Exploring Law and Development from An Ocean Perspective’
The Fifth Annual Conference of the Law and Development Research Network (LDRN) – “Beyond the Crisis: Challenges and Opportunities for Law and Development” was hosted online by Nelson Mandela University Faculty of Law, South Africa, on 24 – 26 November 2021. The Conference’s aim was to explore the meaning, causes and consequences of the role of law in development, and seek to identify appropriate responses and opportunities from the network of researchers and practitioners in law and development. The Conference supported the law and development community in engaging in discussions from both mainstream and critical perspectives on the role of law– both domestic and international – in relation to development and governance. Emphasis is placed on how the role of law is perceived globally and locally and is therefore concerned with the social functioning of legal systems primarily in the context of countries in the Global South. In this regard, the Network is keen to expand to encompass more institutions from the Global South, as well as increased linkages between South-South and South-North members.
The Conference featured several keynotes which posed contemporary and forward-thinking issues, such as the response of the law to the COVID-19 pandemic, the challenges of law in development scholarship and the potential for environmental jus cogens. These progressive perspectives are mutually reinforcing with those of the One Ocean Hub’s thriving community of practice. Consequently, several of our One Ocean Hub researchers collectively contributed 10 papers addressing a variety of issues related to inclusive, integrated, and sustainable ocean governance at different scales (national, regional, and international), including from a human rights perspective.
In addition to supporting opportunities for North-South and South-South discourse, the Hub’s contributions were also noteworthy to expand the focus of the law and development research community beyond terrestrial issues. The Hub’s contributions, collectively, underscored the need to include a greater focus on ocean-centric research on the role of law in development. Equally, this paradigm shift can be an excellent vehicle to raise awareness about the unique law-and-development challenges arising from ocean governance and management.
This blog post seeks to showcase the key areas of research shared by Hub researchers, which would benefit from further engagement with the law and development research community.
Our first series of presentations enabled Hub researchers in Namibia, South Africa, and Ghana to share latest findings on implementing the SDGs and international human rights standards in ocean governance.
‘Imprisonment as a sanction for illegal fishing: A Namibian perspective’ by Hashali Hamukuaya (Nelson Mandela University, South Africa) focused on the problem of illegal fishing activities in Namibia’s territorial sea and Exclusive Economic Zone and the extent to which Namibia is permitted in terms of the UN Convention on the Law of the Sea to use its coastal jurisdiction, flag State jurisdiction, and personal jurisdiction to prescribe imprisonment as a sanction for illegal fishing.
‘Ocean capture? Ocean management and transformation in South Africa’ by Dr Bernadette Snow (University of Strathclyde, UK), Professor Rosabelle Boswell (Nelson Mandela University, South Africa) and Professor Elisa Morgera (University of Strathclyde, UK) highlighted the discrepancy between, on the one hand, the South African government’s blue economy policy and its ratification of international climate change agreements, and, on the other hand, continued investment in natural resource extraction, including for fossil fuel production. The paper questioned whether South Africa’s ocean is at risk of being ‘captured’ in the same manner as other critical natural assets have been, undermining opportunities for sustainable, inclusive and transformed ocean governance.
‘Tackling the challenges confronting women in the Elmina fishing community of Ghana: a human rights framework’ by Dr Harrison Golo (University of Education, Ghana) and Dr Bolanle Erinosho (University of Cape Coast, Ghana) drew from interviews conducted in a coastal small-scale fishing community in the Central Region of Ghana, that unearthed the challenges facing women in the small-scale fisheries sector linked to their marginalisation in decision-making processes on the issues affecting the fisheries sector. Dr Golo and Dr Erinosho indicated how this research provides a clear direction for applying the international human rights framework to improve the inclusion of women in small-scale fisheries resources management in Ghana.
The One Ocean Hub spansfour diverse, distinct regions, which share as many differences as they do commonalities. This is one of the strengths of the Hub, as there is an exchange of research and learning among members. At the Conference, Hub researchers from Africa and the Caribbean offered two presentations which highlighted the similarities, differences, and scope for exchange of scholarship focused on ocean-centric law and development issues. Both presentations also highlighted the strong linkages between human rights and the socio-cultural, environmental, and economic dimensions of the marine environment, especially for small island developing states (SIDS).
‘Africa Union and the Challenge of Sustainable Marine Tourism’ by Dr Tajudeen Sanni (Nelson Mandela University, South Africa) underlined how sustainable marine tourism which considers the cultural, environmental and economic contexts can help deal with concerns such as marine litter and erosion of local cultures. The paper further examined the extent to which relevant African continental instruments such as African Charter for Maritime Safety, and Security, and Development 2016 and African Integrated Maritime Strategy 2013 contain provisions that can facilitate realisation of sustainable tourism and contribute to the realisation of cultural, environmental, and economic objectives of Agenda 2063 in African Union member countries.
