The First Hub special issue is out, drawing focus on The ocean, sustainable development and human rights

By Elisa Morgera and Patrick Vrancken

The One Ocean Hub is pleased to announce that we have published the first special issue of an international peer-reviewed journal as a collective endeavour across Global South and Global North researchers at different stages of their career. The special issue is focused on the ocean, sustainable development and human rights and appears in the Review of Comparative, International, and European Environmental Law.

The issue provides a snapshot of some of the most recent research findings from the Hub’s pioneering research on human rights and the marine environment, to support fair and inclusive decision-making for a healthy ocean allowing both people and planet to flourish. The special issue takes stock of some of the persistent and emerging threats to the protection of the marine environment and explores different international law responses at the regional and global levels, with a view to identifying gaps and shortcomings that represent significant barriers to the sustainable development of the ocean. The special issue then relies on the interdependencies of human rights and the marine environment as a lens for analysis, as well as a source of inspiration to suggest potential solutions to some of the key challenges singled out at the 2022 UN Ocean Conference.

Background

Based on ongoing inter- and transdisciplinary research and fair partnerships under the One Ocean Hub, our legal research contributes to answering the question of the nature and scope of transformative change we need to protect the ocean and all the essential benefits that humanity derives from it. The special issue does so by focusing on how international human rights law can support transformative interpretations of the law of the sea and international environmental law. There is nothing in the international law of the sea that stands in the way of States, when they exercise their coastal State jurisdictions, flag State jurisdiction or personal jurisdiction, for instance, complying with their international human rights law duties in the exercise of their authority in ocean-related matters. In fact, it appears increasingly difficult to interpret the law of the sea in isolation from the recent international and national law developments on the interdependence of international human rights law and international environmental law, which culminated—but were not exhaustively represented—in the UN General Assembly’s recognition of the international human right to a healthy environment.

Small-scale fishers’ human rights

One of the most prominent features of the UN Ocean Conference was the increased attention to small-scale fishers, thanks also to the concurrent International Year of Artisanal Fisheries and Aquaculture led by the UN Food and Agriculture Organization. Drawing on our growing collaboration with FAO, the UN Office of the High Commissioner for Human Rights and other international partners on small-scale fishers’ human rights, the special issue includes three articles to advance legal thinking and practice in this area.

The article by early-career researcher Nakamura (Strathclyde University), Diz (Heriot-Watt University) and Hub Director Morgera titled ‘International Legal Requirements for Environmental and Socio-cultural Assessments for Large-scale Industrial Fisheries’, contributes to a reflection on how international law needs to be interpreted in a mutually supportive manner to effectively protect the rights of small-scale fishers. In particular, it unveils, through interpretations of the law of the sea, international biodiversity law and international human rights law, an international obligation to carry out, at the national level, strategic and impact assessments of large-scale fisheries laws, policies, programme and projects from a combined environmental and socio-cultural perspective.

As far as it is concerned, the article by Golo, Ibrahim and Erinosho (Cape Coast University, Ghana) titled ‘Integrating Communities’ Customary Laws into Marine Small-scale Fisheries Governance in Ghana: Reflections on the FAO Guidelines for Securing Sustainable Small-Scale Fisheries’ underscores the complexities and challenges of protecting the human rights of small-scale fishers in a normative environment where laws adopted through formal processes by State legislative institutions co-exist with coastal communities’ customary laws, which are recognized for their bio-cultural value under international biodiversity and human rights law Golo, Ibrahim and Erinosho also offer initial insights into questions related to the protection of the human rights of women fishers and the recognition of their leadership role in sustainable fisheries. These are essential considerations for the commitment in the 2022 political Declaration to empower women and girls in progressing towards a sustainable ocean-based economy and to achieving SDG 14.

