In 2025, following the 2024 advisory opinion (AO) of the International Tribunal for the Law of the Sea on Climate Change (here), the International Court of Justice (ICJ) and the Inter-American Court of Human Rights (IACtHR) issued their AOs on Climate Change (here and here, respectively). These historic AOs have generated extensive commentary. This blog shifts focus from the climate change realm by extracting the ICJ and IACtHR’s findings on the Human Right to a Clean Healthy and Sustainable Environment (HRHE) and applying them in the context of an extractive industry that has the potential to cause significant harm to the marine environment: deep-seabed mining (DSM).
Within DSM discourse, human rights considerations are frequently treated as peripheral, reflecting an outdated conception of the Ocean as so vast that human activities within it are presumed incapable of causing meaningful harm to people. This assumption rests on the idea that the impacts of DSM are confined to remote marine environments or areas beyond national jurisdiction, and therefore remain disconnected from human populations. Because DSM activities are expected to occur far from visible human communities, their social and human rights implications have frequently been overlooked. However, emerging scientific evidence increasingly demonstrates the vital ecosystem functions and processes that the deep Ocean provides and its interconnectivity with broader marine processes. This includes biodiversity maintenance, nutrient cycling, climate regulation, carbon sequestration, and habitat and trophic support (see Thurber 2014; DOSI 2022). Concerns regarding sediment plumes, noise pollution, habitat destruction and uncertain cumulative impacts challenge the notion that harm from DSM can be geographically contained (see, for example, Gazis 2025; Williams 2025). Against this backdrop, the framing of DSM as a purely environmental or technical issue is increasingly untenable. DSM poses a serious risk to the marine environment and, by extension, to the HRHE and the broader range of fundamental human rights that depend upon healthy ecosystems and their effective protection by States.
Recognition and content of the HRHE
The HRHE was formally recognised by the UNGA in 2022 through UNGA Resolution 76/300. Although UNGA resolutions are not legally binding, the Resolution reflects widespread international acceptance of the HRHE as a fundamental human right. The HRHE is also legally recognised through numerous international and regional instruments, as well as domestic legal systems. According to a 2022 Report of the Special Rapporteur on the HRHE, 110 States recognise the right constitutionally, while more than 80 per cent of UN Member States provide legal recognition in some form, giving rise to binding obligations on governments.
The HRHE encompasses both procedural elements (access to information, public participation in decision-making, and access to justice) and substantive elements, including the protection of biodiversity and healthy ecosystems. Harm to biodiversity directly affects the enjoyment of a range of other human rights, including the rights to life, health, food, culture, development and an adequate standard of living, as well as principles of intergenerational equity. The HRHE therefore requires States to adopt a human rights-based approach to the protection, conservation, restoration, equitable use of, and benefit from healthy ecosystems and biodiversity. This relationship between human rights and healthy ecosystems has been emphasised by the Special Rapporteur on the HRHE, including some reports which specifically address the Ocean and DSM (see Human rights and DSM, The Ocean and human rights report and Human Rights depend on healthy biosphere report).
The HRHE’s unequivocal interconnection with other Human Rights
The HRHE’s centrality to protecting other human rights was explicitly recognised by both the ICJ and the IACtHR in their climate change AOs. The ICJ affirmed that environmental protection is a precondition for the enjoyment of human rights (para 373), and that States can only fulfil their obligations under human rights treaties where they also ensure protection of the HRHE. In this regard, the ICJ recognised the HRHE as both inherent in, and essential to, the enjoyment of other human rights (see paras 373; 393). Similarly, the IACtHR described the HRHE as “a fundamental right for the existence of humanity, with both individual and collective connotations.” It further observed that environmental degradation may impair the enjoyment of both the HRHE and other human rights, such that “protection of the right to a healthy environment necessarily results in the protection of substantive human rights.” (para 274)
In the DSM context, the significance of these findings is that where DSM poses risks of serious harm to the marine environment sufficient to impair the HRHE, corresponding risks to other fundamental human rights potentially may also be inferred. This is particularly significant given the evidentiary difficulties associated with proving direct infringements, or direct risks of infringement, arising from DSM activities conducted in remote areas of the international seabed beyond national jurisdiction. Rather than requiring proof of immediate or geographically proximate human impacts, the human rights implications of DSM may instead be understood through its cumulative and transboundary effects on the marine environment, the degradation of which may generate foreseeable downstream effects for geographically distant communities.
Viewed through the lens of States’ human rights obligations, this suggests that States may be required to adopt preventative and precautionary measures to protect the marine environment from the risks posed by DSM, to ensure the effective enjoyment of the HRHE and other interconnected substantive rights. This may include, where the risk of serious environmental harm cannot be excluded, refraining from authorising or supporting DSM activities.
The Jus cogens prohibition on conduct causing irreversible environmental damage
Perhaps the most legally consequential aspect of the IACtHR’s AO relating to HRHR was its recognition that prohibitions against conduct causing irreversible harm to the planet’s ecological equilibrium may possess jus cogens status. A peremptory norm of general international law (“jus cogens”) is a norm accepted and recognised by the international community of States as a whole from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character (Art. 53 of the Vienna Convention on the Law of Treaties (VCLT)). Therefore, recognition of a prohibition as jus cogens places it at the highest status in the hierarchy of international law.
