Climate change has adversely impacted fishers, fisherfolks, and coastal communities across the Caribbean.  The status of the once-flourishing coastal communities of fishers and fisherfolk in the Caribbean has reached a critical point, as the fisheries sector of Caribbean Small Island Developing States (“SIDS”) is considered the most vulnerable in the world to climate shifts.

This contribution deals with the effects of climate change on the fishing cultural history and economy of the Caribbean.  It highlights the looming threat to the survival of these communities and possible legal recourse for those affected in light of the applicable international human rights instruments and the concept of transboundary jurisdiction.

The effects of climate change on the Caribbean include “gradually shifting weather patterns, rising sea levels, coral reef bleaching, sargassum influxes and increased frequency of high intensity storms and hurricanes.”1Marquita Sugrim, Fisheries sector in Caribbean is the most vulnerable in the world to climate change, U.N. Barbados and the Eastern Caribbean (April 15, 2019), https://easterncaribbean.un.org/en/92253-fisheries-sector-caribbean-most-vulnerable-world-climate-change.X1  Philip Davis, Prime Minister of The Commonwealth of the Bahamas characterizes climate change “like a wildfire slowly engulfing our community of nations.  For now, the small island developing nations are being set aflame, but eventually, if nothing is done, the entire community will burn,”2Prime Minister Philip Davis’ Remarks at the 17th Annual CSB/SJU Eugene J. McCarthy Lecture Series, Office of the Prime Minister, Commonwealth of the Bahamas (Dec. 11, 2023), https://opm.gov.bs/prime-minister-davis-sju-mccarthy-lecture/?utm_source=chatgpt.com.X2 with changes in the marine life, deteriorating water and aquifer conditions, and increase of floods and hurricanes.3Mottley to Amanpour:  A lot of us that are going to be affected before Shanghai and Miami at 00:11, YouTube (Nov. 2, 2021), https://www.youtube.com/watch?v=Tv7RW1sRKB4.X3

For example, climate change has been influencing migratory tendencies and spawning behavior of flying fish and thus indirectly affecting the quantity of flying fish in the waters surrounding Barbados since the early 2000s.4Daphne Ewing-Chow, Barbados’ National Fish Is In Hot Water, Forbes (Feb. 28, 2023), https://www.forbes.com/sites/daphneewingchow/2023/02/28/barbados-national-fish-is-in-hot-water/.X4  The warming waters forced fish to move further south into the waters of Trinidad and Tobago, which ultimately led to a dispute between Barbados and Trinidad and Tobago at the Permanent Court of Arbitration over the right of Barbadian fisherfolk to fish in the Trinidad and Tobago waters.  The court’s 2006 decision sought to resolve the maritime border dispute and solidify the boundary between the two states.  The court emphasized that “Trinidad and Tobago and Barbados are under a duty to agree upon the measures necessary to coordinate and ensure the conservation and development of flying fish stocks, and to negotiate in good faith and conclude an agreement that will accord fisherfolk of Barbados access to fisheries within the Exclusive Economic Zone of Trinidad and Tobago.”5Barbados v. Trinidad and Tobago, PCA Case No. 2004-02, Award, ¶ 385 (April 11, 2006), https://legal.un.org/riaa/cases/vol_XXVII/147-251.pdf.X5

