The Paradigm Shift for a Healthy Connection of People with the Ocean in this UN Ocean Decade
Authors: Michelle Bender*, Jojo Mehta**, Antoinette Vermilye***, Dr. Anna von Rebay*
*Ocean Vision Legal, **Stop Ecocide International, ***Gallifrey Foundation
The Ocean is the life support system of the planet and human wellbeing is inextricably linked with the health, integrity and functioning of the Ocean. Nonetheless, despite the multitude of laws and policies internationally to protect and conserve the Ocean, marine biodiversity continues to decline. Existing environmental protections are often not adhered to or are poorly enforced to prevent severe contamination of and damage to marine ecosystems. Many States, as well as NGOs, lawyers, academics, scientists, grassroots movements and a growing number of voices in the corporate and finance sectors are speaking out in support of stronger legal frameworks and accountability. In response to the growing environmental crisis’, two strategies have recently emerged to provide more holistic and effective protection for the marine environment: ‘Towards a Universal Declaration of Ocean Rights’ (UDOR) and the ‘Ocean for Ecocide Law Network’ (OEL).
As both frameworks aim to fundamentally reshape the underpinning values and principles that guide decisions, Jojo Mehta, the co-founder of Stop Ecocide International and Michelle Bender, founder and creator of 'Ocean Rights', explore in this blog post their view on the shared values of both frameworks.
Rights of Nature and Ecocide Law
How we value the Ocean is tightly linked to how society will manage our activity in the marine environment. UDOR and OEL are subbranches of broader frameworks called Rights of Nature (RoN) and Ecocide Law respectively. Both are two emerging and innovative legal pathways that aim for a systemic reframing of western legal systems utilizing an ecocentric ethic: reorienting environmental ethics away from an anthropocentric worldview (i.e. humans are perceived as central, separate and dominant over Nature) and catalyzing a transformation in how humanity relates to, values, and uses Nature (i.e. humankind as one of many interdependent species in the entire natural ecosystem). While this core value is inherent in both campaigns the main difference lies in how each framework achieves such a paradigm shift.
Rights of Nature (RoN) is broadly understood as an emerging legal framework that recognizes Nature as a subject of Rights with intrinsic value, and humankind’s responsibility to be effective stewards on behalf of present and future generations of all life. The mechanism for reorienting the values and ethics underlying our legal systems thusly lies in the provision of ‘Rights’ or ‘legal personality’ which structure the form of governments and the content (and therefore the implementation and effectiveness) of law. The provision of “Rights” enables society to relate to Nature as an entity with intrinsic value worthy of protection in itself, rather than a resource for human benefit and utility. Indeed, as a subject of Rights, Nature’s scope of protection is amplified and the InterAmerican Court of Human Rights has noted that this protection exists even in the absence of the certainty or evidence of a risk to individuals.
Approximately five percent of Rights of Nature laws and policies are specific to the Ocean, and to address this gap with specific application and attention to the supranational reality of the Ocean policy seascape, is the UDOR. The Universal Declaration of Human Rights (UDHR) outlines fundamental rules, shared values and principles that provide consistency to, and aid in the development and interpretation of domestic law. Similar to the Universal Declaration of Human Rights (UDHR), the aim of the UDOR is to outline fundamental principles to inform all Ocean agendas based on a respect for the Ocean’s inherent Rights and the inseparable human-Ocean relationship. Thus, the UDOR, a call to action led by The Ocean Race, Earth Law Center and the Government of Cabo Verde, is an ethical framework that seeks to ensure the Ocean’s voice, interests and needs are represented in decision making from the international to local level.
Via the Stop Ecocide Foundation, an international independent expert panel agreed on a definition of Ecocide in 2021 to mean “the unlawful or wanton acts committed with the knowledge that there is substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.” The goal is to introduce Ecocide as the fifth crime of the international Rome Statute of the International Criminal Court (ICC). The legal recognition of “Ecocide” as a crime at the international level could go a long way to shifting attitudes and guiding behaviour with regard to (severe) threats to the Earth’s primary life support system - the Ocean.
Criminal law is often thought of as a framework for punishment, but homicide isn’t first a law to punish murderers, it’s a law to stop people committing murder. Criminal law is first meant to be a protective law. The mechanism for reorienting the values and ethics underlying our legal systems thusly lies in the substantial and immediate moral power that stems from the criminalization of harmful and irreversible harm to Nature.
