Magnificent: A humpback whale breaches near a research vessel off the coast of South Africa. Photo: Stephanie Plon
In the law of the sea, which is international law about the relationship between states and how they conduct themselves at sea, there has been an evolution in ocean governance, from the attitude that you can do whatever you like out there — hence the expression “freedom of the seas” — to the awareness of a pressing need for far greater collective ocean governance.
In practical terms, this requires addressing how the law of the sea integrates with the protection of the ocean environment, the activities of stakeholders and users of the ocean, and the protection of human rights.
The focus so far on the intersection between human rights and the environment has mainly been on the rights of people who belong to communities that are reliant on the oceans, and whose rights are frequently negatively impacted when the ocean and its immediate environment are violated. Recently there has been more attention on the need to protect the rights of ecosystems, as part of a new international drive to recognise and promote the rights of nature.
When it comes to the rights of people who live near the ocean or are reliant on it, rights that are affected include the right to a clean, healthy and sustainable ocean environment, the right to dignity, the right to cultural practices and the right to benefit from livelihoods linked to the ocean and ocean development, such as marine and maritime work and opportunities.
It is not easy to bring the law of the sea and environmental and human rights law together, but they are slowly coming closer, and this is essential to find common legal ground and determine the way forward for ocean governance. Fortunately, there is a great desire to bridge disciplinary boundaries.
One of the issues that need to be addressed is how the Convention on Biodiversity links with the law of the sea. How do you decide which one prevails, and how do the courts respond to the needs of different developmental paths in the ocean environment?
Marine spatial planning is part of addressing this. It endeavours to accommodate a wide range of ocean stakeholders, including the environment, but at the moment this is restricted to the local level. There is, however, discussion about expanding it to international levels.
The relationship between the oceans, justice and human rights was the subject of a conference in November hosted by the Department of Public Law at Nelson Mandela University in collaboration with the SARChI Chair in the Law of the Sea and Development in Africa (Nelson Mandela University), the Warwick University Law School and the South African International Maritime Institute.
It was an opportunity for local and international legal research experts, early career researchers and ocean community representatives to engage on a wide range of issues related to ocean governance, including sustainability, development, climate change, environmental justice and the human rights of people living in proximity to the ocean.
It was wonderful to see international legal experts engaging with members of coastal communities who have direct experience with the ocean; many commented that they felt far richer for the experience. For example, fisherfolk who catch calamari (also called chokka) know the weather so intimately that they can predict months in advance whether they are going to have a good or bad season.
This experiential knowledge, although not peer-reviewed, has immense value. The experts in the law of the sea, environmental justice and human rights are committed to resolving problems, in a practical and just manner, with members of these communities.
One of the issues discussed was that the right to benefit sustainably from the sea should be everyone’s right, not just the right of the wealthy and powerful who have the resources to get what they want and make themselves heard. Human and environmental justice acknowledge that the smaller players are just as important, and should be given equal, if not more, attention.
Small-scale fishers are a case in point. The use of the term “small-scale” has spawned a legacy of disregard, mainly because these fishers are poorly resourced and inadequately represented. They are not likely to be able to fly to conferences and provide input on legislation, but this is precisely why they should be consulted in their communities. This was not done in Shell’s application to conduct seismic exploration along the Wild Coast.
The appeal against seismic exploration was upheld in the High Court in Makhanda in 2022 on the basis of a lack of consultation with the affected communities. Community participation does not mean talking to the monarchs or pretending to consult residents. Meaningful engagement and research require a proper understanding of what it is that impacts people, and how it impacts them.
Academics at the conference commented that they tend to focus on scientific knowledge and research, but that the transdisciplinary aspect of ocean engagement is far better understood when they move beyond their individual disciplines. Knowledge creation involves communities affected by environmental and human rights violations, and who have profound knowledge about how their environments work and change.
There cannot be talk about ocean justice and human rights without actively involving the people whose lives are entwined with the ocean. They need to be given the floor to voice their experience and knowledge, which includes climate change. They are the ones who, when they disagree with scientific findings, say “if you are going to convince me, the knowledge will have to be better as it does not coincide with our experience”.
South Africa’s Constitution is one of the few in the world that requires both government and private persons to respect the rights of others, which includes consulting with affected communities when ocean developments and projects are planned.
What needs to be understood is what is and isn’t important in terms of putting the different areas of law relating to oceans, justice and human rights into practice. This is how we promote a society that respects people’s rights, the natural environment, sustainable development and the law of the sea.
This article is based on conversations the author had with Professor Joanna Botha, head of the Department of Public Law, Faculty of Law, Nelson Mandela University and Professor Patrick Vrancken, head of the South African Research Chairs Initiative (SARChI) in the Law of the Sea and Development in Africa.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.