The shifting migration of flying fish is only one challenge faced by fisheries, fisherfolk, and coastal communities in the Caribbean.  Caribbean SIDS are also challenged by the problem of cyclical loss and damage (“L&D”) from increasingly aggressive climate-linked hurricanes and floods, which damage critical infrastructure.  The economic cost from L&D is staggering for SIDS.6Adelle Thomas et al., Loss and Damage Costing and Financing Mechanism:  Caribbean Outlook, Impact, https://ca1-clm.edcdn.com/assets/lnd_costing_and_financing_mechanisms_caribbean_outlook.pdf.X6  For example, “[i]n 2004, Hurricane Ivan caused damage in Grenada worth a staggering 200 per cent of GDP,” and “Dominica, which closely escaped Beryl’s clutches, is now one of the most heavily indebted countries in the world after Hurricane Maria (2017) wiped out 226 per cent of GDP.”7James Ellsmoor, From Barbados to Baku:  Supporting island solutions to climate change, The Gleaner (Aug. 18, 2024), https://jamaica-gleaner.com/article/focus/20240818/james-ellsmoor-barbados-baku-supporting-island-solutions-climate-change.X7  Most recently, Hurricane Beryl was no exception.  Beginning as a long-lived tropical cyclone and strengthening to a category 5 hurricane, Beryl hit the southern coast of Barbados and other areas of the island in late June through early July 2024,8Hurricane Beryl 2024, National Weather Service, https://www.weather.gov/lch/2024Beryl.X8 disrupting several businesses in the fishing industry with fisherfolk experiencing substantial loss of equipment, stocks, and supplies.9Barbados, Grenada, Jamaica, and Saint Vincent and the Grenadines | Hurricane Beryl - Emergency Appeal Operational Strategy (Appeal No. MDRS2001), IFRC (July 5, 2024), https://reliefweb.int/report/grenada/barbados-grenada-jamaica-and-saint-vincent-and-grenadines-hurricane-beryl-emergency-appeal-operational-strategy-appeal-no-mdrs2001.X9

Climate activism in the Caribbean has inevitably become economic activism.  The economic situation in SIDS has been called to attention as follows:

According to the World Bank, these climate-driven damages have made it difficult for the Caribbean economies to achieve anything resembling healthy growth.  Since 1980, the cumulative cost of disasters has amounted to more than half of a year’s worth of total economic product for 14 Caribbean nations.  The costs have eclipsed average annual GDP growth in five of them.  There are poor countries with more debt, and there are island countries in the Pacific facing more imminent climate threats, but nowhere in the world do the debt and climate vulnerabilities overlap to the extent they do in the Caribbean.  Fixing the debt crisis .  .  . ‘isn’t about countries mopping up their fiscal discipline.  It is that countries on the front line face a different kind of risk.  They face wipeout risk.’10Abraham Lustgarten, Barbados Resists Climate Colonialism in an Effort to Survive the Costs of Global Warming, Pro Publica (July 27, 2022), https://www.propublica.org/article/mia-mottley-barbados-imf-climate-change (emphasis added).X10

United Nations Special Rapporteur Boyd has recognized that “[t]he planetary environmental crisis affects everyone, everywhere, but not equally.”1Report of the Special Rapporteur on Women, Girls and the Right to Clean, Healthy and Sustainable Environment, David R. Boyd, A/HRC/52/33, 52nd session, Feb. 27-Mar. 31, 2023, ¶ 2.X1  He further found that “almost no countries have policy frameworks or mechanisms in place that would enable a synergistic view (let alone implementation) of gender and environmental goals” and that “[t]he lack of gender—and sex—disaggregated data regarding many environmental issues renders women, girls and their needs invisible to policymakers.”2Id. ¶¶ 10, 14.X2

In the context of fisheries, the UN Food and Agriculture Organization’s Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries in the Context of Food Security and Poverty Eradication (“SSF Guidelines”) recommend that states should “secure effective dissemination of information on gender and women’s role in small-scale fisheries and . . . [that] steps . . . need to be taken to improve women’s status and their work.”3Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries in the Context of Food Security and Poverty Eradication (“SSF Guidelines”), Food and Agriculture Organization of the United Nations, 2015, ¶ 13.3, https://openknowledge.fao.org/server/api/core/bitstreams/edfffbfc-81e5-4208-a36f-334ff81ac10f/content.X3

The SSF Guidelines further recognize “the role women often play in the post-harvest sector and support improvements to facilitate women’s participation in such work.”4Id. ¶ 7.2.X4  In this context, the SSF Guidelines emphasize the effects of climate change and provide that “[a]ll parties should take into account the impact that climate change and disasters may have on the post-harvest and trade subsector in the form of changes in fish species and quantities, fish quality and shelf-life, and implications with regard to market outlets.”5Id. ¶ 9.6.X5

