’s Global Wetland Outlook (Ramsar Convention on Wetlands 2018; Finlayson and Gardner 2021), and further described in recent initiatives and articles written under the auspices of the Society of Wetland Scientists (Finlayson et al. 2019; McInnes et al. 2020; Simpson et al. 2020; Davies et al. 2021b). We also agree with Bridgewater (2021, p. 1399, lines 3–6) that humans are a part of Nature, as stated in Davies et al. (2021a):

Nature refers to the physical world, all the abiotic and biotic elements or members of the physical world, including humans, and the relationships and processes that sustain Nature…

In other cases, we either disagree with the assessment of Bridgewater (2021) or we find no conflict between the information he presents and our support for the ROW Declaration. In the text that follows, we respond to four specific concerns, namely the ‘salami-slicing’ (i.e. whether there is a need for multiple declarations), distraction (from existing efforts), exclusion (conflicts with Indigenous peoples and local communities, IPLC), and rights v. personhood.

Bridgewater (2021, p. 1397, lines 21–24) asks whether we need a Universal Declaration of the Rights of Wetlands when a Universal Declaration of the Rights of Mother Earth (ROME Declaration; see https://www.therightsofnature.org/universal-declaration/, accessed 25 April 2021) already exists (i.e. he suggests that ‘salami-slicing’ Nature into ecosystems is not helpful). The ROME Declaration recognises the Rights of Mother Earth and all of her interdependent living beings, thereby encompassing all ecosystems on the planet, but does not provide ecosystem-specific rights, which are and can be articulated in various ecosystem-specific declarations (Davies et al. 2021a). As noted by Davies et al. (2021a), many other declarations do exist, with the purpose of reaching different audiences and stakeholders. These declarations are mutually supportive, each bringing to the fore important considerations and rights that are relevant to the intended audiences and constituencies. The ROW Declaration articulates the rationale for wetland rights and identifies some of the key rights that could be adapted to specific local contexts (see Appendix 1).

Although the global RON movement already exists and has substantial support around the world, with implications for, and often inclusion of, wetlands, before the proposal for the ROW Declaration no RON declaration specifically proposed rights for all wetlands or included a wetlands-specific list of rights. Without a wetlands-specific declaration and list of rights, wetlands may continue to be under-represented in global discussions about the conservation, management and restoration of global ecosystems, and in RON discussions. Therefore, the ROW Declaration can be deployed to combat the ignorance about wetlands and their benefits that Bridgewater (2021, p. 1399, lines 35–37) references. Moreover, it provides a tailored vehicle for articulating the way in which RON thinking can be framed in wetland-specific policy, management and governance contexts, which otherwise may struggle to embed the more wide-ranging expressions of the RON principle in wetlands-specific operationally meaningful terms.

A similar approach to addressing both the general and the particular is seen in the many declarations concerning the rights of humans. The Universal Declaration of Human Rights (UDHR; see https://www.un.org/en/about-us/universal-declaration-of-human-rights, accessed 25 April 2021) proclaimed by the United Nations General Assembly in 1948 encompasses all humans but is not specific to any particular groups of humans. The UDHR has inspired more than 70 regional and global human rights treaties, which do address specific concerns and stakeholders (see https://www.un.org/en/about-us/universal-declaration-of-human-rights, accessed 25 April 2021).

The Universal Declaration of the Rights of Rivers (ROR Declaration; see https://www.rightsofrivers.org/, accessed 25 April 2021) recognises river-specific rights and extends those rights to watersheds and river basins, but does not encompass many other types of wetlands, such as frozen and unfrozen tundra wetlands and non-riparian, non-estuarine coastal wetlands. Other non-riparian wetlands, and other geographically isolated wetlands, as well as features such as lakes and ponds, appear to be included peripherally as part of the overall watershed rather than on an equal footing with rivers and their flood plains. The ROW Declaration instead provides a comprehensive recognition of the rights of the full spectrum of wetlands recognised by the Ramsar Convention and, in doing so, provides an additional, more-focused approach for supporting the goals of the Convention. We view these declarations and others to be mutually supportive, each reaching somewhat different, albeit sometimes overlapping, audiences and stakeholders.

