by Prof Elisa Morgera (Director of the One Ocean Hub) and Mitchell Lennan (PhD researcher at the Strathclyde Centre for Environmental Law and Governance / One Ocean Hub)
After COP25 in Madrid in 2019 was labelled the “Blue COP”, expectations were high for COP26 to embed the ocean into future climate-related action at all levels. Scientific evidence has been mounting on how the health of the ocean is significantly impacted by climate change, which also multiplies the impacts of other threats (over-exploitation and pollution). On the other hand, the ocean absorbs over a quarter of global carbon dioxide. Accordingly, the expression “ocean-climate nexus” refers both to the negative impacts of climate change on the ocean’s health, as well as the role of the ocean in global climate regulation. The lack of integrated approaches to this nexus impedes effective protection of the marine environment and leaves out a crucial area of international cooperation and national action for climate mitigation and adaptation. The motto “ocean action is climate action” was thus often repeated on the side-lines of COP26.
The ocean-climate nexus is essential also from a human rights perspective. As discussed in a pre-COP policy brief prepared by the One Ocean Hub, everyone’s human rights to life, health, food, water and culture depend upon a healthy ocean, which provides us with nutritious food, contributes to the renewal of freshwater, and produces half the oxygen we breathe. Since climate change impacts on marine ecosystems and their benefits to humanity through warming, acidification and deoxygenation, these threats are indeed human rights issues. Human rights and biodiversity are interdependent, as underscored by the UN Special Rapporteur on Human Rights and the Environment (A/HRC/34/49 and A/75/161). The inter-dependences of human rights and climate change (A/74/161 and A/HRC/31/52) are relevant also in as far as the protection and multiple uses of the ocean contribute (or not) to climate change mitigation and adaptation.
Against this background, this blog post reflects on the significance for the ocean and ocean-dependent human rights of the outcomes of the 26th Conference of the Parties to the climate treaties (COP26) held in Glasgow, Scotland, from 31 October–13 November 2021. While a more detailed assessment of the ocean-related outcomes of COP26 can be found here, this post introduces the linkages between human rights and the ocean, then focuses specifically on the human rights implications of ocean acidification and the need for human rights-based approaches to ocean-based solutions to climate change. The post furthermore considers the implications of other COP26 outcomes for ocean-dependent human rights and outlines avenues for further research and engagement for environmental and human rights lawyers.
The human rights implications of ocean acidification
As the ocean is already negatively impacted in so many ways by climate change, general progress at COP26 on climate change mitigation is crucial for the ocean and ocean-dependent human rights. The Glasgow Climate Pact made an explicit reference to the need for “limiting global warming to 1.5°C, which requires rapid, deep and sustained reductions in greenhouse gas emissions, including global carbon dioxide by 45% by 2030 and net-zero by 2050.”
The explicit reference to carbon dioxide is very important to curb ocean acidification, which arises from excess CO2 emissions dissolving in sea water. Since 1980, the ocean has absorbed between 20–30% of CO2 released into the atmosphere resulting in further acidification. While ocean acidification and climate change are distinct issues, they share a common cause in CO2 emissions. As a result, the fight against ocean acidification can benefit from climate change mitigation efforts.
Ocean acidification has numerous impacts on marine ecosystems, including limiting the ability of species to form shells and skeletons. This is particularly problematic for coral reef species, who are unable to form their calcified shell structure which supports rich biodiversity on the reef. The effects of ocean acidification will increase and persist in marine ecosystems for hundreds of years if CO2 emissions continue unabated beyond the agreed 1.5oC temperature goal under the Paris Agreement. Since plankton and coral reefs – key species in marine food chains – are especially vulnerable to ocean acidification, this has a considerable impact on human rights, and particularly on children’s rights. The long-term potential for the ocean to act as a source of food and therefore aid the attainment of the child’s right to health under Article 23(2)(c) of the Convention on the Rights of the Child is clearly threatened by ocean acidification. If marine food chains suffer the loss of key species due to ocean acidification, fish species which are valuable for their nutrition content may decline or disappear.
The Committee on Economic, Social and Cultural Rights (CESCR) has warned States that a failure to mobilize the maximum available resources to prevent foreseeable harm to human rights caused by climate change constitutes a breach of their obligation to respect, protect, and fulfil all human rights for all. Since climate change and ocean acidification arise from common causes and both pose significant threats to human rights, it can also be argued that States have an obligation to prevent further ocean acidification that can cause foreseeable negative impacts on human rights and need to mobilize maximum available resources to that end. In addition, States’ international obligation to cooperate with one another on climate change matters is also relevant in the context of ocean acidification, including sharing information, transferring technology and building capacity to mitigate and adapt to the impacts of ocean acidification.