Women in the fisheries, fisherfolk and coastal communities in the Caribbean have been historically disadvantaged and disproportionately affected by changes in the fishing industry.  Hurricane Beryl—the latest in a chain of environmental disasters in the Caribbean—has significantly affected fisheries, fisherfolk and coastal communities.  However, as the International Federation of Red Cross and Red Crescent Societies (“IFRC”) highlights, “women’s roles in the [fishing] sector often receive less visibility in media coverage.”6IFRC, A Secondary Data Review on the Barbados Fishery Livelihoods Opportunities: A Focus on Women’s Role in the Value Chain, at 1 [hereinafter IFRC Assessment].X6  Lack of visibility into environmental impact on women’s jobs in the sector has disproportionately affected women’s access to targeted and need-based assistance.7Id. at 3.X7

The reduced duration of the fishing season due to climate-related challenges has also exacerbated uncertainties and instabilities for women in the fishing industry, who frequently are the primary breadwinner in their family.8Barbados Showcases Small-Scale Women Fisherfolk at WTO, Ministry of Foreign Affairs and Foreign Trade Barbados (Jan. 30, 2024), https://www.foreign.gov.bb/barbados-showcases-small-scale-women-fisherfolk-at-wto/.X8  Women’s struggles in the fishing industry are likely to have compounding effects in the long-term, as “traditional knowledge and skills” are passed down “through generations . . . reinforcing the role of women in the fisheries sector.”9IFRC Assessment, supra note 16, at 4.X9  Carefully collected and transferred, women’s traditional knowledge of the industry “contributes toward the sustainable use and conservation of marine and coastal ecosystems.”10Maria Pena et al., Women in Fisheries 2019 Forum:  Summary Report, Center for Resource Management and Environmental Studies at 3, University of the West Indies, Barbados (2019).X10  This traditional knowledge and culture are now at risk in the face of growing environmental challenges.

Climate change is a human rights issue,1Climate Change is a Matter of Justice—Here’s Why, UN Development Programme (June 30, 2023), https://climatepromise.undp.org/news-and-stories/climate-change-matter-justice-heres-why.X1 which is the recognition that has evolved from climate change being regarded as a purely environmental issue.2Sydney Young, Human Rights and the Environment:  Interview with UN Special Rapporteur David R. Boyd, Harvard Int’l Rev. (Sept. 7, 2021), https://hir.harvard.edu/human-rights-and-the-environment-interview-with-un-special-rapporteur-david-r-boyd/.X2   Initially, the global community focused on environmental treaties such as the United Nations Framework Convention on Climate Change (UNFCCC) of 1992, followed by the Kyoto Protocol and the Paris Agreement.  These agreements were primarily geared towards reducing emissions and safeguarding natural ecosystems, without an explicit focus on human rights. 

Over time, scholars, activists, and policymakers began to recognize that the impacts of climate change extend far beyond environmental degradation.  This evolution gained further support as international and regional bodies began to interpret environmental harm through a human rights lens.  The United Nations Environment Programme has stated that “[a] clean, healthy and functional environment is integral to the enjoyment of human rights.”3Climate Change and Human Rights at VIII, UN Environmental Programme (Dec. 2015), https://wedocs.unep.org/bitstream/handle/20.500.11822/9530/-Climate_Change_and_Human_Rightsh uman-rights-climate-change.pdf.pdf?sequence=2&amp%3BisAllowed=.X3  The natural environment and human societies are severely impacted by anthropogenic climate change, which poses a direct threat to human lives and safety by undermining access to water, food, and other key resources that support human life.4Id.X4