The Ocean for Ecocide Law Network comprises a rapidly expanding and growing network of organizations, businesses and communities that live and work with the Ocean, created by Stop Ecocide International, calling on governments to support the inclusion of Ecocide into the Rome Statute of the International Criminal Court, and to positively engage in the growing global conversation to make this a reality. International recognition of Ecocide will provide a much needed framework to protect Ocean wildlife and marine ecosystems from the worst harms. It will ensure that Ocean regulation and protection are taken far more seriously at the highest level, driving better due diligence and stimulating strategic positive change.
As reflected above, both frameworks extend beyond and deeper than their initial face value use of ‘Rights’ and ‘criminal law,’ respectfully, and fundamentally reshape the underpinning values and principles that guide decision making. In the context of Ocean law and policy, both frameworks instill:
Responsibility and Stewardship: The recognition that the Ocean has limits to be respected and that humankind has a responsibility and obligation to protect and preserve the marine environment for the long-term benefit of all life on the planet.
Protection: Amplifying and prioritizing the safeguarding of marine ecosystems, rooted in the Ocean’s intrinsic value, as essential for the well-being of all life on Earth.
Precaution and Prevention: Where there are threats of serious or irreversible damage, the lack of full scientific uncertainty shall require precautionary measures, and the prevention of harm to the Ocean before it occurs. In cases of doubt, the decision that best guarantees the Rights of Nature and its preservation, while giving preference to less harmful alternatives, prevails (when in doubt err on the side of Ocean or “in dubio, in favorem Oceani”).
Equity and Justice: A shift in power to those communities and stakeholders most affected by poor governance and the ability to hold individuals, governments and corporations accountable for actions that cause a violation of the Rights of the Ocean or substantial harm to the marine environment.
Reversal of the burden of proof: The burden of proof is placed on those actors to prove their activities (and its externalities) will not cause severe harm to the marine environment.
Interconnectedness and Humility: A ‘One Ocean’ approach that recognizes that human identity is an extension of everything around us, and that our actions and impacts transcend imaginary Oceanic boundaries.
Two Sides of One Coin
It is not necessary for either, RoN or EL, to be in place for the other to be implemented. Nonetheless both frameworks are frequently referred to as “two sides of the same coin” or regarded as two different ways of achieving the effective protection of Nature. Just like the crime of murder (one side of the coin) prevents infringements of the right to life (other side), Ecocide can help prevent infringements of Nature’s rights. A review of a case regarding sharks in Ecuador demonstrates this analogy in practice:
In 2017, a Chinese vessel was found with over 6,000 dead sharks (or 300 tonnes) from where they were protected in the Galapagos Marine Reserve. In Ecuador, the RoN were recognized in the Constitutional amendment of 2008. Furthermore, industrial fishing is prohibited in the Galapagos Marine Reserve, fishing gear and systems designed to catch sharks, including finning of sharks is prohibited, and Article 247 of the Organic Integral Penal Code of Ecuador criminalizes ecocide, including crimes against biodiversity, Nature or pachamama, and wild flora and fauna.
In Ecuador’s Constitution, Nature, or Pachamama, has the Right to “maintain and regenerate its cycles, structures, functions and evolutionary processes;” has the Right to be restored and this restoration shall be apart from compensation to people; and “the State shall apply preventative and restrictive measures on activities that may lead to the extinction of species, the destruction of ecosystems and the permanent alteration of natural cycles (Art. 71-74). Thus, Ecocide Law is established in Ecuador’s Constitution alongside the Rights of Nature. As a result, precaution and prevention is required in order to prevent Ecocide and the infringement of Nature’s Rights.
In its judgment, the Ecuadorian Supreme Court ruled that the captain and crew were to receive prison sentences and fined $6,137,753.42, noting that Nature, as a subject of Rights, is entitled to complete reparation from the Crime (due to the Constitutional Right), and that the amount necessary as compensation depends on both material and immaterial damage caused. The court also noted the serious environmental impact the removal of sharks has on the ecosystem and the important roles they play as apex predators by maintaining marine ecosystems in good health. As a result, the shark's scope of protection was amplified through both the legal recognition as a subject of Rights, and through the penalization of a Crime against Nature, just as the violation of the Right to Life is penalized by law.
Towards a Paradigm Shift
Hence, neither the RoN nor Ecocide Law are intended to diminish Human Rights, but rather provide a form of checks and balances to maintain the integrity and functionality of the Environment in order to ensure the effective realization of Human Rights now and into the future. Both frameworks in the context of Ocean governance require humankind to respectfully balance the exploitation of the Ocean with the responsibility to sustain the Ocean’s health.
