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KNU Environmental Law Center · People for Earth · Sun Pro Bono Center Joint Conference : Legal Issues and Challenges in Marine Animal Protection
  • 2023-10-19
  • 244

On August 25th, Environmental Law Center of Kangwon National University, People for Earth, and the Sun Pro Bono Center signed a Memorandum of Understanding  and jointly organized an academic conference with the main theme of "Legal Issues and Challenges in Marine Animal Protection."
 

These three institutions have been collaborating in the field of environmental studies, supporting climate change lawsuits brought forth by the Korean 'Youth Climate Action,' and reviewing the latest trends and legal issues in climate change lawsuits, including those in Germany. This academic conference began with an opening presentation by Kumsil Kang, the President of the Sun Pro Bono Center and People for Earth, titled "Earth Jurisprudence and the Rights of Animals," followed by two sessions: Session 1 (Keynote Presentations) and Session 2 (Comprehensive Discussion).

 

 

 

[Opening Presentation] Earth Jurisprudence and the Rights of Animals - Kumsil Kang(President, Sun Pro Bono Center and People for Earth)

 

The climate crisis and the issue of extinction mark the end of the Holocene epoch. Thomas Berry, an ecologist and geologian, introduced a vision called the "Ecozoic Era" around the year 2000 and proposed the concept of "Earth Jurisprudence," which considers the entire Earth as a legal entity and a philosophy. The principles of Earth Jurisprudence start with the notion that "rights arise at the point of origin of existence," asserting that the entire cosmos and all its constituents can hold rights. Furthermore, it specifies that all members of the Earth community have the right to exist, to dwell, and to fulfill their functional roles in the Earth community's journey of flourishing. This principle has prompted movements worldwide to enact legal frameworks that reflect these ideas.


Notably, the concept of "Rights of Nature," championed by American legal scholar Christopher Stone in 1970, has gained substantial attention as a practical alternative. According to the 2020 report of the United Nations Harmony with Nature initiative, over 34 countries worldwide have recognized legal rights of nature cases. In the context of non-human animal rights, a precedent was set in March 2019 when the Federal Supreme Court of Brazil acknowledged the rights of parrots inhabiting the Amazon rainforest. Additionally, the same year, the Supreme Court of Mexico issued a ruling prohibiting cockfighting and explicitly stated that any practice involving animal cruelty and unnecessary suffering could not be considered a culturally accepted tradition protected by the constitution. In Korea, efforts are underway to establish a "Legal Entity for Ecology" framework to confer legal personality upon the endangered Jeju dolphins.

 

 

 

[Session 1] Recent Trends and Legal Issues in Fish Welfare - Professor Taeseong Ham(Kangwon National University School of Law)

Should we provide a uniform legal status to humans, animals, and objects, or should they receive differential treatment? Can animals become subjects of enjoyment of interests protected by the law? Should public interest encompass the interests of not only humans but also animals? Should the interests of both parties be considered in the same manner? If not, how can we distinguish their interests? Many legal provisions classified under public law treat animals as subjects for human use and management. The protection of animals has been achieved through regulations that emphasize human obligations rather than conferring legal status upon animals. However, there is no reason why the legal status of animals in the judicial and public realms cannot be reconciled, and it is possible to explore approaches where both parties have similar structures and interconnections. The legal status of animals can be differentially defined based on criteria such as perceptibility or the capacity to experience pleasure and suffering.

 

Until recently, discussions on animal welfare excluded fish because they were believed not to experience pain. However, ongoing research has consistently provided scientific evidence that fish do feel pain and have the capacity to perceive. These findings have a significant impact on defining the concept and scope of fish welfare. Consequently, international organizations such as the European Union, the World Organization for Animal Health (OIE), and private international organizations like the Aquaculture Stewardship Council (ASC) have started addressing fish welfare issues comprehensively, setting specific welfare standards.

 

However, the current Animal Protection Act in South Korea, through its enforcement ordinance, excludes fish intended for consumption from legal protection. This contradicts the legislative purpose and intent of animal protection laws and is anthropocentric. Considering the policy and legislative trends related to fish welfare in other countries, it is necessary to remove the exclusion clause for fish intended for consumption from the Animal Protection Act. To achieve this, specific regulations defining protection and welfare standards for fish at various stages, including breeding, transportation, and slaughter, need to be established.

 

 

 

[Topic 2] Legal Issues and Challenges in Establishing Ecological Entities - Professor Taehyun  Park(Academic Society on Earth Jurisprudence, Kangwon University School of Law)

 

The philosophy, ontology, and methodology underlying current environmental law, based on modern Western law, are rooted in religious anthropocentrism, Cartesian subject-object dualism, philosophical individualism, and ethical utilitarianism, according to the Oslo Declaration. This worldview continues to dominate the way environmental law is perceived and interpreted. This perspective overlooks ecological interdependence and is most pronounced in the objectification or commodification of nature. Overcoming these shortcomings in environmental law requires not just more laws but entirely new ones.

 

A New Paradigm for Environmental Protection

Rights of Nature Mumta Ito, a lawyer and expert leading the Rights of Nature movement in Europe, asserts that the core of the Rights of Nature model is recognizing nature as a unique entity with legal standing within our human legal system. She identifies the key mechanism for this as "Rights of Nature." According to Ito, this model leads to the proposition that "the most fundamental right is the right of nature, and beneath the right of nature is the right of humans, and beneath the right of humans is the right of property or business."

