Reflections on the Report of the UN Special Rapporteur on Climate Change and Human Rights focused on Loss and Damage
In the wake of the ‘summer of climate disasters’ – as July and August 2022 were dubbed by The New York Times – the latest report by Ian Fry, the UN Special Rapporteur on the promotion and protection of human rights in the context of climate change focuses on the promotion and protection of human rights in the context of climate change mitigation (emissions reduction), loss and damage (the impacts of climate change) and the role of participation in achieving these objectives.
As highlighted in an earlier blog post, the One Ocean Hub responded to a call for input for the report (which can be viewed among the other 90 submissions here) with the aim of drawing attention to the Hub’s research contributions on the human rights-ocean-climate nexus (see here, here and here). In this blog post, we continue our contribution to this body of work, by reflecting on the significance of the findings and recommendations of the Special Rapporteur the context of the ocean.
As a general overview, the report begins by emphasising the fact that for millions of people ‘… climate change … constitute[s] [a] serious threat to the ability of present and future generations to enjoy the right to life’ (UNHRC, GC 36 2018, para. 62), and is the greatest threat to the natural environment, the services they provide, and the species which rely on them. Climate change is part of the triple planetary crisis (see here), as it erodes the material conditions fundamental to the proper realisation of everyone’s human rights and freedoms. Recalling that the Paris Agreement refers to States’ human rights obligations in its preamble, the Rapporteur outlines human rights implications of 1) mitigation actions; 2) loss and damage; and 3) the participation and the protection of climate rights defenders. This blog post follows the same structure, highlighting explicit references to the ocean in the report, as well points that are relevant for the ocean as highlighted in the Hub’s submission and research, before analysing Special Rapporteur Fry’s recommendations.
The report notes that the relationship between climate mitigation actions and the enjoyment of human rights is twofold. These are:
- the failure or ‘inadequate response to reducing greenhouse gas emissions has a significant negative impact on the enjoyment of human rights’ and
- the significant impacts of ‘some mitigation actions’ on the exercise of human right (p. 4).
The Special Rapporteur stresses that States do indeed have human rights obligations in their climate mitigation actions; and that they are ‘failing in their human rights obligations to mitigate climate change and prevent its negative human rights impacts’ (p. 4). This is relevant for the ocean in two ways:
- the documented violations of human rights in the context of land-based climate mitigation measure offer crucial cautionary tales for the emerging ocean-based climate mitigation action; and
- this caution needs to be heightened in the case of deep-sea ecosystems, for which we still do not know enough about their contributions to our fundamental human rights.
Not repeating the mistakes of land-based mitigation in the context of ocean-climate action
With regard to cautionary tales that are relevant also for future ocean-based climate action, Fry’s report highlights numerous problems with forest-based mitigation actions. Including ‘increasing risks to the enjoyment of human rights to food, water, sanitation and housing, especially for people and communities whose livelihoods depend on land’ (para. 19). These have been exacerbated due to the ‘explosion of net-zero commitments, which lack clarity and transparency’ (para. 19). The report also signals that – aside from questions on their efficacy of actually mitigating climate change – the mechanism for reducing emissions from deforestation and forest degradation (REDD+) developed under the UNFCCC, as well as voluntary carbon market programmes are deeply problematic as they ‘have been the source of human rights infringements, particularly of indigenous peoples in rainforest areas’ (para. 202).
Moreover, the allocation of rights to protect forests as carbon stores has been dubbed ‘neo-colonialism’ since the land traditionally occupied by indigenous people is appropriated for protection. This land-grabbing practice can of course deny the rights of Indigenous peoples and of traditional (fishers, farmers and other peasants) and marginalised (women, children, Afro-descendant, the rural poor) peoples. This is also reflected in the concern expressed by the UN Special Rapporteur on human rights and environment David Boyd, that the recently agreed decisions in the Paris Agreement Rulebook on carbon markets are lacking in strong human rights safeguards. Similar concerns are being raised also for the human rights implications of coastal- and blue-grabbing practices, which are increasing as more and more states pursue blue economy agendas (Lancaster, 2022).