Bridgewater (2021, p. 1397, lines 10–14) expresses concern that the existence of a ROW Declaration has the potential to divert energy and resources away from existing efforts to conserve and manage wetlands and their interconnected ecosystems. Despite the failure of existing approaches to alter the downward trajectory of the extent and condition of wetlands worldwide, Bridgewater (2021, abstract, lines 5–14; p. 1399, lines 20–33) advocates continuing to invest in existing mechanisms and approaches (i.e. ‘business as usual’) and avoiding new approaches. We argue that it is precisely the limited success of not only the Ramsar Convention and the Convention on Biological Diversity, but also numerous national and subnational efforts that generates the impetus to explore and develop additional and alternative approaches that can be used together with existing mechanisms in a multitrack approach to wetland conservation and management.

By pursuing ROW simultaneously with, and in support of, existing approaches to wetland conservation, management and restoration, these existing approaches can be further justified in a rights-based context, providing further reason to support the ROW Declaration. For instance, decisions made through the Ramsar Convention are consistent and compatible with the specific rights identified in the ROW Declaration. The right to natural, connected and sustainable hydrological regimes supports the targets of the Ramsar Fourth Strategic Plan (SP; Ramsar Convention on Wetlands 2015) on wetland functions and ecosystem services, and on integrated resource management; the right to naturally occurring biodiversity supports the SP target on the eradication or control of invasive alien species; and the right to regeneration and restoration supports the SP target on restoration. The ROW Declaration represents a purposeful effort to identify synergies with existing mechanisms and, although specifically promoting the ROW, also provides support for, and seeks the improvement of, existing mechanisms.

Since 1997 (Convention on Biological Diversity (CBD) COP3 decision III/21), the CBD has recognised the Ramsar Convention as its lead implementation partner for wetlands (see https://www.cbd.int/decision/cop/?id=7117, accessed 31 August 2021), with delivery of this partnership occurring through the implementation of five successive joint work plans (JWPs), the most recent being for 2011–20 (see https://www.ramsar.org/sites/default/files/documents/pdf/moc/CBD-Ramsar5thJWP_2011-2020.pdf, accessed 31 August 2021), which has therefore now expired. Much of the implementation of the JWPs has concerned joint scientific and technical action and the development of guidance at the global scale. However, it is unclear whether these JWPs have led to any enhanced national or on-the-ground implementation of wetland conservation and wise use (as defined by Ramsar); although, in November 2020, the two Convention Secretariats jointly issued an online survey to their respective national focal points concerning such implementation (see https://www.cbd.int/doc/notifications/2020/ntf-2020-082-ramsar-cbd-en.pdf, accessed 29 April 2021), the results of the survey do not appear to have been issued yet. This lack of clear progress underscores the value of a multitrack approach.

The article by Davies et al. (2021a) and the ROW Declaration were submitted in a Colombian court case on behalf of the rights of Lake Tota (the largest lake in Colombia) and thus have already been deployed in support of a recent effort to protect a regionally important wetland (F. Velasco, pers. comm., 26 April 2021). Elsewhere, in Orange County (FL, USA), a lawsuit has been filed in state court (see https://static1.squarespace.com/static/5e3f36df772e5208fa96513c/t/608837c15b1c8231ebfa7f28/1619539905869/Rights+of+Waterways+Legal+Complaint+April+26+2021.pdf, accessed 4 May 2021), naming a wetland network of specific streams, lakes and marshes as plaintiffs. In November 2020, voters amended the Orange County charter to recognise the rights of waterways and wetlands to exist, to flow, to be protected from pollution and to maintain ecological health. The lawsuit seeks to prevent a development project by requiring a permitting agency to abide by the County charter (see https://www.theguardian.com/environment/2021/may/01/florida-rights-of-nature-lawsuit-waterways-housing-development, accessed 3 May 2021).

Bridgewater (2021, p. 1399, lines 37) also notes that much of the world continues to view wetlands as wastelands. The ROW Declaration creates a vehicle for educating new audiences, such as those involved in the RON movement, about the importance and diversity of wetlands and their critical ecosystem services (Moomaw et al. 2018). Many of the organisations and individuals who have endorsed the proposal for a ROW Declaration come from outside the wetland community.

Bridgewater (2021, p. 1398, lines 39–44) recognises the importance of weaving Indigenous and local knowledge (ILK) with other knowledge, such as that from contemporary wetland science, in efforts to conserve, manage and restore wetlands. We very much concur, and note that the perspectives, contributions and leadership of IPLC have informed and guided the RON movement (Studley and Bleisch 2018; La Follette and Maser 2020), as well as the development of the ROW Declaration. Recognition of the ROW and the rights of other elements of Nature is fundamentally based on a recognition of their status as living beings, integral to the web of life. For some, this may represent a paradigm shift towards a perspective long held by many IPLC through past millennia, and by many cultures around the world, as documented in the timeline and world map in Davies et al. (2021a). Legal personhood and rights for wetlands and other elements of Nature can be seen as an expression of the recognition of the living beingness of Nature in legal language and practice, thereby weaving a more respectful and reciprocal relationship with wetlands and Nature into existing approaches for wetland conservation and management.

