5 reasons why... the Law of the Sea Tribunal must require countries to act on shipping emissions

At Opportunity Green, we’re firm believers that shipping must be recognised in international climate discussions. That’s why we’ve put forward a supporting submission urging the International Tribunal of the Law of the Sea to confirm countries must act to decarbonise the shipping sector.

Legal confirmation is being sought by a coalition of small island states (COSIS) over whose obligation it is to protect the marine environment from greenhouse gas emissions from vessels.

The Law of the Sea governs how we use and live with our oceans around the world, and COSIS has asked the International Tribunal for the Law of the Sea (ITLOS) to clarify what countries must do under the law to protect the marine environment from climate change.

This is important because the COSIS states are experiencing the worst effects of climate change, including rising sea levels, tornadoes and even having to consider relocation.

Here are five reasons why we believe the Tribunal must recognise the importance of shipping in its opinion…

1. To bring shipping into the global discussion on climate change

Greenhouse gas emissions from the shipping industry are currently massively underregulated and there is little legal accountability for its climate change impact. There are several reasons for this, but we believe that chief among them is the fact that oceans and the marine environment have been neglected from climate change discussions under the United Nations Framework Convention on Climate Change (UNFCC) because they are seen as delegated to the Law of the Sea.

But the Law of the Sea was adopted in 1982 (a decade before the UNFCCC) and does not specifically mention countries' obligations to adopt measures tackling issues like climate change, GHG emissions, sea level rise or ocean acidification.  

Much as oceans don't figure much in UNFCCC discussions, so does international shipping sail under the radar, partly because countries work through yet another international organisation, the International Maritime Organization (IMO), to manage shipping.

But despite having had decades to put adequate greenhouse gas reduction measures in place, the IMO has failed to take meaningful action.

Shipping is a critical component of our global economies and the backbone of international trade. It currently represents about 3% of global climate emissions, but with increasing demand for shipping services, maritime emissions are accelerating fast.

The shipping industry – together with the global cruise industry – is a major polluter of the world's oceans in other ways too, such as such as bilge water discharge, plastic waste and whale strikes.

The Tribunal’s advisory opinion offers the chance to bring oceans firmly within the global climate change narrative and – crucially – for shipping to be held more accountable. Every sector needs to play its part if we are going to avoid climate disaster.

2. To put pressure on the IMO to set ambitious measures for shipping

The IMO has been discussing how to tackle maritime emissions for over two decades, but its Member States are still yet to reach any meaningful agreement to decarbonise international shipping. There is currently no regulation in place that requires the international shipping sector to reduce emissions in line with the Paris Agreement temperature goal of 1.5°C, and the maritime sector is currently on a dismal trajectory to above 3 degrees warming. Given that ships have a lifetime of about 30 years, it’s now or never to steer things back on course.

In about two weeks’ time, the IMO will adopt a revised GHG Strategy. This presents a unique window of opportunity to change the course of the maritime sector to align with the Paris Agreement 1.5°C limit.

The Tribunal advisory opinion will heap on the pressure for the IMO to act. This means formally recognising the importance of ambitious measures at both IMO and domestic levels that are in line with the Paris Agreement, achieving zero emissions by no later than 2050.

Only through the achievement of these measures will States meet their legal obligations under the Law of the Sea.

3. To clarify what individual countries should be doing to reduce shipping emissions

The regulation of shipping emissions is often (unsuccessfully) left to the IMO. But Law of the Sea obligations fall on individual countries, and if the IMO does not act to reduce vessel pollution, we believe that the law requires countries to act unilaterally.

At Opportunity Green we think that many developed countries are either not aware of, or are ignoring, this fact. Countries around the world should be doing more to protect the marine environment from the effects of climate change.

We have asked the Tribunal to confirm exactly what states are supposed to do to combat vessel pollution and what individual countries should be required to do on international shipping emissions even if the IMO doesn’t bring stringent regulations forward. If we can get an international court to agree with us that would be a huge step forward, and could pave the way for further legal action in the future if countries continue to evade their responsibilities.

4. To confirm that ‘flag’ and ‘port’ states are empowered to impose and enforce rules

A lot of international shipping is out there on the ‘high seas’, waters that are not within the control of any one country. There is often discussion about whether measures that individual countries might take can be enforced in these areas, and if so, by whom. The issue of ‘flag states’ in shipping is in general not without its own controversy, and flag states often have little link with the ships that ‘belong’ to them.

At Opportunity Green we think that the Law of the Sea could be used as an effective tool by countries to bring in measures to reduce emissions. We believe port states in particular have wide ability to act, and flag states have a wide obligation to enforce. The combination could be very powerful, so we’ve asked the Tribunal to confirm whether it agrees with our view.

5. To support the needs of climate vulnerable countries

Small island states are dealing with the worst effects of climate change but have done the least to cause it. They are constantly responding to natural disasters and we've even seen some, such as Fiji and the Marshall Islands, considering buying land to relocate.

Ships are like floating power plants travelling from port to port, and the pollution they produce while in port causes an enormous impact on poorer communities. No one country or region is taking any concerted action on this.

The COSIS request at the Tribunal – just like Vanuatu's request for an ICJ advisory opinion – marks a shift in the expectations and potential actions of these climate vulnerable countries. It’s inspiring to see small island states take matters into their own hands to try to secure their futures when the traditional routes to secure change are moving too slowly or don’t take account of their needs. But they shouldn’t have to.

We work with climate vulnerable countries at the IMO and hear how many of them struggle to get their voices heard on the international stage due to inadequate resources. Nothing less than the survival of some of the world’s most vulnerable countries is at stake, and this advisory opinion will nudge us one step closer towards a transition that’s fair and equitable for all.

Find out more about our submission to the International Tribunal for the Law of the Sea.