We have prepared a legal note to contribute to consideration by the International Court of Justice of the request for an Advisory Opinion on the Obligations of States in respect of climate change, which expands on the arguments on the relevance of marine biodiversity science and international biodiversity law shared with the International Tribunal for the Law of the Sea (see also here and here). Among other things, the note expands our arguments on the legality of marine geo-engineering and carbon removal technologies, thanks also to conversations with other researchers in two workshops held in early December 2023. 

The Hub’s Legal Note to the International Court of Justice  

The Hub note to the ICJ focuses on the first question asked to the Court: What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations? In addition, it focuses on State obligations in relation to “people and individuals of the present and future generations” and Small Island Developing States, which are key term in the second question addressed to the ICJ. 

The Note presents scientific evidence on the importance of marine biodiversity for the ocean-climate nexus, which explains the relevance of the Convention on Biological Diversity and the BBNJ Agreement (at least as evidence of progressive development of the law of the sea), as well as international human rights law, to be interpreted in a mutually supportive manner with international climate change law. The Note then highlights the interlinkages between climate change law, the law of the sea and biodiversity law, specifically providing guidance on the obligations under each regime and on the measures to be implemented to ensure compliance with them. In particular, the Note focuses on:  

• the application of the ecosystem approach and precautionary principle to climate change technologies and deep-seabed mining;   
• the development and management of Area-Based Management Tools;  
• the conduct of Environmental Impact Assessments and Strategic Environmental Assessments; and  
• the social and ecological resilience to ocean acidification and coral bleaching. 

Finally, the Note turns to the interdependencies of the “climate system and of other parts of the environment” with human rights, clarifying which obligations under international human rights law are relevant to protecting the climate system and the environment, with a particularly emphasis on: Indigenous peoples and local communities, children, future generations and SIDS. The resulting State obligations are summarised at the end of this blog post. 

The Hub note was prepared by Elisa Morgera; Mitchell Lennan, University of Aberdeen; Alana Malinde S.N. Lancaster, The University of West Indies (Cave Hill Campus); Andrea Longo, Maria Ntona and Elaine Webster, University of Strathclyde; drawing on researcher carried out across the One Ocean Hub, including for our two special issues (see here and here). If you have any comments on the note, we would gratefully receive them. Kindly contact elisa.morgera@strath.ac.uk  

Scenario Workshop on Future Governance of Ocean-Based Negative Emissions Technologies 

Hub Director Elisa Morgera was invited to a hybrid scenario workshop on  Future Governance of Ocean-Based Negative Emissions Technologies on 30 November-1 December 2023, which aimed to identify opportunities for the global, comprehensive governance of ocean-based ‘negative emissions technologies’. The workshop was organised by the Research Institute for Sustainability – Helmholtz Centre Potsdam to develop good governance principles for ocean-based negative emissions technologies. 

Elisa was invited to deliver a 5-minute spotlight speech on human rights considerations, where she highlighted: 

• the moratorium on geo-engineering agreed upon under the Convention on Biological Diversity (CBD Decision X/33, para 8(w)), including for “associated social, economic  and  cultural  impacts” should be interpreted in the light of the human right to a healthy environment and relevant legally binding international human rights treaties; 
• before any deployment or testing of any other ocean-based negative emissions technologies, there is a need to consider potential negative impacts on biodiversity and ocean-dependent human rights; 
• good governance for these technologies needs to build upon the legally binding international obligations arising from procedural human rights (public access to information, public participation in decision-making, public access to justice and effective remedies, with higher standards when Indigenous peoples and other knowledge holders may be concerned); and 
• the human right to science is also relevant to clarify the obligations of States to regulate and fund research on climate technologies, as well as to shed a light on the responsibilities of scientists vis-à-vis human rights.  

Other presentations in the same session focused on:  the EU’s perspective on ocean-based negative emissions technologies; research on the social acceptance of these technologies; the logic of exploring complexities with Life Cycle Assessments; the challenges of measurement, reporting and verification/MRV related to ocean-based NETs; and the relevance of the BBNJ Agreement.  

In the ensuring conversation, Elisa Morgera underscored the need to integrate more critically findings and methods from different scientific disciplines involved in the discussions on climate technologies, and ensuring intra-disciplinarity from an international law and national law perspective, to ensure protection of the human right to a healthy environment at the intersection of international law on climate change, the ocean, biodiversity and human rights. 

In this connection, the following clarifications on State obligations in the Hub’s legal note are relevant: 

Apply the ecosystem approach, precautionary principle and human rights- to the design, implementation, financing, monitoring and review of climate, biodiversity and ocean policies, plans, and actions, including climate change adaptation and mitigation measures and “just transition” or “blue economy” policies, plans and actions. In particular, they must .