Following from the warning by the CESCR, in addressing ocean acidification, we argue that it is imperative that States establish and implement non-discriminatory and non-retrogressive policies and laws. These must include additional measures to protect the human rights of the most vulnerable, such as communities that have a close relationship with corals and marine living resources that are affected by ocean acidification and on which these communities depend for their material needs and cultural life. In addition, we argue that States should support CO2 emission reductions and the creation of marine protected areasthat prevent unjustified, foreseeable infringements of human rights, including those of Indigenous peoples, small-scale fishers, women, children, persons living in poverty, persons with disabilities, older persons, migrants, displaced people, and other potentially at-risk communities, and environmental human rights defenders.
Ocean-specific outcomes of COP26 and their human rights implications
There were two strands of ocean-specific outcomes at COP26. First, the “Glasgow Climate Pact” made direct reference to the need to ensure the integrity of ocean ecosystems (preamble, para. 5), as well as to the importance of protecting, conserving and restoring marine ecosystems acting as sinks and reservoirs of greenhouse gases (1/CP.26, para. 21).
These references to marine ecosystem protection and restoration build bridges between action on the ocean, biodiversity and climate change. As 2021-2030 is the UN Decade for Action on Ecosystem Restoration, linking adaptation and mitigation to marine ecosystem restoration has the potential to support the protection of multiple human rights, such as the right to food, water and health. However, according to the Intergovernmental Science-Policy Platform on Ecosystem Services Global Assessment Report on Biodiversity and Ecosystem Services, marine ecosystem restoration is lagging behind compared to terrestrial ecosystem restoration. The role of ecosystem restoration and its contribution to adaptation and mitigation of climate change is currently under discussion at the negotiations of the post-2020 global biodiversity framework under the Convention of Biological Diversity.
In addition, existing research gaps on the potential of marine ecosystem restoration could be prioritized as part of the concurrent UN Decade for Ocean Science, together with transdisciplinary research approaches that can support the co-development of solutions with human rights-holders (see also here) and synergies with the One Health approach. This research could then inform decision-makers at future Climate COPs on opportunities to mitigate and adapt to climate change through marine ecosystem restoration that contribute to protect human rights, notably with respect to the key research action items identified by the UNFCCC Subsidiary Body for Scientific and Technological Advice (SBSTA) – namely the opportunities for and challenges of implementing nature-based solutions in ocean ecosystems for supporting adaptation and mitigation action, and the tipping points and incremental transformations in climate systems, including in the ocean.
Second, the Glasgow Climate Pact officially integrated the ocean for the first time across all areas of work under the Convention, thanks to the efforts of the Because The Ocean initiative (see also here). Specifically, the Pact invites relevant work programmes and constituted bodies under the UNFCCC “to consider how to integrate and strengthen ocean-based action in their existing mandates and workplans and to report on these activities within the existing reporting processes” (1/CP.26, para. 60). Furthermore, starting with its June 2022 session, the SBSTA will hold an annual dialogue to strengthen ocean-based action and prepare an informal summary report, which will be made available to the Conference of the Parties at its subsequent session (1/CP.26, para. 61).
The Glasgow Climate Pact, however, does not define the term “ocean-based action” nor does it provide for more specific guidance on key issues or priorities. That said, the multiple guidelines adopted under the UN Convention on Biological Diversity on climate change and on biodiversity provide intergovernmentally agreed language on approaches that can also support the protection of the human rights of Indigenous peoples (for whom the protection of marine territories lags behind the protection of land) and other communities, such as small-scale fishers (whose protection as environmental human rights defenders again lags behind the protection of land defenders – see also here and here).
In that connection, the new work plan of the Local Communities and Indigenous Peoples Platform contributes to the respectful integration of Indigenous and local knowledge into international climate change policy. The new work plan activities are expected to facilitate exchange of experience between Indigenous peoples and local communities, and the Parties in regard to approaches to managing all ecosystems to achieving the objectives of the Convention and the Paris Agreement. This bodes well for future integration of Indigenous and local knowledge at the ocean-climate nexus, as long as we advance our understanding of ocean-related customary laws (see here and here) and of marine dispossession – the displacement from or impaired access to marine areas of ocean-dependent indigenous peoples and local communities, which is the result of colonisation, colonial legacies or discriminatory management approaches.