 

Nature and Legal Personality

The concept of ecological legal persons involves recognizing the legal standing (legal personality) of specific biological species or ecosystems, the so-called "natural entities." While this approach utilizes the existing legal entity framework, it acknowledges the intrinsic identity of living natural entities and seeks to establish an appropriate legal status within the legal system to protect them. Thus, ecological legal persons are based on different legal principles and philosophies than traditional legal entities.

 

*Overseas Legislative Examples of Granting Legal Personality to Natural Entities

Category

Object

Entire NatureRights SubjectNature or Pachamama (Ecuador, 2008)
Mother Earth (Bolivia, 2010)
Nature (Panama, 2022)
Specific EcosystemLegal PersonalityForest (New Zealand, 2012)
River (New Zealand, 2017)
Estuary (Spain, 2022)
Specific SpeciesRights SubjectSea Turtles (Panama, 2023)

 

*Case of New Zealand's Te Awa Tupua (Whanganui River) Act
On March 15, 2017, the New Zealand Parliament passed the Te Awa Tupua Act, which grants legal personality to the Whanganui River. According to this law, the Whanganui River is granted the same legal status, rights, obligations, and responsibilities as humans. A guardian entity, composed of one representative appointed by the Maori community and one appointed by the government, is responsible for representing the interests of the river in terms of its health and well-being. 

-The Te Awa Tupua entity encompasses the entire Whanganui River, including all its physical and metaphysical elements, making it an indivisible and living whole (Article 12). 

-The original values of Te Awa Tupua include four aspects (Article 13): 1) The river is the source of spiritual-physical self-sufficiency. 2) The great river originates from the mountains and flows to the sea. 3) I am the river, and the river is me. 4) Small and large tributaries flow into each other, forming one river.
-Te Awa Tupua has all rights, powers, duties, and responsibilities as a legal entity. These rights and duties are exercised or fulfilled in its name according to the provisions of Section 2 and the Te Mana o Te Awa Tupua document for the benefit of Te Awa Tupua (Article 14, Article 18, paragraph 2).

 

 

 

[Topic 3] Issues in South Korean Legislation related to Marine Animal Protection and Proposed Improvements - Professor Ikjun Yoon(Daegu University Law Research Institute)

 

South Korea has established a legal foundation to address issues such as habitat destruction, overfishing, and marine pollution, including the "Marine Ecosystem Conservation and Management Act" in 2007, the "Marine Environmental Conservation and Utilization Act" in 2017, the "Marine Spatial Planning and Management Act" in 2018, and the "Ordinance for Sustainable Management and Restoration of Tidal Flats and Their Surrounding Areas" in 2019. In addition, South Korea's legislation pertaining to marine animals includes the "Law on the Conservation and Utilization of Biodiversity" and the "Wildlife Protection Act," while the "Fisheries Act" and the "Fishery Resources Management Act" comprehensively regulate marine fauna and flora under the categories of "marine aquatic organisms" and "fishery resources," imposing obligations for the protection and management of these species. As a result, these legislations are associated with marine animal protection.

 

Issues in South Korean Legislation related to Marine Animal Protection
1. Lack of specific implementation regulations
2. Problems with the designation system for protected marine organisms (overlapping designation of protected marine species and endangered wildlife species)
3. Inadequate legal planning for marine animal protection
4. Lack of regulation for the entry of pollution substances such as plastics
5. Insufficient coordination with the system for designating and managing marine protected areas
6. Inconsistencies between penalties in the Marine Ecosystem Act and the Wildlife Protection Act

 

Marine animal protection involves the challenge of integrating and reconciling "utilization" and "protection." However, in the context of the Marine Ecosystem Act, the aspect of marine animal protection significantly lags behind the element of "protection." An example illustrating this is the anti-bycatch provision. The Marine Ecosystem Act does not provide specific regulations to prevent harm from bycatch, but rather imposes an obligation to make efforts. It assigns the obligation to carry out technological research and development to both the state and local governments, lacking concrete regulations to prevent harm. With regard to bycatch of whales, it is covered only in the "Regulation on the Conservation and Management of Whale Resources" under fisheries-related laws, which allows for exceptions in the sale of bycatched whales, potentially promoting or encouraging bycatch. Under the current legal system that already considers whales as a kind of fishery resource, marine animal protection may be limited to a mere formality. From 2011 to 2019, approximately 15,000 whales were bycaught over nine years, which clearly demonstrates how insignificant the current anti-bycatch regulation is.

 

To address the problems in South Korean legislation related to marine animal protection, this analysis aims to present the necessity for changes in the legal system, similar to the provisions of the Ministry of Environment's regulations, and to emphasize the need for specific legal improvements in norms and systematization concerning prohibitions on activities such as capture and collection that the Marine Ecosystem Act regulates, as well as restrictions on advertising and observation actions related to marine protected organisms.


 

 

[Discussion]

 

 

Panelists:

Taegyu Choi, CEO of the Project Moon Bear
Professor Dongseok Oh, Ajou University School of Law
Hyoungjoo Lee, CEO of the Animal Welfare Awareness, Research and Education AWERE

 

 

 

 

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