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commission of small island states on climate change and international law
Global Tribunal Issues 'Historic' Ruling for Oceans and Small Island Nations
"Protecting the global commons of the oceans and atmosphere is a matter of life and death," said one expert who praised the decision.
May 21, 2024
An international tribunal on Tuesday delivered a decision that green groups and leaders of small island nations celebrated as a "groundbreaking victory for ocean and climate protection."
The International Tribunal for the Law of the Sea (ITLOS) announced in an advisory opinion that greenhouse gas emissions are marine pollution under the United Nations Convention on the Law of the Sea and parties to the treaty "have the specific obligation to adopt laws and regulations to prevent, reduce, and control" them.
The advisory came in response to a December 2022 submission by the Commission of Small Island States on Climate Change and International Law (COSIS), which includes Antigua and Barbuda, the Bahamas, Niue, Palau, St. Kitts and Nevis, St. Lucia, St. Vincent and Grenadines, Tuvalu, and Vanuatu.
"The tribunal's opinion is an historic legal victory for small island nations, demonstrating their global leadership on this crucial issue for the future of humankind," said Payam Akhavan, a COSIS legal representative to ITLOS. "It is a manifest injustice that they make negligible contributions to the problem, but suffer the worst effects of rising sea levels and extreme weather events that have brought some to the brink of extinction."
"As the guardian of the ocean treaty, ITLOS has taken the critical first step in recognizing that what small island nations have been fighting for at the COP negotiations for decades is already part of international law," he continued, referring to United Nations climate summits. "The major polluters must prevent catastrophic harm to small island nations, and if they fail to do so, they must compensate for the loss and damages."
"To those that would hide behind the weaknesses of international climate treaties, this opinion makes clear that compliance with the Paris agreement alone is not enough."
COSIS was initiated at COP26 by Tuvalu along with Antigua and Barbuda, whose prime minister, Gaston Browne, welcomed the ITLOS decision, stressing that "small island states are fighting for their survival" and "some will become inhabitable soon because of the failure to mitigate greenhouse emissions."
Eselealofa Apinelu, Tuvalu's high commissioner to Fiji, pointed out that the advisory opinion "spells out the legally binding obligations of all states to protect the marine environment; to protect against the existential threats posed by climate change."
Center for International Environmental Law (CIEL) Climate & Energy Program director Nikki Reisch noted Tuesday that "to those that would hide behind the weaknesses of international climate treaties, this opinion makes clear that compliance with the Paris agreement alone is not enough."
"Pledges and promises at annual climate conferences do not satisfy states' legal duties to take all necessary measures to prevent, reduce, and control the greenhouse gas emissions polluting the marine environment, in line with climate science and the goal of limiting warming to 1.5°C," Reisch continued.
"We know that doing so requires rapidly phasing out all fossil fuels. States that fail to comply face legal responsibility," she added. "Protecting the global commons of the oceans and atmosphere is a matter of life and death—not just for entire marine ecosystems and the coastal and island communities most directly dependent on them and at greatest risk from climate change, but for all of humanity and the planet as a whole."
CIEL and Greenpeace International last year had formally urged ITLOS to reach the conclusion that the tribunal ultimately did.
Louise Fournier, legal counsel for climate justice and liability at Greenpeace, also cheered the outcome, saying Tuesday that "the ITLOS advisory opinion marks a significant step forward in international environmental law and the protection of our oceans."
"It sets a clear legal precedent for addressing climate change through existing international frameworks and reinforces states' responsibilities to act on climate change," Fournier said. "Oceans are the world's largest carbon sink. Our oceans provide us with food, livelihoods, culture, and half of the oxygen in the atmosphere; they are vital in the fight against the climate crisis, and in maintaining all life on the planet. ITLOS confirmed it unanimously: Climate change is an existential threat to human rights."
As Reutersreported:
But the road to concerted global action is far from smooth.
China, the world's biggest carbon polluter, had argued in court that the tribunal did not have general authority to issue advisory opinions, saying these could fragment international law. China's foreign ministry was not immediately available for comment.
Additional forthcoming legal opinions could further complicate matters, as the international community prepares for COP29.
"This is the first of three advisory opinions international tribunals have been asked to provide to clarify what legal obligations states have to combat climate change," Euronewsexplained. "Opinions are also expected from the Inter-American Court of Human Rights and the International Court of Justice."
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'We Come Here Seeking Urgent Help': Vulnerable Islands Want Climate Pollution Covered by Ocean Treaty
"We are confident that international courts and tribunals will not allow this injustice to continue unchecked," the prime minister of Tuvalu said.
Sep 11, 2023
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."
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