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Ocean Rights in Action: Insights from Ecuador’s Constitutional Court on the Practical Applications of Rights of Nature in Ocean Governance

Writer's picture: Michelle BenderMichelle Bender

Michelle Bender, Legal Counsel at Ocean Vision Legal

 

Key words: Ocean Rights, Rights of Nature, Ocean Governance


On November 28th, 2024, the Constitutional Court of Ecuador delivered a judgment ruling that coastal marine ecosystems “have the right to have their existence and the maintenance and regeneration of their vital cycles, structure, functions and evolutionary processes fully respected.” [1, 2][para 49]


First initiated in 2020, industrial fishers argued that a regulation that established an 8-nautical mile artisanal fishing zone, prohibiting industrial fishing, violated Rights of Nature and their right to carry out economic activity. However, on the contrary, the Court determined that the measure ensures respect for the Rights of Nature and the conservation of coastal marine ecosystems and species, while allowing the economic development of artisanal fishermen.


Rights of Nature (RoN) is a legal and ethical framework recognising that Nature has inherent rights. Instead of treating Nature as property or a resource to be exploited, RoN frameworks position Nature as a rights-bearing entity with intrinsic value, deserving of legal protection and standing in court.


In its judgment, the Court confirmed that Art. 71 of Ecuador’s Constitution, which states that Nature has the right to integral respect for its existence, extends to the Ocean (marine ecosystems and species within Ecuador’s jurisdiction). The Court highlighted the importance of the Ocean and coastal marine ecosystems, noting they help adapt to climate change and mitigate its effects, and thus are fundamental for the “healthy functioning of the planet.” [para 42] Further, the Court found that marine-coastal ecosystems have an intrinsic value and each of their elements fulfills an individual role that, in turn, contributes to their preservation as a whole. Thus, it is necessary to adopt measures to guarantee, in a comprehensive manner, the Ocean’s vital processes. [para 48]


This judgment is significant for the development of RoN and effective protection of the Ocean as it provides multiple insights into the implementation and enforcement of Ocean Rights in practice.


Ocean Rights


  1. What does Ocean Rights mean in practice?


One concern often raised is whether human use of the Ocean would cease by recognising Ocean Rights. Legal recognition of the Ocean as a rights-bearing entity sets a standard that protection is essential and the norm. This does not mean all human activity is inconsistent with its protection, but it does require meaningful consideration of the Ocean's needs when managing human activity.


The Ecuadorian Constitutional Court confirms this, noting that the protection of the Rights of Nature, like other constitutional rights, has limits. Economic activity, such as fishing, is allowed in marine ecosystems, however, these activities are subject to regulation in order to avoid generating disproportionate impacts on coastal marine ecosystems and, consequently, violating their constitutional rights to full respect and conservation. [para 45] 


The Court further noted that human activities must be regulated so they are sustainable and respect the cycles, functions, structures and evolutionary processes of coastal marine ecosystems, as well as their conservation and restoration. Therefore, Ocean Rights requires protective and preventive action in order to ensure the cycles, processes and functions of marine ecosystems are conserved. [para 55] In sum, activities that allow the necessary conditions needed to sustain their ecological balance to continue may be carried out in marine ecosystems under a Rights of Nature framework. [para 48] Such activities and regulatory measures should be determined according to the characteristics of coastal marine ecosystems. [para 55] The 8-mile zone was established in accordance with the best available science on the characteristics of the coastal ecosystem, specifically to protect the area where small pelagic fish undertake spawning and recruitment. 


Thus, in practice, Ocean Rights may require limitations on the types of fishing gear and fishing areas, and the establishment of conservation zones or marine protected areas when there is risk of significant impacts on the marine environment.



  1. How are competing Human Rights balanced with the rights of the Ocean?

The Court considered, or balanced, the human right to economic development against the Rights of Nature. Recognising that the right to economic development is not absolute and can be limited for social and environmental reasons. Additionally, the right to carry out economic activities does not allow “excessive environmental impacts under the pretext of business activities." [para 86]


The Court applied a proportionality test to determine whether the 8-mile zone restriction was a justified limitation on the right to economic development. The best available science revealed that the 8-mile zone protects pelagic fish, maintaining the overall health of marine ecosystems, and will ensure long-term viability of the fishing industry (both artisanal and industrial alike). The court found that the restriction was suitable, necessary, and proportional to the aim of protecting marine ecosystems and the artisanal fishing sector, as follows: 


  1. Suitability: In the specific context of the use of Nature, the Court determines a measure is suitable when it guarantees the production and reproduction of the material and immaterial conditions that make possible the good life, without jeopardizing the good life of future generations. [para 99] The Court found that the industrial fishing sector has the infrastructure and means to fish further out, whereas artisanal vessels have less means to do so and benefit from less competition in the 8-mile zone. Utilising the best available science, the Court determined that the 8-mile zone has increased the biomass of small pelagic fish since its implementation, protecting fish populations at critical stages in their life cycle. [paras 101-106] Therefore, the measure to limit industrial fishing in the 8-mile zone is suitable. 