We note that articulating rights that apply specifically to wetlands, as Davies et al. (2021a) have done, can be considered more supportive of the perspectives of certain IPLC than declarations that address Nature as a whole (see the discussion on ‘salami-slicing’ above). Conceptions of Nature as a single entity, and separate from human culture, tend to perpetuate a western Nature–culture dualism that is counter to the worldview of many IPLC (O’Donnell et al. 2020). Creating rights for specific natural entities aligns more closely with those IPLC worldviews.

Although Davies et al. (2021a) refer to the ROW and the recognition of the living beingness of Nature or elements of Nature, such as wetlands, as being compatible with perspectives shared by some (but not all) IPLC, Bridgewater (2021, p. 1397, lines 13–22) expresses concern that there could be ‘…a danger of confusion over rights for [IPLC]’. We agree that RON are distinct and different from rights for IPLC, just as they are distinct and different from women’s rights, civil rights and human rights in general. We have set out with the clear intention that rights for IPLC, for wetlands and for other elements of Nature should not be conflated or confused with each other. We have avoided this confusion by clearly articulating how the rights are defined.

Further, we agree with Bridgewater’s (2021) statement that ‘…stewardship draws on many different knowledge systems without seeing these knowledges in a hierarchy, but rather as complementary; again, weaving in action’ (p. 1398). We also concur that frameworks being developed through the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) around Nature’s contributions to people (Pascual et al. 2017) are important considerations and have value, but find that the ROW Declaration and other RON declarations, in recognising inherent rights and beingness of wetlands and Nature, provide an opportunity to go beyond the anthropocentric models and mindsets that have substantially contributed to the current ecological and climatic emergencies.

We also agree with Bridgewater (2021, p. 1398, lines 8–10) that the RON and the ROW should not be misused as a cloak for ‘exclusionary conservation practices’, just as any legal vehicle should not be misused for unintended purposes. Although guarding against misuse is important, we also see an important opportunity for successful collaborations between Indigenous and non-Indigenous organisations due to the compatibility between the recognition of the living beingness of Mother Earth and elements of Nature that is common to many IPLC perspectives and the way this is reflected in legal RON. To this end, the Society of Wetland Scientists Rights of Wetlands Initiative is collaborating with a range of communities and organisations to convene an ongoing dialogue about the rights and living beingness of Nature, elements of Nature and wetlands (Simpson et al. 2020; Davies et al. 2021b).

Bridgewater (2021, p. 2, lines 45–50) states, ‘Legal personhood for nature or elements of nature … is a complex and difficult matter, because the legal system that confers personhood is that of one species: ours’. Supplementary material provided with Davies et al. (2021a) provides extensive (but far from complete) documentation of the history of the expansion of the circle of rights-bearing entities and rights granted to Nature or elements of Nature over the past millennia, including into the present. Christopher D. Stone, an attorney and seminal thinker in the emergence of the modern RON movement, advised readers in 1972 to open their minds to the expansion of rights, and to avoid being constrained by the legal and cultural status quo (Stone 2010):

Throughout legal history, each successive extension of rights to some new entity has been, theretofore, a bit unthinkable. We are inclined to suppose the rightlessness of rightless ‘things’ to be a decree of Nature, not a legal convention acting in support of sonic^A status quo. It is thus that we defer considering the choices involved in all their moral, social and economic dimensions.

Bridgewater (2021, p. 1398, line 25) further states, ‘It is critical to understand that rights can be granted only to a person or a clearly defined object, which wetlands are not…’. This statement is incorrect. As an example of rights being granted to entities that are neither human persons nor clearly defined objects, in the US, as well as in other countries, corporations have been granted legal personhood and associated legal rights (Supreme Court of the United States 2010). US Supreme Court Justice William O. Douglas articulated this logic and argued in 1972 that:

[a] ship has a legal personality… The ordinary corporation is a ‘person’ for purposes of the adjudicatory processes… So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. [Dissenting opinion in Sierra Club v. Morton, 405 U.S. 727, 742–43; Supreme Court of the United States 1972].