What these two articles underscore (as the whole special issue does) is the importance of policy coherence (SDG 17.14) for the effective protection of human rights in relation to ocean conservation and sustainable use, as illustrated by the new agreement under the World Trade Organization (WTO) on fisheries subsidies. This is the focus of the article by Switzer, Morgera and Webster (Strathclyde University), titled Casting the Net Wider? The Transformative Potential of Integrating Human Rights into the Implementation of the WTO Agreement on Fisheries Subsidies’. The article explores the relevance of the new WTO Agreement on Fisheries Subsidies from the perspective of human rights, underscoring existing international obligations for WTO members to ensure that the removal of subsidies, as well as the redistribution of funds arising from that removal, does not lead to violations of the human rights of small-scale fishers but, instead, contributes to the better protection and full realization of those rights.

Deep-seabed mining

Another prominent issue (and, according to many, an area of progress) at the UN Ocean Conference was the political momentum gained around a moratorium on deep-seabed mining, which was the priority for youth representatives (see here and here). The article by Hub Director Morgera and external researcher Hannah Lily titled Public Participation at the International Seabed Authority: An International Human Rights Law Analysis, provides a critical and in-depth analysis of the right to effective participation in the international decision-making body on deep-seabed mining beyond the maritime zones of coastal States, the International Seabed Authority (ISA). The right to effective participation is understood as an element of the human right of children and youth, indigenous peoples and other cultural rightsholders as well as the general public to a healthy environment. The authors identify the multi-layered content of the international obligations of the ISA member States to ensure public participation in the ISA proceedings as well as to ensure the consideration and protection of relevant human rights as part of their collective decision-making processes.

As a substantive complement to this (mainly procedural) analysis, the article by early-career researchers Hamley (Strathclyde University), provides an innovative analysis of the duties under the law of the sea in relation to deep-seabed mining from the perspective of the human right to health and its dependency on healthy marine ecosystems that can be irreparably damaged by deep-seabed mining. The article, titled, ‘The Implications of Seabed Mining in the Area for the Human Right to Health’, provides further clarity, by way of systematic interpretation, on the obligations that ISA Member States have to ensure the protection of the marine environment under the ISA to the benefit of humankind.

BBNJ

Another expected area of interest at the UN Ocean Conference concerned the ongoing negotiations of a new treaty on marine biodiversity of areas beyond national jurisdiction (BBNJ). In that regard, the 2022 political declaration calls for ‘an ambitious agreement without delay’. The article by early-career researcher Wagenaar (Nelson Mandela University, South Africa) titled ‘A Principled Approach for BBNJ: An Idea Whose Time Has Come’ provides an analysis of the role of two general principles of international environmental law (the precautionary principle and the ecosystem principle) in the BBNJ agreement with a view to addressing the serious threats both to marine biodiversity and to the human rights which dependent on it.

The whole special issue was supported by early-career researcher Tajudeen Sanni (Nelson Mandela University, South Africa), building on presentations made earlier in the year at the Mandela University-hosted conference on law and development.

Our next special issue

To complete our assessment of the Lisbon Ocean Conference from a human rights perspective, it should also be mentioned that there were no detailed calls in the 2022 political declaration about scaling up ocean action under the Paris Agreement and the Glasgow Climate Pact. This is surprising as the political declaration did express alarm about the effects of climate change on the ocean, from rise in ocean temperatures, ocean acidification, deoxygenation, and sea-level rise, to the decrease in polar ice coverage, coastal erosion and extreme weather events, shifts in the abundance and distribution of marine species, including fish, the decrease in marine biodiversity and related impacts on island and coastal communities. The articles in the special issue have addressed, where possible, some of these key questions, but they deserve more dedicated attention. We are thus already working on a second special issue, focused on ‘The Ocean-Climate Nexus and its Relationship with Human Rights’ of the International Journal of Marine and Coastal Law that is co-edited by early-career researcher Mitchell Lennan and Hub Director Morgera (Strathclyde University) and colleagues from the University of Eastern Finland Kati Kulovesi and Eugenia Recio.