‘Climate change, COVID-19 & coastal communities in the Caribbean: a renewed role for international environmental & human rights law? By Dr Alana Malinde S.N. Lancaster (University of the West Indies, Barbados, the Caribbean) examined the struggles of Small Island Development States (SIDS) in the Caribbean in facing environmental governance threats. Dr Lancaster noted that recent developments in human rights-based approaches to climate action at the international and regional levels, constitute opportunities through which states vulnerable to climate change, can individually, and collectively pursue vital action through international co-operation, including the recent recognition by the Human Rights Council of the right to a safe, clean, healthy, and sustainable environment as essential for the fulfilment of other human rights, the implications of the decision to create a UN Special Rapporteur on human rights and climate change, and the entry into force in the Latin America and the Caribbean region of the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, also known as the Escazú Agreement.
Another are of innovation within the Hub is the ability of its members to influence policy and legal practices at the global level, in collaboration with our advisors and international partners such as FAO and UNEP, to name a few. During the Conference, our researchers addressed three thorny issues under international law: the rights of the ocean, the integration of fisheries-related human rights issues in environmental impact assessments and strategic environmental assessments, and the links between ocean health and human health.
‘Sea-ing Persons: Personhood, Human Rights, and the Future of the Marine Environment’ by Dr Laura Major and Dr Elaine Webster (University of Strathclyde, UK) stressed the importance of connecting humanity to the ocean in light of the environmental urgency of respecting marine environment. They further noted that to better connect humanity to the ocean, we need to reflect on, and reflect, different ways in which personhood is associated with ocean space. Such reflection is helpful for understanding the capacity of international law narratives to engender respectful relationships between people and the marine environment. They argue that international human rights law has done relatively and uniquely well at ‘sea-ing’ persons, and as part of this paper they began to explore if, and how, the potential of international human rights law might be realised.
‘The need for environmental and socio-cultural impact assessment for large-scale fisheries’ by Associate Professor Daniela Diz (Heriot Watt University), Julia N. Nakamura and Professor Elisa Morgera (University of Strathclyde, UK) aims to clarify the extent to which the international legal requirements for environmental impact assessments and strategic environmental assessments entail the assessments of potential social and cultural impacts from large-scale fisheries and related policies, plans and programmes. They explored the opportunities to interpret relevant obligations under the law of the sea in combination with human rights and biodiversity legal instruments, principles, and approaches, in support of integrated impact assessments for large-scale fisheries, which aim at preventing and/or addressing negative impacts on both the environment and human rights of affected communities.
‘Ocean Science Decade, the One Health approach and the SDGs’ by Claire Lajaunie (Inserm, LPED (Population-Environment-Development Laboratory), France) and Pierre Mazzega (CNRS, LISST (Interdisciplinary Solidarity, Societies, Territories Laboratory), France) shed new light on the gaps between the ongoing One Health scientific research and the goals of the UN Ocean Science Decade. An analysis of the interlinkages between ocean-related concepts and governance-related concepts shows how the implementation of the One Health approach of ocean health may contribute to the improvement of the dialogue between science and policy/law.
Marine areas beyond national jurisdiction are the last frontiers for humankind to understand and the seabed may be the most mysterious of all. With increasing pressure to exploit the resources in these areas of the ocean, it is therefore no surprise that the exploration of the seabed is increasingly occupying the attention of international lawyers to ensure that environmental sustainability and potential impacts on human rights are adequately addressed.
‘Transparency at the International Seabed Authority – matter of international human rights obligations, not just good practice? by Professor Elisa Morgera (University of Strathclyde, UK) and Hannah Lily (Independent Consultant, UK) assessed the current practices, and content and extent of binding international obligations for member States of the International Seabed Authority (ISA) to ensure transparency in its regulatory, management, and monitoring functions. Their paper discussed current approaches to transparency and stakeholder engagement under the ISA against the background of the international law on the protection of the marine environment in the context of the Area. The analysis drew on the importance of the precautionary principle, of ecosystem services for the protection of human rights, and of procedural human rights standards for the common heritage of humankind.
‘The implications of deep seabed mining for the human right to health’ by Graham Hamley (University of Strathclyde, UK) stressed that the potential implications of deep-seabed mining for human health have been largely neglected. He advocated engaging a wider audience in the ongoing negotiations of regulations of deep-seabed mining considering deep-seabed mining as not only an environmental issue, but also a human rights issue, with a view to unlocking of understanding of the state obligations arising from the right to health in the context of the management of the marine environment in areas beyond national jurisdiction.
The One Ocean Hub also wishes to congratulate and thank our colleagues at Nelson Mandela University, South Africa, for hosting the Law & Development Network’s Fifth Conference!
Photo: Thomas Hilmer