The IACtHR did not declare the HRHE itself to be a jus cogens norm. Rather, it centred its reasoning on the proposition that the “equilibrium of the conditions for healthy life in the common ecosystem” is indispensable for present and future generations to inhabit the planet. The Court reasoned that without legal protection of this ecological equilibrium, the conditions necessary to guarantee and enforce other existing non-derogable rights, including the rights to life, integrity, health, and non-discrimination, would be undermined (para 293).
In reaching this conclusion, the IACtHR relied on foundational principles of international environmental law, including the precautionary principle, the polluter pays principle, and the obligation erga omnes not to cause transboundary environmental damage. On this basis, the Court concluded that “the progressive crystallization of certain obligations reveals the creation of a body of law, the protection of which cannot be derogated, particularly regarding the risk of irreversible damage to the ecosystems that sustain life” (para 287). Therefore, the IACtHR indicated that the obligation to preserve the planet’s ecological equilibrium should be understood as a peremptory international obligation (para 290).
The IACtHR further reasoned that prohibitions arising from the obligation to preserve the planet’s ecological balance posses a jus cogens character, as they are a precondition to the enjoyment of other fundamental rights that already possess peremptory status. In this regard, the IACtHR relied on the principle of effectiveness (“effet utile”), rooted in Article 31 (1) VCLT, to justify the development of these peremptory prohibitions (para 291-292). This principle requires legal obligations to be interpreted and applied in a manner that enables them to achieve their protective purpose. The Court reasoned that because rights such as life cannot be effectively guaranteed without preserving the ecological conditions necessary for their enjoyment, obligations protecting the planet’s ecological equilibrium must be acknowledged under the principle of effectiveness, and therefore be treated as non-derogable.
The IACtHR therefore recognised the existence of a jus cogens prohibition on anthropocentric conduct causing irreversible harm to the vital equilibrium of the planetary ecosystem.
The deep Ocean is home to diverse and unique ecosystems and species, and its functions and processes contribute to the ecological balance and resilience of the Ocean and planet. Applying the IACtHR’s findings to the DSM context, where the best available scientific evidence demonstrates that DSM activities pose a risk of irreversible harm to the ecological balance of the deep Ocean, and therefore to the planetary ecosystem more broadly, States that authorise or conduct such activities may risk breaching the non-derogable obligations arising from the peremptory prohibition against conduct causing irreversible harm to the vital equilibrium of the planetary ecosystem.
In this regard, the IACtHR, in fact, listed specific conduct that can be identified as a direct cause of irreversible effects on the vital equilibrium of the ecosystems, which, inter alia, include (para 288):
- the destruction or extensive and lasting damage to biodiversity with a mass and irreversible loss of species and the degradation of critical habitats; and
- the persistent and large-scale pollution of vital resources, such as potable water sources, the oceans and the atmosphere, with long-lasting and irreversible effects on the health of species and the viability of ecosystems, including the release of persistent toxic substances.
There is ample evidence of conduct that causes irreversible damage in the case of climate change. The scientific certainty of such irreversible damage is less clear with DSM, not least because exploitation has not commenced. Nevertheless, existing evidence already indicates that DSM may cause extensive and lasting damage to biodiversity, potentially resulting in irreversible species loss and habitat degradation. For example, the removal of nodules has been shown to lead to significant species loss (see Simon-Lledó 2019). There is also evidence that pollution arising from DSM activities may cause long-lasting adverse effects on other ecosystems, including, for example, through the transport of suspended sediment and pollutants from mining sites (see Haalboom 2022). In addition, pollution from DSM may negatively impact fisheries and migratory species (see Amon 2023).
The IACtHR ultimately indicated that “all States should cooperate to end conducts that violate the prohibitions derived from peremptory norms of general international law that protect a healthy environment” (para 294). Unlike the climate change context where harmful conduct that impacts a healthy environment is ongoing, in the case of DSM, international cooperation does not require States to end ongoing harmful conduct, but rather to ensure that such conduct does not commence in the first place.
Conclusion
The recent ICJ and IACtHR AOs provide authoritative confirmation of the intrinsic relationship between environmental protection and the enjoyment of fundamental human rights. In particular, both courts expressly recognised that the HRHE is both a precondition for, and an inherent element in, the enjoyment of other fundamental human rights. This recognition underscores the centrality of the HRHE within contemporary international law. The effective enjoyment of fundamental human rights is contingent upon environmental protection, now increasingly articulated through States’ obligations to respect, protect and fulfil the HRHE. Accordingly, when taking decisions or authorising activities related to DSM, States must consider their obligations to respect, protect and ensure the HRHE, alongside the broader constellation of interconnected human rights that depend upon a healthy marine environment.
Moreover, the IACtHR’s finding that there exists a jus cogens prohibition against anthropocentric conduct causing irreversible harm to the vital equilibrium of the planetary ecosystem is highly relevant to DSM discourse. Although significant scientific uncertainty remains, there is growing evidence that DSM may cause severe and potentially irreversible damage to marine ecosystems that are vital for both human and Ocean health. Where such activities risk threatening ecosystems that sustain life, States that authorise or conduct DSM could be found in breach of the peremptory obligation to preserve the planet’s ecological balance. In turn, this may amount to a failure to fulfil obligations necessary to give effect to fundamental and non-derogable human rights, potentially giving rise to State responsibility.
