The second Hub-led special issue is online: Applying a Human Rights Lens to the Ocean-Climate Nexus
The latest special issue of the International Journal of Marine and Coastal Law addresses priority research questions identified on the basis of the interdependencies of human rights, the climate and the ocean in several international processes and fora. The special issue includes two inter-disciplinary articles across the marine, social and legal sciences, as well as international law articles by early-career researchers. Among several research findings, it puts forward innovative proposals on a new multi-actor coalition on ocean-based climate action, and a new framework on facilitating children’s participation in international processes at the ocean-climate nexus.
We have known that climate change negatively impacts on the marine environment since the 1990s. And we are increasingly aware of the role the ocean plays in climate regulation, although we are still unveiling the full extent, and the fragility, of the contributions of deep-sea ecosystems to climate change mitigation. Meanwhile, the effects of climate change on individuals and communities are increasingly understood as human rights threats and violations, and some climate change responses have been identified as threats to the conservation and sustainable use of biodiversity, including marine biodiversity.
On the one hand, the ocean has finally been officially placed on the international climate change agenda through a series of ocean-related decisions adopted at the United Nations Climate Conferences in 2021 and 2022, although it remains to be seen whether sufficiently ambitious and precautionary ocean-based climate action will be included in the commitments by Parties to the Paris Agreement. On the other hand, the International Tribunal for the Law of the Sea (ITLOS) has been requested to clarify States’ obligations to protect the marine environment from climate change, including as part of the general obligations to prevent, reduce and control marine pollution. The International Court of Justice has been asked to both clarify States’ obligations regarding climate change, and their legal consequences vis-à-vis other States and peoples and individuals of present and future generations. And the Inter-American Court on Human Rights has been required to clarify States’ obligations to protect human rights from the negative impacts of climate change. The trio of advisory opinions have already been subject of intense scholarly debate, and in addition to the Hub’s own submission to the ITLOS based on the findings of the special issue, the Hub has begun analysis of the 50+ written submissions to the ITLOS. The rest of this blog post explores key messages and original ideas put forward in the special issue.
The need for an inclusive multi-actor coalition on ocean-based climate ocean
The first inter-disciplinary article by eighteen Hub researchers (of which 8 are early-career researchers) and three colleagues from the University of Eastern Finland with extensive expertise in international climate law whose work inspired several proposals made in the article ‘Ocean-based Climate Action and Human Rights Implications under the International Climate Change Regime’, expands scientific understanding of the ocean-climate nexus, drawing attention to the crucial role of marine biodiversity, including within deep-sea ecosystems in addition to coastal ones. It then focuses on the opportunities and challenges to contribute to the protection of the marine environment under the international climate change regime (i.e. the UNFCCC and the Paris Agreement) from an interdisciplinary perspective by integrating international law scholarship with marine natural and social sciences. Based on the evolution of ocean-climate science since the 1990s, the authors underscore the limited extent to which the international climate change regime has so far addressed the ocean, including through climate finance. They also express caution about the opportunities that more ambitious, ecologically meaningful and human rights-based ocean-based climate action can be supported in that framework; notwithstanding the widely shared hopes across international communities that climate finance can plug the gaping hole of financial resources needed to implement Sustainable Development Goal 14 (Life below water).
The article focuses on what is required at an institutional level for a comprehensive, sustainable and inclusive approach to ocean-based climate action that would also establish the necessary framework for channelling climate finance to the ocean. It thus draws on the lessons learnt in the context of the approach used for reducing emissions from deforestation and forest degradation (REDD+) and draws on the example of the Climate and Clean Air Coalition, taking into account relevant guidance under the Convention on Biological Diversity and international human rights law. It concludes with a novel proposition to develop a multi-actor coalition across different international treaties and United Nations bodies to ‘protect and restore the ocean’s contributions to climate regulation, human well-being and planetary health’.
We look forward to engaging with partners and interested organisations in exploring the viability of our proposals in preparation for the next Climate COP.
Addressing climate change through Strategic Environmental Assessment under the BBNJ Agreement
The second inter-disciplinary article by eleven Hub researchers (of which 5 early-career researchers), ‘Addressing the Ocean-Climate Nexus in the BBNJ Agreement: Strategic Environmental Assessments, Human Rights and Equity in Ocean Science’ assesses to what extent the 2023 BBNJ Agreement opens a new path in international law towards addressing issues at the ocean-climate nexus. In doing so, it stresses the need to consider implications for the protection of human rights and achieving equity among States in the context of ocean knowledge production and environmental management.
