Brainstorming on new UN guidance on economic, social and cultural rights and sustainable development
Can the International Covenant on Economic, Social and Cultural Rights impose obligations of restraint in the use of natural resources to ensure sustainable development? Considering planetary boundaries and the need to ensure intra- and inter-generational equity, are there limits to the progressive realisation of economic, social and cultural rights, and the continuous improvement of living conditions? These were some of the questions that the UN Committee on Economic, Social and Cultural Rights discussed on 24 February 2023, during a general discussion on developing a new UN guidance on economic, social and cultural rights and sustainable development. The One Ocean Hub participated in this conversation and is preparing a written submission to contribute to this crucial development under international human rights law, to ensure that the ocean, blue justice and ocean-dependent human rights, including those of small-scale fishers, women, children and ocean defenders, are not overlooked.
The discussion paper to support the exchange at the general discussion set the background as follows:
“As it predates relevant developments in international law and policy, the International Covenant on Economic, Social and Cultural Rights (ICESCR) does not explicitly refer to sustainable development or incorporate environmental considerations. In order for the Covenant to respond adequately to contemporary challenges of unequal economic and social development and the challenges posed by global environmental threats which threaten to undermine the economic, social and cultural rights, the Covenant must be interpreted as a “living instrument”. The Covenant should be interpreted to ensure that it remains effective in achieving the object and purpose of realising economic, social and cultural rights. Where environmental degradation and unsustainable development pose a significant threat to this aim, the Covenant should be interpreted in such a way as to allow the achievement of its goal. In other words, the object and purpose of the Covenant cannot be effectively achieved without consideration of all three pillars of sustainable development – the economic, social, and environmental dimensions.”
Many of the key questions addressed in the discussion paper are relevant for the ocean and ocean-dependent human rights:
- what does the Covenant require of states concerning the prevention of foreseeable environmental harm? What factors should guide an assessment of foreseeability and probability concerning environmental harm? What is the role of science and data in this respect? These are crucial questions also for the role of the UN Decade for Ocean Science and the Intergovernmental Science-Policy Panel on Biodiversity and Ecosystem Services (IPBES)
- How can the Covenant obligations help ensure that climate change strategies and policies promote a more equitable society and do not lead to deepening inequality, marginalisation, and disadvantage of groups already in vulnerable situations? This is a crucial question also for the emerging ocean-based climate action and will be addressed in more depth in the forthcoming special issue led by the Hub on the ocean-climate-human rights nexus
- Given the disproportionate burden on women of poverty and of environmental degradation, how should the obligation of gender equality be integrated with all measures taken by states parties to achieve sustainable development? This question connects to the recent report on gender of the UN Special Rapporteur on Human Rights and the Environment, and the Hub submission on women and the ocean.
- How can children’s rights assist in informing a long-term view of environmental impacts on human rights, and inter-generational equity, which are key questions already addressed by the One Ocean Hub as part of its partnerships with the Children’s Environmental Rights Initiative;
- What measures should be taken by States to protect Indigenous peoples and peasants and other people working in rural areas from other environmental threats? What measures should be put in place in order to incorporate the Indigenous and local in the strategies to achieve sustainable development? These are under-studied questions related to marine areas and resources, which are being illuminated by the Hub’s art-based approaches (see also here and here)
- Given the extensive impact environmental degradation has on human rights, what role should environmental impact assessments play, which is a key question with regard to large-scale fisheries and more generally for the protection of the human rights of small-scale fishers against other unsustainable practices.
- Given the recognition that there are clear ecological limits to the use and consumption of natural resources, how can the concept of “maximum available resources” for the progressive realization of economic, social and cultural rights be applied to sustainable development, also to ensure priority attention to those who currently most lack access to economic, social, cultural and environmental resources?
One Ocean Hub’s contributions
It is interesting to note that the discussion paper also raises the question of what level of consultation and engagement is expected with affected communities from private or public actors concerning the exploitation of natural resources, and whether these obligations extend to the exploitation of marine life.
During the general discussion, Hub Director Elisa Morgera made the following remarks:
- The need to include threats arising from blue economy initiatives on economic, social and cultural rights (as we have shared with the UN Special Rapporteur on Cultural Rights), and the expectations they create for foreign investors, which may limit the ability of States to protect ocean-dependent human rights;
- The opportunity to build on guidance adopted by consensus by the 196 parties to the UN Convention on Biological Diversity on the ecosystem approach, as it can support the protection of the human rights of Indigenous Peoples and small-scale fishers;
- The need to clarify obligations on strategic environmental assessments of proposed laws, policies and programmes, to ensure considering of systematic and historical causes of marginalization and the impacts of climate change;
- The need to consider the role of international ocean governance in addressing questions related to human rights and sustainable development, including the WTO Fisheries Subsidies Agreement;
- The need to clarify that the human right to science and the duty of international cooperation require technology co-development, as opposed to technology transfer, and mutual capacity building;
- The role of the protection of ocean-related cultural rights and art-based approaches as a way to co-develop knowledge, on foreseeable human rights impacts and supporting generative dialogues for transformative governance towards inclusive and truly sustainable development.
The One Ocean Hub looks forward to preparing a written submission, and collaborating with its partners, when the UN Committee on Economic, Social and Cultural Rights will release the zero draft of its General Comment on economic, social and cultural rights and sustainable development later in 2023.
Artwork: Elisa Morgera