The international community continues to call for transformative change away from business as usual, including the United Nations, having noted that in order to maintain the quality of life that the Ocean has provided to humankind, a change is required in how humans view, manage and use the Ocean and seas. In this third year of the UN Ocean Decade, the paradigm shift is already happening. RoN has emerged in nearly forty countries in the form of constitutional amendments, national law, judicial decisions, treaty agreements, local law, and resolutions: for example, in Ecuador, Uganda, Mexico, Spain, India, Colombia, Panama, Belize, New Zealand and the United States.
Since 2021 dozens of nations are now discussing Ecocide law. Belgium is legislating and domestic bills have been announced in Brazil, the Netherlands and Mexico most recently. The Republic of Vanuatu and Ukraine, both victims of severe environmental destruction (via climate change and conflict respectively), are vocal advocates. An international crime of ecocide is also supported by:
the European Union (27 states), currently negotiating inclusion of ecocide-level crimes into EU law with the EU Commission & Council;
the Council of Europe (46 states);
the Organisation for Security and Co-operation in Europe (57 states);
the Inter-Parliamentary Union (179 states);
the International Corporate Governance Network (world’s top asset managers); and
the World Council of Churches.
Youth, faith and Indigenous networks have all endorsed the initiative, as have citizens assemblies and business/investment networks.
Support the Campaigns
The either/or narratives are false: either protecting Human Rights or Nature’s Rights, and either promoting economic growth and harming the Environment or ceasing economic development and protecting the Environment. Ocean Rights and Ecocide Law are a win-win for all life on the planet. Join them today.
The Universal Declaration of Ocean Rights is an international initiative led by the government of Cabo Verde, The Ocean Race and Earth Law Center, to achieve the passage of a Universal Declaration of Ocean Rights by 2030, with the near-term goal (Sept. 2023) to introduce language in this year's UNGA omnibus resolution on "Oceans and Law of the Sea."
Sign the One Blue Voice Petition today.
Ocean for Ecocide Law is a growing network of organisations, changemakers and influencers who have joined forces to support this initiative calling on governments to support the inclusion of Ecocide into the Rome Statute of the International Criminal Court, and to positively engage in the growing global conversation to make this a reality.
E-mail Stop Ecocide International (email@example.com) for questions.
Endorse the open letter today.
 Living Planet Index, available at http://www.livingplanetindex.org/projects?main_page_project=BluePlanetReport&home_flag=1
 Kai MA Chan and others, ‘Why Protect Nature? Rethinking Values and the Environment’ (2016) 113 Proceedings of the National Academy of Sciences 1462, available at https://pnas.org/doi/full/10.1073/pnas.1525002113.
 Leif Wenar, ‘Rights’, Stanford Encyclopedia of Philosophy (2020), available at: https://plato.stanford.edu/entries/rights/.
 Marceau J and Stilt K, ‘Rights of Nature, Rights of Animals,’ 2021, Harvard Law Review, available at: https://harvardlawreview.org/2021/03/rights-of-nature-rights-of-animals/.
 InterAmerican Court of Human Rights, Advisory Opinion OC- 23/17, ‘The Environment and Human Rights’, requested by the Republic of Colombia, 15 November 2017, para. 62.
 Jojo Mehta, Legally protecting nature: The power of recognising ‘Ecocide, 2023, available at: https://diem25.org/legally-protecting-nature-the-power-recognising-ecocide/.
 Carr L et. al, “Illegal Shark Fishing in the Galapagos Marine Reserve,” 2013, Marine Policy.
 Código Orgánico Integral Penal, 2014, Chapter 4; CEDENMA, Legal Brief on Rights of Nature in a Galapagos Context, 2016, available at: https://ecojurisprudence.org/wp-content/uploads/2022/02/Legal-arguments-for-the-shark-case-in-Ecuador.pdf.
 Ecuador’s Case Lawsuit Against the Illegal Transport of Sharks in the Galapagos, available at: https://ecojurisprudence.org/initiatives/illegal-transport-of-sharks-galapagos/.
 Sustainable Development Knowledge Platform, United Nations, available at: https://sustainabledevelopment.un.org/topics/oceanandseas.
 Omnibus Resolutions are more detailed and longer than regular Resolutions. They can cover many different issues in one document and provide more specific information about a specific topic. They usually support existing processes and Resolutions but often call on states/governments to take additional actions. Just like Resolutions, Omnibus Resolutions can be used by different bodies of the UN and for a variety of issues/topics. More at Alana Capell, What is an Omnibus Resolution?, Child Rights Resource Center, available at: https://resourcecentre.savethechildren.net/document/what-omnibus-resolution/; Every year, the General Assembly adopts a resolution entitled “oceans and the law of the sea” e.g. N2300478.pdf (un.org).