1. prioritise: drastically reducing greenhouse gas emissions; phasing out fossil fuels production and consumption; and implementing nature-based, including ocean-based, solutions (including removal of greenhouse gases by sinks, and renewable energy, as long as they do not negatively impact on biodiversity),  

2. refrain from funding and authorizing large-scale carbon dioxide removal actions that do not ensure avoidance of foreseeable harm to biodiversity and human rights; 

3. regulate and control contained, small-scale experiments of carbon dioxide removal technologies so that they are subject to environmental and human rights impact assessments, rigorous justification in terms of the need to gather specific scientific data, and public participation standards (access to information,  public participation in decision-making, free prior informed consent if negative impacts are foreseeable on Indigenous peoples and small-scale fishing and other communities, and access to justice and effective remedies); 

4. refrain from undertaking marine geo-engineering activities and deep-seabed mining until there is adequate scientific basis to ensure avoiding foreseeable harm to biodiversity and human rights;  

5. ensure the meaningful participation of human rights holders in relevant decision-making, including free, prior informed consent of Indigenous peoples where activities or foreseeable harm may involve sacred or traditionally used territories, and children 

Academic conference on the legal protection of carbon sinks in the fight against climate change 

Elisa Morgera was also invited to contribute to a hybrid academic conference on the legal protection of carbon sinks and the interactions between ecosystem protection and human rights organised by University College Dublin on 4-5 December 2023. Her presentation focused on the international law and the protection of the ocean as a carbon sink, sharing the key findings on the importance of marine biodiversity for the role of the ocean in the global climate cycle, as well as the limitations identified in the international climate change regime to contribute to ensure and finance the protection of the ocean for climate change mitigation and adaptation purposes and for the purposes of protecting human rights, including children’s human rights. 

In this connection, the following clarifications on State obligations in the Hub’s legal note are relevant: 

1. minimise activities that increase the vulnerability and reduce the resilience of biodiversity and ecosystems, and/or negative impacts on human health or other human rights, such as large-scale fisheries; 

2. In creating and managing area-based measures: 

a) undertake joint planning of protected area networks (for example transboundary fisheries management areas and MPAs modelled on the ecosystem approach where relevant), and integrate them into wider landscapes, seascapes and sectors through the use of connectivity and biodiversity restoration measures; 

b) integrate ecological and social resilience factors of coral reefs and closely associated ecosystems into the design and management of Marine Protected Areas networks, strengthening international, national and regional efforts to manage coral reefs as socio-ecological systems by reducing the impact of global and local stressors; 

c) ensure the genuine participation of all relevant human rights holders, including children and seeking the free prior informed consent of Indigenous peoples and local communities – in their design, implementation, financing, monitoring and review; 

3. With regard to EIAs and SEAs, and other planning processes: 

a) Assess risks of foreseeable harm to biodiversity and related socio-cultural and economic human rights associated with adaptation, mitigation and disaster risk reduction; 

b) take into account the status of biodiversity and its vulnerability to current and future climate change adverse impacts, including ecosystem services science, when planning and implementing adaptation, mitigation and disaster risk reduction strategies; 

c) require SEAs and EIAs for commercial large-scale fisheries policies, plans and projects; 

d) conduct EIAs with respect to the impact of activities in marine areas beyond national jurisdiction, duly considering consequences of climate change, ocean acidification and related impacts; 

e) support the conduct of regional SEAs with respect to the impact of activities in marine areas beyond national jurisdiction, duly considering consequences of climate change, ocean acidification and related impacts, and the need for marine scientific research at the genetic level; 

f) integrate relevant human rights holders, including children, as well as Indigenous peoples and local knowledge holders seeking free prior informed consent and ensuring fair and equitable benefit-sharing when sacred or traditionally used territories are at stake. 

Outlook 

We are now preparing a final submission on State obligations on climate change and human rights for the Inter-American Court of Human Rights, which is led by Alana Malinde S.N. Lancaster and combined contributes from other colleagues at the University of West Indies with Hub research. In that connection, we expect that the following State obligations discussed in our legal note to the ICJ will be further developed: 

1. Genuinely involve Indigenous peoples and local communities in the decision-making, financing, management, monitoring and review processes related to climate change responses, as knowledge- and human rights-holders subject to their free prior informed consent. In particular, States must :

a) promote community-based measures in reef-dependent coastal communities, with a view to maintaining sustainable livelihoods and ensuring food security in reef-dependent coastal communities; 

b) apply measures to maintain their sustainable livelihoods and ensure their food security, including by providing resources and capacity-building; 

c) enhance collaboration with Indigenous peoples and local communities in the conservation and management of biodiversity in cold-water areas; 

2. Carefully balance the interests of present and future generations when adopting climate change response measures, including by: 

taking appropriate preventive measures to protect children against reasonably foreseeable environmental harm and violations of their rights; 

ensuring their meaningful representation and participation in climate- and ocean-related decision-making processes.

3. With regard to SIDS, developed States must: 

a) prioritise climate change mitigation approaches that avoid threats to SIDS’ right to self-determination; 

b) assess potential transboundary environmental impacts and extraterritorial human rights impacts on SIDS of proposed climate change mitigation and adaptation measures; and 

c) prioritise international scientific and other forms of cooperation (notably country-driven funding, capacity building and technology co-development) towards nature-based solutions to climate change for integrated land-sea systems, with the genuine participation of Indigenous, Afro-descendant, and local communities, women and children, at the bilateral, regional and global level. 

Photo: NASA