In addition, this terrestrial-focused point in the report is relevant to growing interest in ‘blue carbon’ as a mitigation and adaptation action. Mangroves, tidal marshes, seagrasses and other coastal blue carbon ecosystems play a vital role in both carbon sequestration and strengthening coastal resilience to extreme weather events and ocean acidification, for example. They also support the material conditions for several human rights through food security, biodiversity, coastal protection and support sustainable livelihoods (see UNGA, para. 197 – Res A/RES/72/73). The Hub submission argued that we must ‘take stock of the lessons learned in land-based carbon markets and avoid repeating the same shortcomings from a human rights perspective’. Rather, there is an opportunity to contribute to UN Decade on Ecosystem Restoration, if restoration, conservation and protection of blue carbon ecosystems upholds a rights-based approach.
Heightened caution for deep-sea ecosystems
Moreover, the Hub’s submission to the Special Rapporteur highlighted that we have limited knowledge of deep-sea ecosystem services – including carbon sequestration in the deep-seabed – species, habitats and the role they play in the regulation of our climate (see here). This is reflected in the report on the more general point that:
‘serious concerns have been brought to the attention of the Special Rapporteur about the potential environmental and human rights impacts from deep seabed exploration and mining for minerals that could be used in battery production for electric vehicles and other forms of electrical storage’ (para. 25).
The Hub’s ongoing research on the deep sea has highlighted the critical gaps in decision making on deep-seabed mining from a human rights perspective, including from a children’s rights perspective (here).
The Hub’s research at the national level has demonstrated the importance of adopting a human-rights based approach in tackling the connections between marine biodiversity in both climate mitigation and adaptation (see here). On that basis, the importance of integrating the human rights-ocean-climate nexus within the nationally determined contributions of States submitted under the Paris Agreement cannot be overstated. There is also a marked need to support developing countries – including small island developing states and least-developed countries in this integration (see here). On deep-sea ecosystem services, Hub Researcher Giulia LaBianca, Plymouth University, is developing a standard framework to include within decision making the benefits that these remote environments provide to society, and therefore the potential damage and losses that could be incurred if these services are not duly taken into account. Equally, the framework will serve to better understand knowledge gaps in the management of supporting ecosystem services such as climate regulation, in order to prioritise new scientific efforts and the application of the precautionary approach in decision-making.
Loss and Damage
Loss and damage as enshrined by Article 8 of the Paris Agreement is highlighted in the report as ‘closely related to the right to remedy and the principle of reparations, including restitution, compensation and rehabilitation’ (para. 26). Article 8 has been a sore point of the post-Paris climate negotiations, especially for developing countries, who feel that the refusal to comply with cooperation, facilitation and support obligations is denying them reparative justice for the historical harms by developed countries (see here). In addition, this protracted reluctance is intensifying existing injustices and structural inequalities, undermining the efforts of developing towards climate justice.
The Hub’s submission stressed that both economic and non-economic loss and damage pose significant threats to basic human rights, including those arising from the harm to, and unsustainable use of, the ocean. The report showcased numerous examples of extreme weather events including coastal storms, floods and sea level rise, and their impacts on the physical and mental wellbeing of children, including from displacement, and interruption of education activities (paras. 29–39). These events provide important justification and support for the Hub’s ongoing work on integrating the ocean into the development of the UN General Comment on children’s rights and a healthy environment (see here, here and here).
The UN Special Rapporteur then illustrated how ‘non-economic’ loss and damage can be incurred with prolonged displacement of entire island populations by extreme weather events such as hurricanes in the Caribbean, or drought or saltwater intrusion which destroys crops in African and Pacific Small Island Developing States (SIDS), and are rarely addressed in national policies, plans or strategies. The report also highlighted the impacts of increased carbon dioxide concentrations (paras 40–41), which ultimately have far-reaching implications for the most vulnerable in society. While the report signals that crop growth and yields can increase, this is to be countered by the impacts of slow onset events, such as rising rates of drought, desertification and saltwater intrusion impacting arable land, and ocean acidification on coral reefs, which impact many small-scale fisheries. Food and nutrition insecurity have therefore become a way of life for large swathes of the populations of SIDS – women, children, the indigenous and Afro-descendant peoples – as fish and seafood is often the most utilised and available protein (see World Ocean Review, 2013). Already in the Caribbean, for example, there is a deepening of food and nutrition insecurity (WFP, 2022; FAO, 2015), which has been compounded by the COVID-19 pandemic and the subsequent distortion of fisheries value chains (Lancaster and Bovell, 2022 (forthcoming)). These developments mean that the discourse on food sovereignty in the context of climate change is now more topical than ever, with a view to creating alternative agricultural and food policy models which are better equipped for addressing food insecurity in the face of climate change.
