By Ana Lucía Maya-Aguirre, Luis Fernando Sánchez-Supelano, and Melany Velásquez-Lozano, Center for Marine Justice (Colombia)

The advisory opinion proceedings before the International Court of Justice (ICJ), the International Tribunal on the Law of the Sea (ITLOS), and the Inter-American Court of Human Rights (IACtHR) mark a milestone in the strengthening of international law to establish and interpret the obligations of States in the face of climate emergencies, both in relations between States and with respect to individuals, peoples, and communities.

These proceedings have brought to light different points of emphasis on marine justice in relation to conservation, care, limits to uses, and the distribution of environmental burdens and benefits in relation to the oceans. By marine justice we mean “an extension of environmental justice to give prominence to environmental and climate impacts and injustices in relation to the use of marine biodiversity and marine pollution, and to generate proposals in this regard that consider the rights of vulnerable coastal and island communities, and the responsibilities of developed countries towards small island states, and countries with coastal zones and at risk of flooding.”

Among the various elements discussed in the different advisory opinions are:

1. The unequal relationship between developed countries, mostly responsible for the climate emergency, and small island developing States (SIDS), mostly affected, as well as coastal and island communities in other countries, which are also exposed to the effects of climate change in the ocean, including the sea level rise;
2. The integration of States’ climate change-related obligations under the different international normative frameworks, such as the law of the sea and the climate change agreements;
3. The interpretation of the scope of human rights obligations in the face of the climate emergency, especially for the most vulnerable populations; and
4. The recognition of the rights of coastal and island communities and, specifically for the scope of this article, of artisanal fishing communities. We will focus on the latter below, based on the amicus briefs submitted to the three courts by the Center for Marine Justice.

Concept of marine pollution as a starting point

ITLOS made significant progress by stating that: anthropogenic emissions of greenhouse gases (GHGs), including short-lived climate pollutants (SLCPs), to the atmosphere constitute pollution of the marine environment, according to the definition contained in the Convention on the Law of the Sea (UNCLOS), and States must take all necessary measures to prevent, reduce, and control marine pollution caused by GHGs in a diligent manner and harmonize their policies in this regard. It also determined that the Paris Agreement is not lex specialis (a legal principle, according to which the more specific law takes precedence over the more general law when two laws apply to the same situation) and therefore is complementary to UNCLOS. ITLOS also ruled that science has a crucial role to play in understanding the causes, effects, and dynamics of GHGs and in substantiating and assessing the actions deployed by States to meet their obligations.

The proceedings underway before the ICJ and the IACtHR should take into account what ITLOS has pointed out and, within the framework of their competencies, recognize that coastal and island communities, both those located in SIDS and those living in coastal countries and with islands in their jurisdiction, are vulnerable to climate change and, therefore, subject to special protection. Within these communities, artisanal fishers face serious risks to their trade due to the climate emergency. They are also subjects of rights, such as food security, work, life and development, and access to marine biodiversity and fair markets as stated in SDG 14.

ITLOS’ interpretation of the concept of marine pollution is essentially linked to the effects of such pollution on human and marine life, the dangers it poses to human health, and the deterioration it causes to seawater quality. It is also linked to its role in the reduction of the environmental functions of the ocean, as well as the hindrance of marine activities, including fishing and other legitimate uses of the sea, as established by UNCLOS. When ITLOS interpreted the scope of “pollution of the marine environment” and “deleterious effects,” it did so in a cause-and-effect manner, determining that GHGs are marine pollution, and marine pollution is the cause of the hindrance of marine activities, including fishing.

Given that ITLOS gave science a central role in addressing climate change, it is pertinent to mention that the Intergovernmental Panel on Climate Change (IPCC) special report on the ocean and cryosphere – cited in the ITLOS advisory opinion – has pointed out that among the effects of climate change on the oceans are warming, deoxygenation, and acidification. According to the ITLOS definition, these are the effects of marine pollution caused by the emission of GHGs.

Artisanal fishing: A necessary perspective

The effects of marine pollution, caused by GHG emissions, affect the availability of fishery resources due to the loss of marine biodiversity and the disruption of species’ migration, among others. This not only affects coastal and island communities’ food security, which originates in fishing, but also affects fishermen, whose lives, traditions, and work revolve around this trade.

Alterations to marine and coastal ecosystems caused by GHGs carry high risk to fisheries, especially to small-scale fisheries and, more pertinently, to artisanal fishing communities, whose rights to access marine biodiversity and fair markets are recognized in SDG 14.

These findings should be considered by the advisory opinions of the ICJ and the IACtHR. The competence of the former is broader and can address debates around normative frameworks with a human rights approach and how they relate to traditional duties of States such as the duty not to cause harm or those related to environmental treaties such as the precautionary principle. The competence of the latter is regional and focused on human rights, and therefore the Court should address the obligations to respect and guarantee those populations that are most vulnerable to the climate emergency. The concept of effective enjoyment of rights should complement and help to clarify States’ obligations of environmental protection and those related to climate change.

In view of the above, it is necessary to move towards harmonious, systemic, and integral interpretations of the relevant legal frameworks in order to specify and articulate the different shared but differentiated obligations and responsibilities of States around protecting ecosystems and the dignified living conditions of individuals and communities. We emphasize the need to protect marine and coastal ecosystems and the human populations that depend on them for the satisfaction of their basic needs.

In addition, it is necessary to consider that as subjects of rights, artisanal fishing communities can and should participate in and contribute to the sustainable management of the oceans, as well as the adoption of strategies for the protection of marine ecosystems and the oceans.

As we write this article, we are in the Colombian Pacific at a workshop with men and women involved in artisanal fishing – fishermen and fisherwomen, mollusk gatherers (called piangüeras in this region of the country), and small-scale traders. Together with them, we analyze the effects of climate change at the local level, explore how they affect their daily lives, and affirm that their communities are subjects of rights. Even as these communities’ work is threatened and their rights are violated, they remain active in continuing to care for the ocean and to maintain the traditions of artisanal fishing.

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This Guest Article is part of a project that seeks to raise awareness and build momentum and knowledge around the ICJ advisory opinion on obligations of States in respect of climate change and to promote a better understanding of the implications of the advisory opinion among sustainable development decision makers.