The adverse impacts of climate change profoundly affect the full enjoyment of human rights both directly and indirectly, “with cascading implications for different interconnected rights,”5Human Rights Council, Analytical Study on the Impact of Los and Damages from the Adverse Effects of Climate Change on the Full Enjoyment of Human Rights, Exploring Equity-Based Approaches and Solutions to Addressing the Same, A/HRC/57/30 (Aug. 28, 2024), https://www.ohchr.org/sites/default/files/2024-08/a-hrc-57-30-aev.pdf.X5 and they exacerbate existing inequalities, in particular with respect to mariculture experienced by fisheries, fisherfolk, and coastal communities, including indigenous people.6IPCC, Climate Change 2022:  Impacts, Adaptation and Vulnerability, Full Report, at 469, https://www.ipcc.ch/report/ar6/wg2/downloads/report/IPCC_AR6_WGII_FullReport.pdf [hereinafter IPCC Climate Change Report 2022]; see also supra Section II.X6  The disruption caused by climate change further erodes the social, economic, and cultural rights of these communities.7IPCC Climate Change Report 2022, supra note 26, at 485.X7  In its Advisory Opinion No. OC-23/17, the Inter-American Court of Human Rights (“IACtHR”) recognized the “undeniable relationship between the protection of the environment and the realization of other human rights” and that the “adverse effects of climate change affect the real enjoyment of human rights,”8Inter-American Court of Human Rights (“IACtHR”), Advisory Opinion OC-23/17, ¶ 47 (Nov. 15, 2017).X8 emphasizing the “close relationship between the exercise of economic, social and cultural rights [including] the right to a healthy environment and [the exercise] of civil and political rights,”9Id.X9 which may be jeopardized as a consequence of climate change.

The American Convention on Human Rights (“ACHR”) and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“San Salvador Protocol”) are founded on the intention to create “a system of personal liberty and social justice based on respect for the essential rights of [humankind],” which are internationally protected, and whereby “everyone may enjoy economic, social, and cultural right, as well as [their] civil and political rights.”10American Convention on Human Rights Preamble, Nov. 22, 1969, 1143 U.N.T.S. 123 [hereinafter ACHR] (“Reaffirming their intention to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man; Recognizing that the essential rights of man are not derived from one’s being a national of a certain state, but are based upon attributes of the human personality, and that they therefore justify international protection in the form of a convention reinforcing or complementing the protection provided by the domestic law of the American states . . .  Reiterating that, in accordance with the Universal Declaration of Human Rights, the ideal of free men enjoying freedom from fear and want can be achieved only if conditions are created whereby everyone may enjoy his economic, social, and cultural rights, as well as his civil and political rights”); see also Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights Preamble, Nov. 17, 1988 [hereinafter San Salvador Protocol] (“Bearing in mind that, although fundamental economic, social and cultural rights have been recognized in earlier international instruments of both world and regional scope, it is essential that those rights be reaffirmed, developed, perfected and protected in order to consolidate in America, on the basis of full respect for the rights of the individual, the democratic representative form of government as well as the right of its peoples to development, self-determination, and the free disposal of their wealth and natural resources.”).X10  The ACHR and the San Salvador Protocol provide the legal framework under which the rights to life and adequate standard of living, food and water, a clean, healthy, and sustainable environment, and culture constitute fundamental human rights protected by international law.

A. Right to Life and an Adequate Standard of Living

Under Articles 4(1) and 5(1) of the ACHR and Article 10 of the San Salvador Protocol, the right to life of individuals shall be respected, providing that “every person has the right to have his physical, mental and moral integrity respected,”11San Salvador Protocol, supra note 30, arts. 4(1), 5(1).X11 and “everyone shall have the right to health [at] the highest level of physical, mental and social well-being.”12Id. art. 10.X12  These rights have been affirmed by the court in Poblete Vilches v. Chile, a case concerning the death of an elderly patient from inappropriate medical services due to his age, by emphasizing that the right to health is a fundamental human right “indispensable for the exercise of other human rights” that covers a “state of complete physical, mental and social well-being,” beyond the mere absence of diseases or infirmity, that allows all individuals to conduct a “life in dignity.”13Poblete Vilches v. Chile, IACtHR, Judgement, ¶ 188 (Mar. 8, 2018).X13   To this end, environmental pollution may interfere with the enjoyment of the right to life by affecting the health of individuals and vulnerable communities.14IACtHR, Advisory Opinion OC-23/17, supra note 28, ¶ 110.X14  The IACtHR further stressed “the interdependence of civil and political rights and economic, social, cultural and environmental rights, because they should be understood integrally and as a whole as human rights, without any hierarchy, and be enforceable in all cases.”15Poblete Vilches ¶ 100.X15

