An overview of state obligations towards marine biodiversity under the right to health
Loss and degradation of marine biodiversity is not just an environmental issue; it is also a human rights issue. This gives rise to a series of distinct state obligations under international human rights law.
There is increasing global recognition of the intrinsic relationship between marine biodiversity and human health, with the former providing a key source of food, nutrition, essential ecosystem services, and biomedical discovery in support of the latter. Nonetheless, despite this essential relationship, marine biodiversity continues to decline rapidly, driven by a multitude of anthropogenic factors including overfishing, pollution, habitat destruction, and climate change.
As scientific awareness of human health-marine biodiversity linkages continues to grow, it is becoming increasingly clear that the protection of marine biodiversity can no longer be deemed “only” an environmental issue; it is also a pressing human rights issue, with particularly strong implications for everybody’s right to health. However, the natural sciences’ awareness of this connection far outstrips that of the social sciences, and legal thinking on how to interpret and apply international obligations concerning marine biodiversity and human rights in an integrated manner lags several decades behind the confluence of environmental considerations and human rights. Furthermore, outputs by the Convention on Biological Diversity (CBD) Conference of the Parties and the World Health Organization (WHO) Assembly in recent years reveal a stronger awareness of this nexus within international biodiversity and health law than in international human rights law.
Against this backdrop, this blog post — which is derived from my ongoing PhD research — will explore: 1) why States are already obliged to protect marine biodiversity in the light of their human rights obligations; and 2) what kinds of actions States should take in light of these obligations. The post will conclude with reflections on further legal research needed to clarify these crucial issues.
Why should States protect marine biodiversity from the perspective of the human right to health?
Despite the relative lack of attention afforded to the role that marine biodiversity plays in supporting human rights, there are at least two tenable grounds on which to argue that States are already obligated to protect marine biodiversity as part of their pre-existing responsibilities under the right to health in international human rights law. Both hinge upon the understanding, as validated by the Committee on Economic, Social and Cultural Rights, that the right to health is not a right to be healthy, nor is it simply a right to healthcare. Rather, it is a right to “the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health”. In addition to healthcare, these “facilities, goods, services and conditions” include a non-exhaustive and expanding array of “underlying determinants” of health, including food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment”.
The first argument for a state duty to protect marine biodiversity under the right to health stems from the pre-existing acknowledgement that a healthy environment is a prerequisite — or an underlying determinant — to realising the highest attainable standard of health. Biodiversity in turn plays a core role in enabling a healthy environment. This relationship led the former UN Special Rapporteur on human rights and the environment to conclude that States’ “obligations to protect against environmental harm that interferes with the enjoyment of human rights (…) apply to biodiversity as an integral part of the environment”. Therefore, it can be argued that — due to increasing scientific understanding of the importance of ecosystem services for supporting human health — existing state obligations to protect the environment in the interests of the right to health extend to the protection and sustainable use of marine biodiversity.
The second argument for a state duty to protect marine biodiversity under the right to health rests upon the growing body of evidence concerning human health-marine biodiversity linkages, twinned with the fact that the portfolio of recognised underlying determinants to health continues to grow as global understanding of human health develops. Thus, marine biodiversity should be considered an underlying determinant of the right to health in its own right for three reasons:
- marine biodiversity contributes to positive health outcomes in a number of ways, including through the provision of food, nutrition, and essential ecosystem services such as production of atmospheric oxygen;
- if improperly managed, marine biodiversity can trigger negative health outcomes, including through increased incidence of waterborne pathogens and food safety risks; and
- marine biodiversity also holds immeasurable potential health benefits that have yet to be discovered. Indeed, biodiversity is one of the main sources of medical innovation and development, and research by the US National Cancer Institute found that samples from marine animals tested in a laboratory were 100 times more likely to hold anti-tumour potential than terrestrial samples.
Unfortunately, while the undiscovered potential of marine biodiversity could ultimately yield the greatest benefits to human health, it is also the most difficult component to protect under international human rights law. There are numerous challenges in obligating states to take action to protect something that is both unquantifiable and hypothetical.
