Including blue economies in human rights processes on just transitions and foreign investment protection
Human rights issues in the context of extractive industries, transitions to net-zero emission futures, and foreign investment are being investigated by different UN bodies. The Hub made two submissions to ensure that sufficient attention is also paid, in this connection, to negative human rights impacts in the context of blue economies. The first was directed to the UN Working Group on Business and Human Rights, and the other to the UN Special Rapporteur on Human Rights and the environment, in partnership with Hub partner International Institute for Environment and Development (IIED). The two submissions address complementary research findings and explore their legal relevance from the perspective of the international protection of human rights.
UN Working Group on Business and Human Rights
In May 2023, the Hub replied to a call for inputs titled “Extractive sector, just transition and human rights” issued by the UN Working Group on the issue of human rights and transnational corporations and other business enterprises. In the submission, the Hub underlined:
- The urgent need to include “blue economies”, other ocean-related economic development planning, and marine spatial planning into any consideration of the human rights impacts of foreign investment into energy transition policies;
- The implications of national blue economy policies in restricting the opportunities for national government and judiciary to protect local communities’ human rights, because of separate international obligations to protect the legitimate expectations of foreign investors that arise from the terms of national blue economy policies;
- our findings in South Africa, Ghana and Namibia identified that ocean economy/blue economy projects marginalise Indigenous peoples and small-scale fishers. Our evidence has already been relied upon in the 2022 report of the UN Special Rapporteurs on Cultural Rights on principles for sustainable development (A/77/290), which is relevant also for the work of the UN Working Group on Business and Human Rights;
- the need to include consideration of the large-scale fisheries sector in analyses of the human rights impacts of energy transition policies, both because of the energy consumption in large-scale fisheries and other contributions to climate change, and because of the growing negative human rights impacts of large-scale fisheries on the right to a healthy;
- the need to include consideration of deep-seabed mining, including protection of foreign investors, in analyses of the human rights impacts of energy transition policies, because assumptions about the potential of deep-seabed mining to contribute to climate change mitigation by providing minerals that are needed for electric car batteries need to be challenged in the light of scientific evidence about the irreparable damage to deep-sea biodiversity that could arise from deep-seabed mining, which could also negatively impact on the ocean’s natural contributions to climate change mitigation.
UN Special Rapporteur on Human Rights and the Environment
In June 2023, Hub Director Elisa Morgera, and Thierry Berger and Lorenzo Cotula (IIED) replied to a call for inputs by the UN Special Rapporteur on Human Rights and the Environment on “Investor-State Dispute Settlement (ISDS) mechanisms and the right to a clean, healthy and sustainable environment”. In that submission, they underlined:
- ISDS is relevant to the blue economy: joint OOH /IIED research conducted in 2020 found that since the late 1980s, investors had initiated at least 56 publicly known arbitrations based on investment treaties relating to sea-related activities;
- challenges arising from ISDS are the result of, and compounded by, the shortcomings of national governance frameworks on natural resources, including marine resources, notably with regard to poor consultation and environmental assessment processes (A/77/290). These shortcomings are even more worrying with regard to the threats faced by “ocean defenders”, whose recognition as environmental human rights defenders continues to lag behind compared to the protection of land defenders, at the national level and internationally (see also here and here);
- Local communities are largely excluded from the ISDS system: they are not party to the proceedings, they cannot provide meaningful contribution to the process, and often they are not aware of the ISDS proceedings. In this way, ISDS compounds asymmetries in rights and remedies, because it offers foreign investors more effective remedies and thus leverage in decision-making than local communities whose right to a healthy environment has been infringed;
- On the whole, ISDS can also make it more difficult for states to take action to conserve and use sustainably biodiversity and combat climate change, because of the structural issues of broad protections afforded to investors under International Investment Treaties and the significant amounts of compensation which arbitral tribunals routinely award against a State through ISDS mean remain concerning and justify the call for significant reform of international investment law.
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