B. Right to Food and Water

In the Yakye Axa v. Paraguay case, the IACtHR held that the protection of the right to ancestral land of indigenous peoples includes the “protection of the human rights of a collectivity whose economic, social and cultural development is based on its relationship with the land.”16Yakye Axa v. Paraguay, IACtHR, Judgment, ¶ 120(b) (June 17, 2005).X16  Accordingly, the court concluded that “conditions that impede or obstruct access to a decent existence should not be generated,”17Id. ¶ 161.X17 which includes also anthropogenic climate change as pollution may adversely affect the quantity or quality of food and water.18IACtHR, Advisory Opinion OC-23/17, supra note 28, ¶ 111.X18  The court expressly considered the right to food and water to be “particularly vulnerable to environmental impact,” and that the effects on these rights are tangible with “greater intensity by certain groups in vulnerable situations,” including minorities and groups that “depend economically or for their survival on environmental resources from the marine environment . . . or run a special risk of being affected owing to their geographical location, such as coastal and small island communities,” as is the case of the fisheries, fisherfolk and coastal communities of the Barbados.19Id. ¶¶ 66-67.X19

C. Right to a Clean, Healthy, and Sustainable Environment

Pursuant to Article 11 of the San Salvador Protocol, “[e]veryone shall have the right to live in a healthy environment and to have access to basic public services” and “States Parties shall promote the protection, preservation, and improvement of the environment.”20ACHR, supra note 30, art. 11.X20  By referring to its Advisory Opinion in the Lhaka Honhat case, the IACtHR reiterated that the right to a healthy environment “constitutes a universal value [that is] fundamental . . . for the existence of humankind” and that it protects all the components of the environment, including forests, rivers, and seas “even in the absence of the certainty or evidence of a risk to individuals.”21Indigenous Communities Members of the Lhaka Honhat Association v. Argentina, IACtHR, Judgement, ¶ 203 (Feb. 6, 2020).X21  The court noted that the protection of the environment is fundamental not only for the benefit of humanity but also “for the other living organisms with which we share the planet.”22Id.X22

The court further recalled that the human rights of certain vulnerable groups, including indigenous people and coastal communities, are particularly adversely affected by environmental changes.23Id. ¶ 209.X23

D. Right to Benefits of Culture

Under Article 14 of the San Salvador Protocol, the right to the benefits of culture is protected, stating that everyone can “take part in the cultural and artistic life of the community.”

As noted by the court in the Yakye Axa case, indigenous peoples have a close relationship with their land, which is a “fundamental basis for their culture, spiritual life, wholeness, economic survival, and preservation and transmission to future generations.”24Yakye Axa ¶ 131; see also IACtHR, Advisory Opinion OC-23/17, supra note 28, ¶ 113 (“[I]n the specific case of indigenous and tribal communities, the Court has ruled on the obligation to protect their ancestral territories owing to the relationship that such lands have with their cultural identity, a fundamental human right of a collective nature that must be respected in a multicultural, pluralist and democratic society.”).X24  Indigenous people are inherently connected to their territories, which not only provide them with means of subsistence (e.g., food, water), but are also an integral part of their cultural identity.25IACtHR, Advisory Opinion OC-23/17, supra note 28, ¶ 135 (“[T]he culture of the members of the indigenous communities directly relates to a specific way of being, seeing, and acting in the world, developed on the basis of their close relationship with their traditional territories and the resources therein, not only because they are their main means of subsistence, but also because they are part of their worldview, their religiosity, and therefore, of their cultural identity.”).X25  In Kaliña and Lokono Peoples v. Suriname, the IACtHR emphasized that indigenous people are protected by international human rights law, “which guarantees the right to the collective territory they have used and occupied traditionally, derived from the use and occupation of the land and of the resources necessary for their physical and cultural survival.”26Kaliña and Lokono Peoples v. Suriname, IACtHR, Judgment, ¶ 125 (Nov. 25, 2015).X26

In fact, given that indigenous people have a way of life closely associated with their territories, the use of their resources should be protected since they “have a vital role in environmental management and development because of their knowledge and traditional practices.”27Lhaka Honhat ¶ 250.X27  Indigenous people are fundamental for the conservation of nature since their traditional uses of natural resources entail sustainable practices and, therefore, respecting indigenous peoples’ rights “may have a positive impact on environmental conservation.”