Based on an interdisciplinary reflection integrating international law with marine natural and social sciences, the article focuses on the new international obligations on strategic environmental assessments (SEAs) as crucial avenues to address climate change mitigation, and ensure fair research partnerships, mutual capacity-building and technology co-development between the Global North and Global South. The article also reflects on the extent to which SEAs can support an integrated implementation of other parts of the BBNJ Agreement and contribute to the broader effectiveness of the general provisions of the United Nations Convention on the Law of the Sea on the protection of the marine environment, within and beyond national jurisdiction, in the light of ecological connectivity. Building on our earlier policy brief, the article develops an interpretation of various institutional provisions of the BBNJ Agreement that can support a proactive approach to the ocean-climate nexus, considering potential impacts on human rights and diverse capacities of States to advance ocean-climate science and action.
The following two Hub articles focus on two constituencies of human rights holders that are particularly concerned with the ocean-climate nexus. The article by early-career researchers Julia Nakamura, Julia Cirne Lima Weston, and Mitchell Lennan, ‘International Legal Responses for Protecting Fishers’ Fundamental Rights Impacted by a Changing Ocean’ provides a thorough discussion of the direct impacts of climate change on marine fisheries resources, their habitats, ecosystems, and biodiversity and the resulting effects on fishers involved in large- and small-scale fisheries and their human rights (livelihoods, food, health, culture, life, a healthy environment). The authors then question whether international law provides a supporting framework for the protection of the fundamental rights of fishers in the changing ocean context, differentiating fishers’ vulnerability and capacity to adapt to climate change effects on the ocean. The authors examine the linkages between the obligations of States Parties to the UN Convention on the Law of the Sea and the United Nations Framework Convention on Climate Change vis-à-vis States’ obligations under human rights treaties and international guidance that more specifically address the protection of fishers’ fundamental rights.
The article by early-career researchers Sophie Shields, Mia Strand, Andrea Longo, with Elisa Morgera, entitled ‘Children’s Human Right to be Heard at the Ocean-Climate Nexus’ aims to clarify the obligations of States under the law of the sea to put children’s human rights at the heart of decision-making on the protection of the marine environment, particularly at the ocean-climate nexus. On the occasion of the June 2023 adoption of a new UN General Comment on Children’s Right and a Healthy Environment, with a focus on Climate Change, by the UN Committee on Children’s Rights, the article discusses the relevance of the provisions of the UN Convention on the Rights of the Child and, in particular, children’s human right to be heard in the context of international processes relevant to the ocean-climate nexus. The article sets out two case studies to that end: the existing provisions on deep-sea mining activities under the International Seabed Authority and the BBNJ Agreement. The authors also reflect on more ambitious approaches to integrating intergenerational dialogue within international ocean fora, on the basis of good practices in the area of children’s human rights, making a novel proposition of a framework for facilitating children’s participation in ocean decision-making to support mutual learning between and within generations and transformative thinking at the ocean-climate nexus.
Looking at other international processes
The One Ocean Hub is very grateful to two external experts that have contributed two additional articles to the special issue. Noreen O’Meara, University of Sussex, published ‘Human Rights and the Global Plastics Treaty to Protect Health, Ocean Ecosystems and Our Climate’, to shine a light on the ongoing negotiations of a new plastics treaty and their relevance for the ocean-climate nexus. The author then explores the scope for a proposed UN Global Plastics Treaty and identifies the defining feature that such a treaty must integrate to be ambitious and credible in mitigating climate change, minimising ocean pollution and protecting human rights throughout the plastics lifecycle.
The final article in the special issue by Lianne Baars, Leiden University, ‘The Salience of Salt Water: An ITLOS Advisory Opinion at the Ocean-Climate Nexus’, reflects on the opportunities for the ITLOS to interpret the law of the sea in an evolutionary and mutually supportive way with international climate change law, international human rights law and international biodiversity law. The author reflects on the extent to which ITLOS could support international efforts to combat climate change and ocean acidification, assessing the significant, albeit non-binding, effects of its advisory opinion.
This research has contributed and complements the Hub’s submission to ITLOS, including further plans to analyse the 50+ written submissions to the Tribunal in a forthcoming academic article by Hub early-career researcher Andrea Longo (Strathclyde University) and Mitchell Lennan (see initial reflections here).
The Hub is also planning together with partners a webinar on the advisory opinion on 5 September ahead of the oral hearings commencing week beginning 11 September. Further, the Hub intends to participate in the advisory opinions of the International Court of Justice and the Inter-American Court of Human Right as those court’s procedural rules allow.
In addition, Hub researchers are developing new research papers, notably:
- an inter-disciplinary article which elaborates on the notion of climate-responsive marine spatial planning and its inclusion in Nationally Determined Contributions under the Paris Agreement raised in the opening article of the special issue;
- An innovative legal analysis exploring the important role that mesopelagic fish species play in the ocean-climate nexus and the case for a moratorium on mesopelagic fishing as a form of blue carbon stock protection (Mitchell Lennan);
- An inter-disciplinary research paper on financing ocean-based climate action.
Photo: Julia Fiander