The international obligations of States to address climate change in ocean decision-making have implications for inter-generational climate justice and a wide range of ocean-dependent human rights. Hub researchers have been involved in two online dialogues to reflect on the relevance of the Advisory Opinion of the International Tribunal on the Law of the Sea vis-à-vis the anticipated advisory opinions of the Inter-American Court of Human Rights and International Court of Justice.

Background: the ITLOS Opinion, Ocean-Climate Nexus & Human Rights

As part of our ongoing work on the ocean-climate nexus and human rights, the One Ocean Hub in June 2023 contributed a Statement to the Written Proceedings considered by the International Tribunal on the Law of the Sea (ITLOS) in the Request for an Advisory Opinion to clarify States’ climate change obligations. The Opinion was requested by the Commission of Small Island States on Climate Change and International Law (COSIS) in December 2022, with the purpose to clarify States’ obligations under the United Nations Convention on the Law of the Sea (UNCLOS) to prevent, reduce, and control pollution to the marine environment resulting from climate change.

On 21 May 2024, the ITLOS delivered its Advisory Opinion on the protection of the marine environment from pollution caused by climate change, which made history in international law, as the Tribunal clarified the legal obligations of States to address climate change as a crisis at the intersection of two critical global commons: the ocean and the atmosphere. In light of this ground-breaking development, the Hub and partners co-organised two rapid response webinars, to assess the significance and potential impact of the Opinion on human rights.

Advancing understanding of the ITLOS Advisory Opinion with Youth 

The first Webinar was held on 17 July 2024 entitled ‘ITLOS Advisory Opinion on Climate Change and the Law of the Sea: Impacts on Youth Climate Justice, International Law, and Human Rights,’ was co-organised with the World’s Youth for Climate Justice (WYCJ). The WYCJ is the global sister organisation of the Pacific Islands Students Fighting Climate Change, and as such, one of the movements who campaigned for the historic U.N. Request for an Advisory Opinion on Climate Change and Human Rights from the International Court of Justice. The Webinar, explored the implications of the ITLOS Opinion vis-à-vis the anticipated advisory opinions from the Inter-American Court of Human Rights and International Court of Justice. Hub researcher Mitchell Lennan (University of Aberdeen, UK) chaired the webinar and gave introductory remarks on the context of this Advisory opinion and its general relevance, as well as highlighting some key aspects of the Hub’s work.

Hub researcher Alana Malinde S.N. Lancaster (The University of the West Indies, Barbados) identified the following key messages including:

ITLOS decided not to engage in an elaborate discussion on human rights, apart from a nod to “human rights concerns”, but this reference is still important to evoke the extensive recognition of human rights, including the right to a healthy environment (Mardikian, 2023) which includes the ocean (Bennett, Morgera and Boyd, 2024), in the context of the ocean-climate nexus by other human rights bodies;

•The Inter American Court has incorporated children’s rights and youth climate justice into its jurisprudence, by integrating the UN General Comment 26 on children’s rights and climate change in its La Oroya case;

•As ocean-rich States (Frazão Santos et. al., 2022; Hume et. al., 2021; Chan, 2018) with on average twenty-eight times more ocean than their land mass (OHRLLS, n.d.), nature-based and ecosystem-based solutions are an important mechanism for mitigating climate change and are fundamental for Small Island Developing States (SIDS), both for promoting sustainable ocean-based economies (Antigua and Barbuda Agenda for SIDS (ABAS), para. 21 (iv)), and as part of the ridge to reef approach (R2R): the collective management of land-sea systems as a single unit (Lancaster, 2024);

•In addition to the legal obligations that arise at the ocean-climate nexus as elucidated by ITLOS, there is much scope for the Inter-American Court of Human Rights to clarify human rights standards with respect to the connections between land and sea in the context of climate change, by further developing a harmonious interpretation of the law of the sea and international biodiversity law, together with international climate change law and human rights law;

•Another critical synergy between ITLOS’ Advisory Opinion and the governance, management and conservation of the marine environment of the Wider Caribbean Region, relates to the rich coastal environments known as blue and teal carbon ecosystems, which were recognised in 2006 by the Intergovernmental Panel on Climate Change as important carbon sinks, which mediate interactions between land, sea, and estuarine ecosystems. Consequently, they are critical components of nature-based solutions  that should attract climate finance under mitigation, adaptation and loss & damage regimes.

The video-recording of this event can be found at here >>

Exchanging on Expectations for the Next Advisory Opinions

Hub researchers Alana Malinde S.N Lancaster and Elisa Morgera also participated in a second webinar, titled ‘Perspectives on the Advisory Opinion of the International Tribunal for the Law of the Sea and Opinion Proceedings before the Inter-American Court of Human Rights and the International Court of Justice on Climate Emergency: Ocean and Human Rights.’ The webinar  was aimed at the general public, and came out of conversations at the One Hundred and Sixty-sixth Regular Session of the Inter-American Court of Human Rights, held at the University of the West Indies (Barbados) in April 2024. The Hearings were a landmark event, and which was a  fertile space for civil society participation, including the Hub and many of the organisations which collaborated for the webinar.