However, climate change is significantly impairing the ability of indigenous and fisheries, fisherfolk and coastal communities in the Caribbean to fully enjoy their traditional way of life and ability to utilize their natural resources, particularly since women play a fundamental part in ensuring traditional fishing knowledge and skills are preserved and passed down through generations.28See supra Sections I-II; see also IACtHR, Advisory Opinion OC-23/17, supra note 28, ¶ 66.X28

E. State Responsibility

In its Advisory Opinion No. OC-23/17, having set out the rights endangered by climate change, the IACtHR then significantly expanded the understanding of state responsibility for environmental protection in the context of human rights.  The court explicitly recognized that the customary international law principle of “no harm,” requiring states to ensure that activities within their jurisdiction or control do not cause environmental damage to other states or areas beyond their national jurisdiction, applies to human rights.29IACtHR, Advisory Opinion OC-23/17, supra note 28, ¶ 98.X29  This incorporation of the “no harm” principle into human rights jurisprudence establishes that states have specific international obligations regarding human rights violations resulting from climate change, and they can be held accountable for breaching these obligations even when they impact individuals or communities in other states. 

In the same vein, the IACtHR broadened the interpretation of jurisdiction under Article 1(1) of the ACHR by clarifying that jurisdiction extends beyond a state’s territorial boundaries:

For the purposes of the American Convention, when a transboundary harm occurs that may affect rights [protected by the Convention], it is understood that the persons whose rights have been threatened are found to be under the jurisdiction of the State of origin if there exists a causal relationship between the event that originated in its territory and the impact upon the human rights of persons outside its territory.30Id. ¶ 101.X30

This expansive view of jurisdiction allows individuals to bring claims against a state for transboundary environmental harm that affects their fundamental human rights, even if they are outside the state’s borders.  However, the court emphasized that this extraterritorial jurisdiction is not unlimited or automatic.  Rather, a state’s jurisdiction extends beyond its territorial boundaries in cases where there is a “causal relationship between the polluting activities in the state’s territory and the cross-border impact on rights.”31Maria L. Banda, Inter-American Court of Human Rights’ Advisory Opinion on the Environment and Human Rights, American Society of International Law, 22 ASIL Insights, Issue 6 (2018), https://www.asil.org/insights/volume/22/issue/6/inter-american-court-human-rights-advisory-opinion-environment-and-human#_edn19.X31  The court provided guidance on how to determine when such a causal relationship exists:

1. Foreseeability: The transboundary harm must be a foreseeable consequence of the state’s actions or omissions.  This requires states to conduct thorough assessments of the potential impacts of their activities, particularly those with known environmental risks.32IACtHR, Advisory Opinion OC-23/17, supra note 28, ¶¶ 156-61.X32
2. Significance: The harm must be “significant.”  While the court did not provide a precise definition of significance, it suggested that the harm should be more than minor or negligible.33Id. ¶¶ 134-39.X33
3. Direct link: There must be a clear and direct link between the state’s activities and the transboundary harm.  This requirement helps to limit the scope of extraterritorial jurisdiction to cases where the state’s responsibility is clear and demonstrable.34Id. ¶ 103.X34

The effects of climate change relate to human rights issues beyond environmental rights; they threaten the very fabric of Caribbean fishing communities.  The once-thriving fisheries sector, deeply rooted in cultural heritage and local economies, now faces unprecedented challenges.  Shifting fish populations, the overwhelming spread of sargassum seaweed, and the increasing frequency of destructive hurricanes have all but dismantled the livelihoods of fishers, fisherfolk, and coastal communities.  This disruption is felt most acutely by women, whose pivotal roles in both the fishing industry and the preservation of traditional knowledge are often overlooked.

The impact of climate change infringes on basic human rights, including the right to food, water, a healthy environment, and the right to cultural identity.  As these communities grapple with the loss of their natural resources, they also face the erosion of their cultural heritage.  The applicable legal and human rights frameworks recognize the intertwined nature of environmental and social justice, and that state responsibility for such infringements shall be transboundary.

To protect the future of Caribbean fisherfolk, global cooperation and a comprehensive approach to both climate action and human rights are essential.  The survival of these communities depends not only on addressing the immediate effects of climate change but also on ensuring that their fundamental human rights to livelihood, culture, and a healthy environment are safeguarded for generations to come.