The recurring annual oceans-climate dialogue – which was called for by several States in June this year – might keep high-level interest going on the climate-ocean nexus. However, the success of the annual dialogue will depend on the work of the SBSTA and other UNFCCC technical and financial bodies in conjunction with the cooperation of Parties that can facilitate support and monitoring of ocean-based action for climate mitigation and adaptation purposes. At least the request for the various bodies and work programmes under the UNFCCC to report back at COP27 gives a timeframe and form of accountability, and could pave the way for an oceans-focused decision next year. But whether these processes will duly account for the human rights implications of ocean-based solutions is also dependent on public participation (discussed below).
The implications of other COP26 outcomes on ocean-dependent human rights
While COP26 did not make a commitment on phasing out oil and gas production, the Glasgow Climate Pact does include a reference to “phasing-out of inefficient fossil fuel subsidies.” This is also relevant for the ocean, as the production of fossil fuel is linked to the production of plastic, much of which ends up contributing to ocean plastic pollution, as recently highlighted by the UN Special Rapporteur on Toxics. The Rapporteur emphasized that because plastics recycling is only available for less than 10% of plastics produced, and plastics landfilling and incineration further contribute to pollution and negative health impacts, efforts need to prioritize limiting the production of plastic, much of which is made from oil and gas. Preventing plastic from being produced and entering into the ocean would also have additional benefits for climate change mitigation, as ocean plastics negatively impact on marine systems (mangroves, seagrasses, corals and salt marshes) that sequester carbon.
On adaptation, Parties to the Paris Agreement adopted the Glasgow-Sharm el-Sheikh work programme for the Global Goal on Adaptation to help improve over the 2022-2024 assessment of progress in adaptation through regular workshops and work on methodologies. This decision, in conjunction with the request of UNFCCC bodies and work programmes to explore how to better integrate ocean-based action in their work, could prove promising in integrating the ocean in climate adaptation rules, financing and technology transfer at subsequent COPs (see also here on ocean-based adaptation). In theory, the climate-ocean nexus can be addressed on the basis of the more generic reference to ensuring co-benefits for climate finance, but the COP26 decision on “matters related to the Committee on Finance” (para 69) notes that
“Overall, the needs identified by developing countries touch on all SDGs, with 75 per cent of NDCs having linkages to SDGs 2, 6, 7, 8, 9, 11, 12, 13, 15 and 17.”
It is thus notable that SDG 14 (life below water) is not listed there. This is particularly worrying because at the moment only 2% of Green Climate Fund investments are directed to ocean-related activities and less than 20% of ODA is addressed to ocean-related issues (see Commonwealth Secretariat statement here, at 2.54.15). It can thus be hoped that the request to UNFCCC bodies and work programmes to include ocean-based action in their work will help, over time, centre the ocean in climate finance.
With increasing research on the value of blue carbon, it can be expected that carbon markets will start to include blue carbon. On carbon markets, COP26 adopted new decisions completing the Paris rulebook, which are widely seen as a major achievement (see Earth Negotiations Bulletin). The lack of references to human rights and to an independent grievance mechanism in this context, however, has been criticized by the UN Special Rapporteur on Human Rights and other observers. UN Special Rapporteur on Human Rights and the Environment David Boyd, in a series of tweets, highlighted:
“Strong human rights safeguards, including an independent grievance mechanism, in the rules governing the Article 6 carbon market mechanism, consistent with [Global Environment Facility], [Green Climate Fund] etc established practices and ensuring no repeat of fraud and human rights under Kyoto mechanisms.”
To avoid repeating the mistakes made in the context of land-based carbon markets in the context of blue carbon in the marine environment, it is important to take stock of exclusionary practices that have led to well-documented human rights violations on land.
Human rights standards for public participation, and children’s human rights
Concerns about participation were very high already before COP26 started. These concerns were confirmed as COP26 unfolded and the vast majority of observers could not have access to the negotiating rooms. In addition, many international observers and civil society organisations expressed great disappointment that the new 10-year Glasgow work programme on Action for Climate Empowerment did not include references to human rights standards of public participation. Parties and non-party stakeholders are merely:
“encouraged to promote public participation in addressing climate change and its effects and in developing adequate responses by facilitating feedback, debate and partnership in relation to climate change activities and relevant governance, noting the important role that social media platforms and strategies can play in this context.” (para. 22).
The Glasgow Climate Pact sought to compensate this limitation, by:
- recognizingthe important role of Indigenous peoples, local communities, youth and children, in addressing and responding to climate change;
- calling for promoting and considering respective obligations on human rights in implementing the Glasgow work programme on Action for Climate Empowerment; and
- calling for annual youth-led climate forum with a view to contributing to the implementation of the Glasgow work programme on Action for Climate Empowerment (paras 55, 62 and 64–65).