Despite the recognition of the impacts of ocean acidification on oceanic ecosystems and fisheries in the Hub’s work (here and here), the IPCC’s Special Report on the Ocean and Cryosphere and publications spanning decades, there was a conspicuous lack of consideration in the UN Special Rapporteur’s report. This is especially in relation to the increasing levels of carbon dioxide in the atmosphere and its impacts on impacts numerous human rights, including the right to health (see here). The Hub’s submission recommended that States should focus on curbing CO2 emissions to combat ocean acidification as a mitigation co-benefit; and explore how loss and damage can be operationalised to limit the ecological and human rights impacts of acidification as a slow-onset event.
The report does, however, identify the fact that higher ocean temperatures causes coral reef bleaching, which impacts the human right to food for those dependent on coral reef ecosystems as a food source (para. 49). The economic losses felt by fishery-dependent coastal States caused by migrating fish stocks (particularly tuna) due to climate change were also identified. This links to research by Hub PhD researchers Mitchell Lennan and Julia Nakamura on climate-induced range shifts of marine species and the human rights of small-scale fishers, respectively (see also other Hub research on small-scale fishers here, and here). This is a key point to be further investigated in the context of the Hub’s partnership with FAO, the UN Office of the High Commission for Human rights and others in the context of 2022 – the International Year of Artisanal Fisheries and Aquaculture.
In terms of Children’s Human Rights, apart from the impacts on the right to food, nutrition, health, education and oftentimes to the right to play, there are corresponding impacts on cultures, livelihoods, and the right to work, both in the short- and medium-terms. These latter three rights have increasingly gained the attention of international human rights bodies, who have had the opportunity to consider the devastating impacts of climate change and other planetary crises. Most recently, the UN Human Rights Committee in a landmark decision on 22 September 2022 declared that ‘… Australia’s failure to adequately protect indigenous Torres Islanders against adverse impacts of climate change violated their rights to enjoy their culture and be free from arbitrary interferences with their private life, family and home …’. This is the Committee’s second substantial contribution to the human rights of those impacted by loss and damage, as on 7 January 2020, the Committee ruled in Teitiota v. New Zealand, that removing, deporting or excluding an individual to a place where they may be exposed to life threatening risks due to the adverse effects of climate change could violate the right to life under Article 6 of the International Covenant on Civil and Political Rights. This has obvious implications for the so-called climate migrants and refugees, including those seeking asylum and work in developed states because of the impacts of natural disasters, and slower onset events such as desertification and saltwater intrusion.
There have also been steps to improve the labour conditions and recognition of the importance of the nexus between the triple planetary threats and business and environmental rights (Seck, 2022) of fishers, fishworkers, etc. in regional and international instruments (e.g., the UN’s Guiding Principles on Business and Human Rights, the Inter American Court’s judgment in the Case of the Miskito Divers (Lemoth Morris et al.) v Honduras (2021); the Escazú Agreement, and the European Commission’s proposal for a Directive on Corporate Sustainability Due Diligence). However, this progress is being eroded by loss of biodiversity impacts, which often force fishers to engage in risky and sometimes illegal acts to survive (highlighted in Hub research here, here, here and here; Witbooi and others 2020; Global Initiative/Witbooi, 2020; Isaacs and Witbooi, 2019). Most small-scale fisheries include a substantial numbers of women and children (Gender, Technology & Development, 2020; Siles, et al., 2019), and in many SIDS, including the Caribbean, there has been an increase in single-parent households led by women (UN, 2017). The impacts of climate change on food, nutrition, and livelihoods, therefore, can reach children in utero, curtail children’s development, as well as robs them of opportunities to ‘break’ often vicious cycles of oppression and poverty. As highlighted in the third section below, this has a domino effect on the procedural human rights of small-scale fishers and children.
