The One Ocean Hub made a submission to the International Tribunal on the Law of the Sea, which has been requested to clarify States’ obligations to protect the marine environment from climate change, including as part of the general obligations to prevent, reduce and control marine pollution. We shared our latest research on mutually supportive interpretations of the law of the sea, international climate change law, international biodiversity law and international human rights law, which is supported by inter-disciplinary findings from the marine and social sciences on the role of marine biodiversity to contribute to climate change mitigation and adaptation. In spite of the interconnectivity between the climate, the ocean and biodiversity, and their interdependency with human rights, their respective applicable legal frameworks are fragmented and the Tribunal has an unprecedented opportunity to clarify how these obligations should be read together to direct States to more integrated and inclusive action at the ocean-climate nexus. 

Background  

Antigua and Barbuda, Niue, Palau, Saint Lucia, Tuvalu and Vanuatu formed the Commission of Small Island States on Climate Change and International Law and requested on 12 December 2022 an advisory opinion from the International Tribunal for the Law of the Sea (ITLOS) on the following questions: 

“What are the specific obligations of State Parties to the United Nations Convention on the Law of the Sea to: 

• to prevent, reduce and control pollution of the marine environment in relation to the deleterious effects that result or are likely to result from climate change, including through ocean warming and sea level rise, and ocean acidification, which are caused by anthropogenic greenhouse gas emissions into the atmosphere?  
• to protect and preserve the marine environment in relation to climate change impacts, including ocean warming and sea level rise, and ocean acidification?”  

In parallel, the International Court of Justice has been asked to both clarify States’ obligations regarding climate change, and their legal consequences vis-à-vis other States and peoples and individuals of present and future generations. And the Inter-American Court on Human Rights has been required to clarify States’ obligations to protect human rights from the negative impacts of climate change. 

The Hub’s contribution 

Several Hub partners and have also made submissions to ITLOS, such as the United Nations Environment Programme (UNEP),  International Union for the Conservation of Nature (IUCN), the Food and Agricultural Organisation of the United Nations (FAO) and World Wide Fund for Nature (WWF). It is also noteworthy that a joint submission was submitted by the United Nations Special Rapporteurs on Human Rights & Climate Change, Toxics & Human Rights and Human Rights & the Environment.  

The Hub’s submission focused on: 

• underscoring the importance of biodiversity science as part of the ocean-climate science, including latest findings and continued uncertainties in deep-sea biodiversity science and its ecosystem services for climate mitigation, but also human wellbeing, and this should be taken into account in the application of the precautionary principle at the ocean-climate nexus;  

• clarifying the obligations of States parties to United Nations Convention on the Law of the Sea (UNCLOS) and the Convention on Biological Diversity at the ocean-climate nexus, taking into account also relevant international human rights law obligations; 

• suggesting a mutually supportive interpretation of existing international law to contribute to the protection of the marine environment, with particular attention to preventing loss and degradation of marine biodiversity and ecosystem services, as well preventing negative impacts on the human rights of ocean-dependent communities and everyone’s human right to a healthy environment; 

• reflecting on the innovations of the BBNJ Agreement (biodiversity beyond national jurisdiction) on States’ obligations to cooperate at the ocean-climate nexus and consider human rights impacts; 

• underscoring that the 196 Parties to the Convention on Biological Diversity adopted a series of decisions by consensus interpreting international obligations to conserve and use sustainably marine biodiversity with a view to contributing to climate change mitigation and adaptation, as well as take a precautionary approach towards climate change response measures that risk having a negative impact on biodiversity and human rights; 

• the need for specific attention to children’s human rights as part of considerations of inter-generational equity at the ocean-climate nexus. 

Next steps 

The Hub’s submission to ITLOS integrated several research findings from the Hub-led special issue of The International Journal of Marine and Coastal Law on the ocean-climate change nexus and human rights, which is about to be published online.  

In addition, we are working on a new research papers on the: 

• relevance of marine ecosystem services science for the precautionary principle at the ocean-climate nexus; 
• need to take action at the national level to connect the integration of ocean-based climate action in Nationally Determined Contributions and marine spatial planning (MSP), taking into account existing shortcomings in MSP processes from a human rights perspective;  
• opportunities to direct climate finance and other development finance to the ocean through a human rights-based approach, including a children’s rights-based approach.  

We will publish an analysis of the submissions made to ITLOS, with a view to better understanding if there are any gaps in scientific and legal arguments related to the ocean-climate-biodiversity-human rights nexus. In addition, we will publish, in August 2023, a series of short legal briefs on the relevance of our inter-disciplinary research findings to the attention of the international tribunals that are addressing these crucial questions later in 2023. 

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