The University of the West Indies (UWI) and the One Ocean Hub have made a Submission to the Inter-American Court of Human Rights, to provide inputs into the development of its advisory opinion to clarify State obligations at the ocean-climate nexus. This Blog Post explains what the Inter-American Court was requested to consider, and the key points made in the joint submission by the UWI and the Hub.

Background

On 9 January 2023, Chile and Colombia made a joint Request to the Inter-American Court of Human Rights to clarify the scope of State obligations in response to the climate emergency in their individual and collective dimensions. The Request is a 14-page document which includes an introduction, a description of the effects of the climate emergency on human rights, a justification for having ‘Inter-American Standards’ to respond to the climate emergency in the Latin America and Caribbean Region. Within this context, the Request comprises twenty-one questions, focusing on the obligations related to due diligence, the right to life, children’s human rights, procedural rights, environmental human rights defenders, and common but differentiated responsibilities. All questions explicitly and implicitly seek clarification on how climate mitigation, adaptation, and loss and damage relate to human rights obligations (Auz and Viveros-Uehara, 2023), and draw on the Court’s remit under the American Convention on Human Rights (the Pact of San José) and  its Additional Protocol in the Area of Economic, Social and Cultural Rights (the Protocol of San Salvador).

One Ocean Hub Researchers Alana Malinde S.N. Lancaster (Head of the recently inaugurated Environmental Law, Ocean Governance & Climate Justice Unit of the UWI Faculty of Law, Cave Hill Campus) led a joint submission together with Elisa Morgera, Andrea Longo and Mitchell Lennan. Alana also garnered support by legal scholars from organisations active in climate justice in the Caribbean and Latin American Region, including Renew TT (Britney G. Nurse), the Global Network for Human Rights and the Environment  and the International Law Association, Caribbean Branch (Sanya Alleyne).

The Joint Submission expanded on the submissions already prepared by Hub Researchers on the relevance of marine biodiversity, science and international biodiversity law to the International Tribunal for the Law of the Sea (see also here and here and here) and the Legal Note prepared for consideration by the International Court of Justice of the request for an Advisory Opinion on State obligations in respect of climate change. Additionally, in November 2023, the Environmental Law, Ocean Governance & Climate Justice Unit (Alana and Britney) contributed to the Call for Comments to the ‘Study on the Impact of Climate Change on Human and Peoples’ Rights in Africa’ by the African Commission of Human and Peoples’ Rights.

Key Points Made in the Joint Submission

The Joint Submission utilised the opportunity to clarify and further develop aspects specific to the Inter-American system, with particular emphasis on Afro-descendant, Indigenous peoples and local communities, children, future generations and small island developing states (SIDS). Applying  this lens was especially critical given the Court’s landmark 2017 Advisory Opinion on the human right to a healthy environment. This decision was rendered within the context of addressing the impact of infrastructure projects on the coastal marine environment in relation Convention Area of the Regional Seas Programme for the Wider Caribbean Region, and international obligations concerning prevention, precaution, mitigation of damage, and cooperation between the States potentially affected.

Consequently, the joint submission presented scientific evidence on the importance of marine biodiversity for the ocean-climate nexus, within the context of a suite of legal instruments including the Convention on Biological Diversity and the BBNJ Agreement (at least as evidence of progressive development of the law of the sea), and the Cartagena Convention and its Protocols (Lancaster, 2013, 137) that had already been referenced in the 2017 Advisory Opinion. These instruments were complemented by international human rights law, and are to be interpreted in a mutually supportive manner with international climate change law and principles of international law, such as the application of the ecosystem approach and precautionary principle to climate change.

Within this context, we proposed that the primary measures that States need to undertake to minimise the impact of the damage arising out of the climate emergency, include the:

• the development and management of Area-Based Management Tools (ABMTs);

• the conduct of Environmental Impact Assessments and Strategic Environmental Assessments; and

• the control of technologies.

The Submission further presented principles and approaches related to the duty of protection and the guarantee of human rights at the ocean-climate nexus, as well as considerations for implementing these obligations and principles which should inspire adaptation, mitigation and loss and damage measures in Latin America and the Caribbean. Additionally, the Amici highlighted the State’s obligation to preserve the right to life and survival, and underscored the importance of information, education, participation in decision-making and access to justice to protecting human rights. On this latter point, the role of the Escazú Agreement (the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean) in linking environmental and human rights, especially in the case of children and new generations in light of the climate emergency, was emphasised within the context of emerging Inter-American standards on business, human rights and climate change.

Further, we underscored those obligations to environmental, climate and ocean defenders (see also here, here and here), including child ocean defenders (see also here), as well as women, Indigenous and Afro-descendant peoples are especially critical in the Latin America and Caribbean, given that social and economic conditions are fraught with peril, still drastically unequal and there are large information and recognition gaps that affect their rights across the Region within the context of the climate emergency.

Emphasis on SIDS

The Joint Submission emphasises the particular importance for clarifying obligations under international human rights law to protecting the climate system and the environment for vulnerable populations in SIDS. There are sixteenSIDS within the Latin America and Caribbean Region, who face greater vulnerability than their other Latin American counterparts and are recognised as a special case both for their environment and development, as well as under the law of the sea. SIDS share a common history of colonialism and resource extraction which have bequeathed unique climate change challenges, despite their exceedingly rich in terrestrial biodiversity. The Joint Submission thus emphasised that SIDS have relied heavily on their coastal marine resources, such as fisheries and tourism for centuries, and these resources are fundamental to their current blue economy trajectories.

Further, like their Latin American counterparts, SIDS also possess diverse coastal marine environments comprising blue and teal carbon ecosystems, which have been recognised since 2006 by the Intergovernmental Panel on Climate Change as important carbon sinks. Additionally, we highlighted that the size and geographical characteristics of SIDS make them integrated land-sea systems, which require management as a single unit under the concept of the ridge to reef approach. Finally, SIDS in the Caribbean are primarily large ocean states, and the lion’s share of their sovereign natural resource capital resides in their continental shelves and exclusive economic zones which are on average, twenty-eight times their land mass. Overwhelmingly therefore, the Amici were keen to underscore that consideration of the obligations of States in the climate crisis within Latin America and Caribbean Region, will need to acknowledge that this group of States “faces unique social, economic, and environmental vulnerabilities.” However, while SIDS share many similarities, there is also a degree of diversity, which requires place-specific and culturally specific adaptation responses in developing ‘Inter-American Standards’ to respond to the climate emergency.

Outlook

The Hub continues various strands of research at the ocean-climate nexus, and ongoing collaboration with The UWI Environmental Law, Ocean Governance & Climate Justice Unit on areas that are mutually supportive of the scope of State obligations at the ocean-climate nexus in response to the climate emergency in Latin America & the Caribbean.