As a rejoinder to the point on neo-colonialism raised by the Special Rapporteur in para. 20, loss and damage has impacted on sovereignty in the cultural and economic sense, and often in the loss of territory – both land and EEZ – which has lost its functional value. Apart from fisheries, many SIDS are heavily reliant on tourism, which is an industry heavily prone to global shocks, as well as trends. Therefore, while it is generally acknowledged that there is a need to reduce the carbon footprint – including air and sea travel – the corresponding reduction in travel will have a devastating impact on SIDS. This is coupled with the ecological impacts of climate change on tourism – such as the loss of reefs and degradation of beaches, that will impact on travellers’ choices and willingness to pay. Slow progress in mitigation mechanisms such as new technologies, distributive inequalities in the transfer in technologies, and the elusiveness of climate finance under Article 8 of the Paris Agreement, are altogether sources of frustration for many SIDS (see here, here, here and here). So both Caribbean and Pacific SIDS have signalled their intention to pursue remedies outside of the framework of the UNFCCC by requesting Advisory Opinions from either or both the International Court of Justice and the International Tribunal for the Law of the Sea.
A final point on loss and damage, the report indicated the ‘funding gap’ on loss and damage, noting that while some States had pledged funding for loss and damage, these simply do not go far enough (paras. 67–72). On that point, the Hub’s submission made specific recommendations on climate finance, which, on top of the pressing need to operationalise loss and damage financing, should prioritise:
- scaled-up research to the ocean-basin and regional scale, to develop and design monitoring tools, as well as appropriate mitigation and adaptation strategies;
- transdisciplinary ocean research (across the marine and social sciences and the arts) which respectfully includes indigenous and local knowledge holders, and other human rights holders in the co-identification of ocean-based action; and
- ocean-based action that supports the protection of children’s human rights (referring to the forthcoming UN Committee on the Rights of the Child’s forthcoming General Comment on children’s rights to a healthy environment, with a special focus on climate change).
These points were also made during the ocean discussions at the UNFCCC intersessional meeting in Bonn in June 2022, where the Hub showcases key messages on integrated approaches to the ocean-climate-human rights nexus during a poster session held during the research dialogue at the meeting (here and view the poster here).
It is therefore heartening that with COP 27 looming, that Denmark has taken the landmark step of becoming the first developed UN state to pledge compensation for the consequences of emissions on the developing world, to assist vulnerable countries that have suffered loss and damage from climate change. This comes alongside the call by UN Secretary General António Guterres for a windfall tax on fossil fuel companies and the diverting of these monies to predominantly developing countries suffering loss and damage to be invested in early warning systems, mopping up from disasters and other initiatives to build resilience.
On public participation, a fundamental component of procedural rights, the Special Rapporteur did not mince his words: ‘It is a regretful indictment of the current decision-making process that those who are most affected and suffering the greatest losses are the least able to participate in current decision-making. New participatory processes need to be found urgently.’ (para. 73).
The report goes on to discuss the ‘participation disconnect’ which, among other things highlights that those who benefit most from fossil fuel and carbon-intensive industries have ‘disproportionate access to decision-makers’ and must be ‘held accountable for the human rights abuses they are underwriting’ (para. 74). The disconnect is also apparent between ‘those who are most vulnerable to climate change impacts and those who actually participate and are represented in political and decision-making processes’ (para. 75).
Understandably, the report pays particular attention to participation within the UNFCCC arena. Indigenous peoples, youth and civil society organisations have virtually no say in the negotiations or input into their outcomes ‘apart from brief interventions in the opening plenary meetings’ (para. 77). The report compares this issue with the fact that the meetings of the Convention on Biological Diversity are considerably less restrictive, and allow textual input from civil society organisations and meaningful participation of indigenous peoples and local communities.
Children and young people’s participation
The Hub research and partnerships have been shedding light of the issue of youth participation at official UNFCCC climate meetings, particularly at COP26 has been criticised by the authors here, particularly the new 10-year Glasgow work programme on Action for Climate Empowerment, which does not contain any reference to human rights standards of public participation.
Considering that children’s human rights are not often discussed or even considered in relation to the ocean-climate nexus (here), there is a marked need to support more genuine participation of children and youth in the international climate regime, as well as in other arenas where decisions on the marine environment are being made, such as at the International Seabed Authority. Hub research continues to unveil how the human rights of children clarify the minimum standards of children’s and young people’s participation in international fora on the ocean, climate change, plastics and biodiversity (see here and here). The Hub has acknowledged that the Ocean-Climate Dialogue at the UNFCCC SBSTA in June 2022 did include the participation of youth organisations (here).