  2. Necessity: The Court determined that the use of Nature complies with this parameter when "the methods, actions and tools employed are the least harmful and cause the minimum possible environmental impact." [para 108] Artisanal fishing uses less harmful fishing gear than the industrial fishing sector. [para 30] The plaintiffs did not justify what less harmful measures could be adopted nor were the existence of other possible measures that would achieve the same purpose identified. [para 109] Therefore, the measure to limit industrial fishing in the 8-mile zone is necessary.


  3. Proportionality: The Court determined that a restriction of rights is legitimate if the realization of other rights is greater or at least equivalent. [para 112] In the context of the use of Nature, harm to Nature or its rights can be justified if the right to carry out economic development leads to a greater contribution to the regime of good living (life in harmony with Nature). [para 113] Industrial fishers could still fish in the zone and had the equipment to fish outside the 8-mile zone where the majority of pelagic fish are concentrated. Further, the zone was found to promote the production of the artisanal fishing sector, protect marine-coastal ecosystems and allow the preservation of the life cycles of small pelagic fish. [paras 114- 116] Therefore, the Court observed that the degree of satisfaction of constitutional values (such as the protection of marine ecosystems and the artisanal fishing sector) achieved by the regulation was high, while the limitation on industrial fishing was slight. Therefore, the measure was found to be proportional.


Rights consistently compete with one another, whether it’s the rights of communities, individuals or corporations. A proportionality test is fundamental to helping decision makers decide what is lawful, fair and just. The Rights of Nature are not considered more important than Human Rights, but instead must be taken into consideration alongside Human Rights when determining the legalities of human activity in the marine environment on a case by case basis. 




  1. How can Ocean Rights impact State’s obligation to protect and preserve the marine environment?

The general obligation under Art. 192 of the United Nations Convention on the Law of the Sea (UNCLOS) is arguably one of the most important obligations for marine protection of the international community, but is rarely enforced due to inter alia lack of understanding and political will. However, in international jurisprudence, ‘protection’ and ‘preservation’ are defined as ‘protection’ of the marine environment from future damage and ‘preservation’ in the sense of maintaining or improving its present condition,’ It puts States under the positive obligation to take active measures to protect and preserve the marine environment, and by logical implication, entails the negative obligation not to degrade the marine environment.” 


In determining whether the 8-mile zone was compatible with the Rights of Nature to full respect for its existence and restoration, the Court found that the zone was not only compatible with RoN, but the duty to protect the marine environment under UNCLOS.


The zone was determined as an area of the marine ecosystem where small pelagic fish undertake the spawning and recruitment states. Therefore, the prohibition for the industrial fishing sector to carry out extractive activities in this zone allows small pelagic fish to develop their first stages of life and protects the development of other species such as whales, sea turtles and corals, as elements of these ecosystems. [para 56 and 64]


The Court determined that the 8-mile artisanal fishing zone was therefore in harmony with the obligation to protect the Rights of Nature in accordance with the provisions set forth in the UNCLOS, specifically referencing Art. 192. [para 64] Thus, prohibitions on industrial fishing through artisanal fishing zones, or other measures, is consistent with the obligation of States to protect and preserve the marine environment. Further, as RoN creates higher standards of protection for Nature and requires the maintenance of its vital cycles, processes and functions, the recognition of RoN, or Ocean Rights, is also consistent with the obligation to protect and preserve the marine environment. In this way, Ocean Rights may be seen as a measure to ensure effective implementation of Art. 192 UNCLOS. 


Art. 192 of UNCLOS is a center stone to Ocean Vision Legal’s work (See Von Rebay, Anna, The Designation of Marine Protected Areas: A Legal Obligation (Springer Nature, Cham, 2023). We suggest that in order to comply with this obligation to protect and preserve the marine environment, States need to regulate industrial fishing and other destructive activities through measures such as seasonal closures, restrictions on fishing gear and marine protected areas. At the same time, these measures will also protect the Rights of the Ocean and Nature.


Stay tuned for more exciting updates on Ocean Rights this year!



[1] This blog is based upon an unofficial translation of the case.

[3] The South China Sea Arbitration (The Republic of Philippines v The People’s Republic of China), 2016 Permanent Court of Arbitration Case No 2013-19, para. 941.

[4] The South China Sea Arbitration (The Republic of Philippines v The People’s Republic of China), 2016 Permanent Court of Arbitration Case No 2013-19, para. 941.


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