Held on 31 July 2024, the webinar was spearheaded by the Centro para la Justicia Marina /Center for Marine Justice (formerly Observatorio para la Gobernanza), an NGO in Colombia dedicated to research, education, and support to local communities with regards to marine justice and climate action, coastal marine governance, artisanal fishing, and environmental education about the ocean. Their work is inspired by the principles of environmental sustainability and environmental justice, and respect for human rights. The webinar featured a diverse range of civil society organisations, community-based organisations and academic institutions working in the ocean and climate justice space, as well as the U.N. Special Rapporteur on the Human Right to a Clean, Healthy and Sustainable Environment, Astrid Puentes Raiño, and Zachary Phillips, who is a Representative of the Commission of Small Island States on Climate Change and International Law (COSIS).

As part of Panel 2, Elisa Morgera, in her capacity as U.N. Special Rapporteur on the Promotion and Protection of Human Rights in the Context of Climate Change, Zachary Phillips speaking on behalf  of COSIS, and Alana Malinde S.N. Lancaster of the Environmental Law, Ocean Governance & Climate Justice Unit of the Faculty of Law, The University of the West Indies (Cave Hill Campus) reviewed the impacts of the ITLOS Advisory Opinion on the protection of Small Island Developing States (SIDS) and the guarantees of the rights of coastal and island communities. The Panel also assessed the gaps left by the Opinion and what should be considered in future advisory opinions of the IACtHR and the ICJ.

Alana underscored that ITLOS substantially clarified the obligations to protect oceans from the drivers and impacts of climate change and underscored the importance of key principles such as due diligence, equity, the precautionary approach and the duty not to cause transboundary harm within the context of the UNCLOS framework, as well as in relation to the United Nations Framework Convention on Climate Change (UNFCCC) and Paris Agreement. She also identified entry points in the law of the sea to address human rights, such as the sustainable management of fish stocks using the cooperation and the precautionary approach (ITLOS, Advisory Opinion of 2 April 2015) and the newly minted BBNJ Agreement references to Indigenous peoples and local communities.

Additionally, while the Tribunal in their Opinion underscored that “… climate change is recognised internationally as a common concern of humankind … [which has had] … deleterious effects and … devastating consequences … on small island States, considered to be among the most vulnerable to such impacts.” (Advisory Opinion, para. 122). Alana anticipated that sooner rather than later, ITLOS will be called to revisit this relationship in more detail within the context of deep-seabed mining and the management of areas and biodiversity beyond national jurisdiction, where an interpretation of the international principles of equity and benefit sharing underpinning these UNCLOS implementing agreements will by necessity raise international human rights concerns.

Further, Alana indicated that the Inter-American Court has the opportunity to deepen and even expand its trailblazing pronouncements with respect to human rights and the marine environment, with reference to the Regional Seas Programme for the Wider Caribbean Region, international biodiversity law (through the Convention on Biodiversity), fisheries law (through Regional Fisheries Management Organisations (RFMOs)  and Large Marine Ecosystems (LMEs)), and climate law, through nature-based solutions under the UNFCCC and Paris Agreement (see the Sharm El Sheik Implementation Plan, para. 52; and the UAE Consensus, paras. 55 and 63 (d)).

Further, the Inter-American Court can advance its Inter-American principles on business and human rights at the ocean-climate nexus (see the Miskito Divers and Vera Rojas cases), as well as providing guidance for furthering economic, social, cultural and environmental rights at the ocean-climate nexus. Significantly, in the Latin American and Caribbean Region, this will include interpretation of obligations under other instruments such as the Escazú Agreement, the Protocol of San Salvador and within the CARICOM Caribbean, the CARICOM Charter for Civil Society. 

Outlook

Work on the ocean-climate nexus and human rights will continue through Alana’s contribution to initiatives of the Office of the Inter-American Special Rapporteur on Economic, Social, Cultural and Environmental Rights (REDESCA) in regard to the priorities of the 2024 – 2026 Work Plan. On 29 August 2024, Alana further participated as a Panellist at a virtual workshop on ‘Climate Justice and Human Rights in the Caribbean: Loss and Damage, Debt, and Financial Policies’ organised by the Inter-American Special Rapporteur.

In addition, in relation to ongoing work on children and youth at the ocean-climate nexus, Alana will also attend an international conference in September 2024, organised by University College Cork on ‘Child/Youth-friendly Climate Justice: Progress and Opportunities, which will provide opportunities to reflect on the ocean-climate nexus and children’s human rights (see also here), including on the basis of the Hub’s submissions to the Inter-American Court of Human Rights (see also here) and the International Court of Justice.

Hub experiences with respect to the advisory opinions and climate justice will also be captured across several forthcoming publications by Hub researchers. Elisa, Alana, Mitchell and Britney Nurse will publish their work on the three advisory opinions in an upcoming book chapter. Alana has also been invited to contribute an essay on this theme to a book spearheaded by the NGO Fiscalía del Medio Ambiente (FIMA) and the Center for Environmental Law at the University of Chile, and supported by the Foundation for International Law for the Environment (FILE).  Alana and Elisa will also pen chapters for the upcoming Edward Elgar Research Handbook on Climate Justice, co-edited by Dina Lupin, Alana Malinde S.N. Lancaster, Maria Antonia Tigre, and Avleen Kohli.