Overall, more work is needed to be done to amplify children’s voices in the context of climate change, particularly at the ocean-climate nexus. There are a number of opportunities to advance children’s rights including supporting the calls for the UNFCCC SBSTA to request the IPCC to produce a special report on climate change and children, where children’s rights to a safe climate is considered fully in the ocean-climate nexus, as well – as mentioned above – explicit inclusion of the ocean within the forthcoming UN General Comment on children’s rights to a healthy environment. In addition, the Hub is working closely with youth representatives and their allies to amplify young voices in the climate regime, following up on our engagements at the Glasgow Climate Summit and as part of our partnership with the Children’s Environmental Rights Initiative and Child Rights Connect.
Participation by indigenous peoples and other knowledge holders
The UN Special Rapporteur’s report also raises serious concern in relation to genuine participation also in the context of the Local Communities and Indigenous People’s Platform, which is ‘not adequate substitutes for meaningful and active participation in negotiations’ (para. 80). Hub research on meaningfully and respectfully learning from indigenous and local knowledge, and co-developing solutions with indigenous and local knowledge holders, including in their role as ocean defenders, is relevant here.
The Special Rapporteur also expressed concern that UNFCCC COPs are being held in increasingly expensive locations, which make it challenging for civil society organisations and indigenous peoples to attend.
Recommendations by the Special Rapporteur
The UN Special Rapporteur’s report concludes with a comprehensive and diverse set of recommendations, including on the proposed legal definition of ecocide as an international crime. The key recommendation from a Hub perspective is that the UN General Assembly ‘develop international legal measures to address the permanent loss of land and ocean territories and their associated ecosystems, livelihoods, culture and heritage’ (para. 92(f)). It is of course too early to say whether the General Assembly will take this recommendation on board or not, or what form these legal measures would take. Indeed, the decision to address the General Assembly with this recommendation is perhaps a tactical one. Climate change affects every part of our lives and it could be argued that directing this recommendation to the UNFCCC, for example, may be too narrow. A more general approach may facilitate a more participatory development of legal measures, with inputs from all UN bodies, including human rights bodies, and civil society. Moreover, it is perhaps not surprising this recommendation is not directed at the UNFCCC specifically, since the Special Rapporteur has made it clear in his Report that the facilitation of participation of those who are most likely to require use of these measures is not fit for purpose. And there are several international (binding) law-making processes ongoing that could also take this recommendation on board, such as the final stage of the negotiations of a new treaty on marine biodiversity of areas beyond national jurisdiction, and the negotiations of the deep-sea mining code.
Besides the choice of the addressee of this recommendation, it is to be welcomed that the Special Rapporteur has underscored the inter-linkages between ecosystems, livelihoods, culture and heritage in relation to the loss of and damage to marine ecosystems. Hub research has demonstrated how cultural heritage is often forgotten in ocean-related decisions, with negative impacts on an integrated approach to the protection of the marine environment and a variety of human rights. On the other hand, Hub research and partnerships are also demonstrating how transformative engagement with ocean cultural heritage and arts can be (see also here and here), and how the protection of cultural rights in this context can also support the protection of procedural rights and bottom-up action to mitigate climate change.
Finally, going back to earlier points about meaningful (and in fact transformative) participation, the Hub is demonstrating the importance of community-led vulnerability assessments, community-led ecosystem restoration, and use of inclusive and participatory arts-based research to engage in transformative public dialogue and prevent conflict in the context of supporting States in facilitating redress for ocean-dependent communities vulnerable to climate change. These experiences and learning should be factored in when assessing climate-related loss and damage. These should be integrated into any legal mechanism in order to co-develop locally meaningful and culturally appropriate redress based on assessments by the communities or individuals who have incurred loss and damage from the impacts of climate change (see here and here).
Forthcoming Hub Research of Note
The One Ocean Hub is working closely with various partners on these issues and welcome further connections with researchers and organizations interested in collaborating on these areas of research.
We are currently finalizing a series of original research outputs in these areas, such as:
- A special issue in the International Journal of Marine and Coastal Law edited by Elisa Morgera, Kati Kulovesi and Mitchell Lennan on the legal intersections of ocean-based climate action and human rights
- An article on climate change and fisheries conflicts from a small-scale fishers’ human rights perspective by Julia Nakamura, Mitchell Lennan and Kyle Fawkes
- A series of articles on the importance of including the ocean in the forthcoming UN General Comment No. 26, and on respecting children’s’ human rights in all ocean-related decision-making processes
- An article examining the synergies between climate due diligence and the business ‘responsibility to respect’ human rights in the Caribbean’s small-scale fishing industry in light of recent legal developments in the region by Alana Malinde S.N. Lancaster.