The general reference to ‘respective obligations on human rights’ in the Glasgow Climate Pact, however, may not be sufficient to elicit the necessary institutional adjustments to effectively enable relevant human rights-holders to effectively participate in decisions on the ocean-climate nexus that may undermine their rights to life and health, notably children and youth.
The decision to hold an annual youth-led climate forum in the Glasgow Climate Pact does not respond to the specific calls made repeatedly by youth representativesat COP 26 tobe included in the negotiations, not only in separate, youth-focused events. The UN Special Rapporteur on Freedom of Association closely followed the practices at COP26, lamenting how limitations for civil society and representatives of human rights-holders in accessing the negotiations were a major barrier to realizing climate justice and to the protection of children’s rights in particular. This is indeed a crucial aspect for the protection of children’s human rights to healthy environment, which also hinges upon the ocean-climate nexus.
Despite the clear recognition of the importance of the environment for the protection of children’s rights, there has been limited discussion of the unique role the ocean plays in the protection of children’s rights. The One Ocean Hub has started to raise awareness about which children’s rights are dependent on a healthy ocean, including:
- Right to life, development and survival, which depend on the ocean’s generation of 50–70% of the Earth’s oxygen;
- Right to health, which may be negative impacted by exposure to chemicals and microplastic pollution;
- Right to food, which depends on the availability of fish; and
- Right to culture in communities where the ocean is an intimate component of ways of life.
The generic reference in the Glasgow Climate Pact to ‘respective obligations on human rights’ does not do justice to the specific international requirements to ensure children- and youth-friendly access to information and participation. Children’s and young people’s aspirations to take part in decision making on ocean and climate governance are supported by specific international human rights obligations binding upon states. In addition, different stakeholders and researchers from various disciplines (from deep-sea ecology, to social sciences, arts and law) should work together to support children’s human right to a healthy environment as including a healthy ocean, and therefore children’s participation in decisions that may affect this right. And of course, the importance of a healthy ocean for children’s rights should be included in education initiatives (as part of children’s right to education), with a view to promoting greater participation of children in ocean decision-making processes and conservation initiatives (thereby supporting their procedural rights).
There are upcoming opportunities for the relationship between children’s rights and a healthy ocean to be recognised. The UN Committee on the Rights of the Child has launched a new process to develop a General Comment that will focus on children’s rights to a healthy environment, with special attention being paid to the impacts of climate change. In addition, the leaders of UN bodies and organizations have recently issued a joint commitment on ensuring the promotion and recognition of the right of children to a safe, clean, healthy and sustainable environment. Both processes provide crucial opportunities to address the ocean-climate-human rights nexus.
Outlook
This blog post has illustrated that climate action must also focus on the ocean and ocean-dependent human rights to be effective. Much remains to be done, however, to support the urgent consideration of the inter-dependencies of human rights, the climate and the ocean across scales and in several international processes. This is the case, for instance of the International Seabed Authority where regulations on deep-seabed mining are being developed (raising concerns for children’s rights, among others). It is also the case of the UN negotiations on marine biodiversity of areas beyond national jurisdiction.
The scaling up of research to ocean-basin and regional scale is vital to understand which areas of the oceans that are under greater risks, develop monitoring tools, and design appropriate mitigation and adaptation strategies. This needs to be coupled with advancing urgently research on deep-sea ecosystem services: it is estimated that there are 2.50 million undiscovered marine species, so we have very little knowledge about how these species function, what services they provide, and how they may be affected by climate change. Climate finance should thus be directed to transdisciplinary ocean research, requiring fair research partnerships to respectfully and appropriately include Indigenous and local knowledge holders, children and other human rights-holders to co-produce knowledge and co-develop solutions feeding into policy- and decision-making spaces nationally and internationally.
In addition, there are also opportunities to better understand the role of arts for conflict transformation and integration of indigenous and local knowledge, of climate litigation and of the debates on nature’s rights in supporting human rights-holders and duty-bearers to address the ocean-climate nexus.
—
The One Ocean Hub is an international programme of research for sustainable development, working to promote fair and inclusive decision-making for a healthy ocean whereby people and the planet flourish. For latest updates, follow us on Facebook / Twitter / Instagram / LinkedIn / YouTube.
Subscribe to a monthly newsletter on the Hub website (link to subscribe at the bottom of the page).