What should States do to protect marine biodiversity for the benefit of human health?
The human health-marine biodiversity nexus gives rise to a series of interlinked and mutually supportive state obligations. First, States must facilitate and conduct research to advance scientific understanding of health-biodiversity linkages. Much remains unknown about the multitude of linkages between human health and marine biodiversity, and a strong understanding of such linkages will be necessary to guide fulfilment of the other obligations outlined below. This obligation requires not only empirical research, but also extensive engagement with all key stakeholders, to ensure that all interests — and particularly those of the most vulnerable and marginalised groups — are duly considered and protected.
Second, while ocean science progresses, States must deploy the precautionary principle twinned with the maximum available resources at their disposal to guide their efforts to protect marine biodiversity, both nationally and internationally (such as through regional fisheries management organisations). Maximum available resources could also include resources held by private sector actors, so States could, for example, develop incentives for private-sector investment in marine protection.
Furthermore, States have a duty to ensure non-discrimination in enjoyment of the right to health on multiple grounds, including sex, age, culture, economic status, and geography. Discrimination may result from failure to protect marine biodiversity leading to unequal access to food, livelihoods and inputs to traditional medicine, and increased exposure to health risks. For example, ocean plastics and other sources of marine pollution are understood to be a source of endocrine disruptors (amongst other harmful substances), which are being ingested by marine life and thus entering the human food chain. Endocrine disruptors pose a particular threat to women’s reproductive health, thus yielding a disproportionate burden upon women. There is also potential for discrimination stemming from efforts to protect biodiversity: tragically, there are numerous recorded incidents of conservation measures resulting in marginalisation of vulnerable groups, extrajudicial killings, and severing of ties to places of cultural and religious significance.
States are also subject to an obligation of non-retrogression, requiring them to refrain from reducing current levels of protection to marine biodiversity or from scaling-up harm, without adequate justification. For any retrogressive action to be considered justifiable, it must, amongst other things, be non-discriminatory in its outcome and have been based on a participatory decision-making process that was informed by appropriate impact assessments, with particular consideration given to vulnerable groups. This obligation, in part, mirrors state responsibilities under Article 194 of the United Nations Convention on the Law of the Sea to “prevent, reduce and control pollution of the marine environment”.
States are, furthermore, obliged to take immediate steps towards full realisation of the right to health, including developing, through a participatory process, a national plan on health-marine biodiversity linkages, including indicators to measure progress over time.
Over the long term, States should ensure that they employ “all appropriate means including particularly the adoption of legislative measures” to fulfil the right to health (Article 2(1), United Nations Covenant on Economic, Social and Cultural Rights), which would require an assessment of whether the current legal framework sufficiently takes into account the human health-marine biodiversity nexus. This would enable them to identify any gaps or other issues necessitating legislative reform. Notably, national legal frameworks should provide for:
- procedural environmental rights facilitating access to information, participation in decision-making and access to justice related to matters at the intersection of the human right to health and marine biodiversity. Widespread and informed public participation in decision-making plays a central role in avoiding discriminatory and otherwise unforeseen negative outcomes of decision-making processes;
- capacity-building initiatives to build general awareness of health-biodiversity linkages and facilitate informed participation in decision-making;
- integrated planning, impact assessment and decision-making processes which embody the One Health approach. This will necessitate institutional changes that foster closer collaboration between authorities relevant for health, ocean governance and environmental protection, and various legislative responses that, amongst other things, define and mandate integrated impact assessments and risk analyses for authorisation of public and private sector activities; and
- the development of indicators and monitoring frameworks with which to measure the effectiveness of their efforts to protect human health-marine biodiversity linkages and recalibrate their efforts as necessary.
Next steps in legal research
Throughout the remainder of my PhD research, I intend to further understanding of the content and limitations of these obligations, and to explore whether any precedent can be found under different facets of the right to health or international human rights law. I will then explore how these obligations apply in the context of specific international regulatory regimes for the protection of the marine environment, to assess whether they are capable of driving a break from business as usual.