Furthermore, legislatures and courts have already granted rights to elements of Nature, including to some wetlands, such as New Zealand’s Whanganui River and associated riparian wetlands, Ecuador’s Vilcabamba River and Colombia’s Atrato River and Amazon River ecosystem (Bryner 2018; Kauffman and Martin 2018), indicating that some legislative and legal entities already recognise specific wetlands as rights-bearing entities.

Bridgewater (2021, p. 1397, lines 25–30) acknowledges the difficulties that may be encountered in determining how the ROW will be balanced by responsibilities, and differentiated from human rights initiatives, particularly when different knowledges and worldviews are involved. We see this as an emerging field, with much work yet to be done. Existing examples, such as those mentioned above and others, provide early models and lessons learned, but more are needed. As is the case for any new area of jurisprudence, as time goes on, a body, or bodies, of law will evolve. We anticipate that particular groups in particular areas will develop different approaches to implementing the ROW, to meet their own specific conditions and needs, geographically, ecologically, culturally and legally, just as other branches of emerging law have developed over time.

Finally, Bridgewater (2021, p. 1399, lines 35–50) concludes with a statement that:

…giving wetlands rights will not change the basic problem of human ignorance to the goods, benefits and services wetlands offer…giving wetlands rights will not prevent changes already baked into the Earth system affecting wetlands currently and into the future.

We respectfully suggest that recognition of the living beingness and the ROW and of Nature is precisely what is called for and, in fact, is a prerequisite to transforming human ignorance into human understanding and respect for wetlands, and Nature more generally. Furthermore, it is widely recognised that conservation and restoration of wetlands and other important ecosystems is likely the most scalable, and cost-effective, means for preventing further climate destabilisation, biodiversity and ecosystem loss and degradation, and for reversing current downward trends (Anderson et al. 2016; Fargione et al. 2018; Moomaw et al. 2018). We hold out hope that restoring the damaged Earth, including its wetlands, is still possible. We agree with Bridgewater’s (2021, p. 1399, lines 40–42) statement that changing negative trends requires nested local to global actions, and we propose that recognition of the ROW can be, and in fact is already being, accomplished locally to globally and thus is, and can be, woven into such nested actions.

A key issue raised by Bridgewater (2021, p. 1399, lines 6–15) is that there is no evidence that recognising the ROW will lead to better management of wetlands or contribute to reversal of climate destabilisation, and he quotes Kuhn (1972) as positing that paradigm shifts must happen all at once. Further, Bridgewater (2021) suggests that because of these considerations, the proposed paradigm shift is aspirational and diverts resources from current efforts. But following this logic would perpetuate the very same worldview that has led to the destructive exploitation of wetlands and other ecosystems (Ripple et al. 2017; Trisos et al. 2020; Bradshaw et al. 2021) and would block new ideas and initiatives, as they all, at least initially, would be aspirational.

An example of the success of aspirations is provided by the long effort to establish the Ramsar Convention on Wetlands, spearheaded in the 1960s by non-governmental waterbird scientists and hunters with the support of a few governments, and then handed to governments to implement (Matthews 1993). This was a new initiative and approach, and was definitely aspirational at the time. It took over 9 years to develop, was agreed in 1971, came into effect in 1975, with a permanent secretariat being formed in 1987 and, over its 50-year existence, has now reached 171 Contracting Parties (national governments), with 2418 of the world’s wetlands listed as Ramsar Wetlands of International Importance (www.ramsar.org, accessed 19 April 2021).

With this in mind, we are seeking further dialogue and interaction among multiple organisations and individuals to develop the concepts outlined in Davies et al. (2021a) and as refined in response to Bridgewater (2021). The success of the proposal to promote recognition of the ROW is seen as a platform for more effective wetland management, including by engaging Indigenous communities on their terms alongside, compatible with and expanding upon the ongoing activities of the Ramsar Convention and its partners. We offer the ROW as a contribution to the global efforts to combat the biodiversity and climate emergencies facing humanity, and in support of humanity engaging more harmoniously with wetlands.

Data sharing is not applicable because no new data were generated or analysed during this study.

Nick Davidson and Max Finlayson are editors for Marine and Freshwater Research but did not at any stage have access to this manuscript while in peer review, as is the standard practice when handling manuscripts submitted by an editor to this journal. Marine and Freshwater Research encourages its editors to publish in the journal and they are kept totally separate from the decision-making processes for their manuscripts. The authors have no further conflicts of interest to declare.

There was no specific funding allocated for this work. Individuals and their institutions supported the work through attendance at meetings and through other communication tools.