Do greenhouse gas emissions from the burning of fossil fuels count as ocean pollution under the Law of the Sea?
That's the question that nine small island states that are low emitting but extremely vulnerable to the climate crisis have asked the International Tribunal for the Law of the Sea (ITLOS) in a landmark hearing that began Monday in Hamburg, Germany.
"We come here seeking urgent help, in the strong belief that international law is an essential mechanism for correcting the manifest injustice that our people are suffering as a result of climate change," Tuvalu's Prime Minister Kausea Natano said in a statement shared by Eureporter. "We are confident that international courts and tribunals will not allow this injustice to continue unchecked."
The 1982 United Nations Convention on the Law of the Sea governs the shared use and protection of the ocean. A total of 168 countries—the U.S. not among them—have ratified it.
Under Article 194(1), those 168 states have agreed to "take, individually or jointly as appropriate, all measures consistent with this convention that are necessary to prevent, reduce, and control pollution of the marine environment from any source." Yet, despite the fact that 25% of carbon dioxide emissions and 90% of global heating end up in the oceans, leading to threats like marine heatwaves, coral bleaching, ocean acidification, and more extreme tropical storms, it's still not clear what duties nations have to prevent climate pollution under international maritime law.
"What's the difference between having a toxic chimney spewing across a border to carbon dioxide emissions?" Payam Akhavan, lead counsel and chair of the committee of legal experts advising the nations that brought the question, askedThe Guardian. "Some of these states will become uninhabitable in a generation and many will be submerged under the sea. This is an attempt to use all the tools available to force major polluters to change course while they still can."
"A positive advisory opinion could be essential to the global fight against climate change."
The island nations—organized as the Commission of Small Island States on Climate Change and International Law (COSIS)—first requested an advisory opinion from the tribunal in December 2022. COSIS formed in 2021 during the COP26 U.N. climate talks in Glasgow, Scotland, and its members include Antigua and Barbuda, Tuvalu, Palau, Niue, Vanuatu, Saint Lucia, Saint Vincent and the Grenadines, Saint Kitts and Nevis, and the Bahamas, according to ClientEarth.
These nations say they have only contributed 1% of global greenhouse gas emissions but contend with disproportionate climate impacts, from sea-level rise and saltwater intrusion to coastal erosion, The New York Times reported.
"Despite our negligible emission of greenhouse gases, COSIS's members have suffered and continue to suffer the overwhelming burden of climate change's adverse impacts," Antigua and Barbuda Prime Minister Gaston Alfonso Browne said in a statement shared by Eureporter."Without rapid and ambitious action, climate change may prevent my children and grandchildren from living on the island of their ancestors, the island that we call home. We cannot remain silent in the face of such injustice."
The ITLOS hearing is scheduled to last through September 25. In addition to the members of COSIS, more than 50 nations will weigh in with written or oral arguments, according to The New York Times. Among them will be major greenhouse gas emitters like China, India, and European Union member states. A ruling is expected within months.
While COSIS is only asking for an advisory opinion for now, legal experts say the decision could have a major impact on climate litigation going forward, especially if ITLOS rules that signatories do have an obligation to protect the ocean from climate pollution.
"The islands could hold major emitters of greenhouse gases responsible for damage by their failure to implement the Paris climate accord," University of Edinburgh emeritus international law professor Alan Boyle told The New York Times.
That is the outcome that legal climate advocates like ClientEarth are hoping for.
"A positive advisory opinion could be essential to the global fight against climate change," the group wrote. "A legal interpretation by the tribunal that the Law of the Sea requires states all over the world mitigate their greenhouse gas emissions to prevent harm to the marine environment opens up the possibility that climate commitments such as those made under the Paris agreement may need to be enforced to protect the world's oceans."
