Small island states seek climate justice at international tribunal
Last month, we attended landmark hearings before the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany. We heard compelling testimony from the Prime Ministers of some of the small island states the worst affected by climate change, leading scientists, and legal experts. Here’s the lowdown on what happened.
Prof. Jutta Brunnée’s oral submission to the Tribunal on behalf of COSIS. Photo: Isabela Keuschnigg, Opportunity Green
In December 2022, the Commission of Small Island States on Climate Change and International Law (COSIS) requested the tribunal to issue an advisory opinion on States’ obligations regarding the protection of the marine environment from the impacts of climate change under the United Nations Convention on the Law of the Sea (UNCLOS).
These oral proceedings took place over the course of two weeks, following written submissions in June. At Opportunity Green, we put forward a legal submission to ITLOS arguing that States have obligations under UNCLOS to act to reduce greenhouse gas emissions from the global shipping sector in line with the Paris Agreement temperature limit.
You can read more about why we made our submission in our blog, 5 reasons why… the Law of the Sea Tribunal must require countries to act on shipping emissions.
Climate vulnerable countries show true climate leadership
On 12–13 September, COSIS experts made their case. They painted a stark picture of not only what is to come – but what is already a devastating reality for climate vulnerable countries such as SIDS.
The hearings were opened by the Prime Ministers of Antigua and Barbuda and Tuvalu and the Attorney General of Vanuatu. They highlighted the importance of our oceans for the climate system but also for their livelihoods, which are dependent on the marine environment. They explained how the disastrous effects of climate change impacted the oceans and posed an existential threat to the survival of SIDS.
“Our government and our people look to this Tribunal with expectant eyes because, for us, time is running out. The ocean is our mother, the source of life. Yet it is destroyed by the failure of major GHG emitters to take seriously their obligation to protect and preserve the marine environment.”
The Prime Ministers also spoke of the lack of international action and stressed the role that international law had to play to address this injustice.
“We firmly believe that international law is an important part of the equation and that the time has come to speak of legally binding obligations rather than empty promises that go unfulfilled, abandoning people to suffering and destruction.”
The science is irrefutable
The Tribunal was presented with powerful scientific testimonies on:
The catastrophic effects of climate change impacts on the ocean.
The climate impacts on SIDS, including the effects of sea-level rise and ocean warming.
The law of the sea is clear
In the remaining pleadings, COSIS’ legal experts guided us through Part XII of UNCLOS, dedicated to States’ obligations in relation to the protection and preservation marine environment.
A series of three speeches addressed the first of the two questions (highlighted below) posed by COSIS in its request for an advisory opinion.
Some of the key arguments were:
States must exercise their climate change obligations in relation to the protection and preservation of the marine environment with due diligence; the stringency of which is determined by objective, scientific factors such as level of risk, foreseeability, and severity of potential harm.
The stringency of these obligations is also dependent on States’ capabilities according to the common but differentiated responsibilities principle: high-emitting, developed States must make greater effort than the low-emitting, less developed States.
The best available science must inform these obligations. To avoid the worst consequences on the marine environment, States must take all required measures to keep global warming below 1.5°C.
“While precaution is an essential part of the protection and preservation of the marine environment, it stands to reason that the situation at hand is no longer one of precaution. (…) We face a high probability of disastrous harm to the marine environment, even of existential threat.”
Two speeches followed which addressed the second question posed by COSIS to ITLOS, highlighted below.
To sum up, experts laid out that:
States have an obligation to protect the marine environment, the earth’s largest carbon sink; the obligation to mitigate the risk of harm; and the obligation to take climate adaptation measures.
Adaptation and resilience measures are necessary together with mitigation measures to counteract the adverse impacts of climate change on the marine environment.
Spotlight on shipping
At Opportunity Green, we were especially pleased that the necessity of considering emissions from shipping was also highlighted in the hearings.
Under UNCLOS, States have the specific obligation to adopt laws and regulations to prevent, reduce and control pollution of the marine environment in relation to vessels.
It was submitted that any such laws and regulations shall have at least the same effect as that of generally accepted international rules and standards, such as scientific standards set out by the International Panel on Climate Change to limit global warming to 1.5°C.
Why is this important? Earlier this summer, the International Maritime Organization (IMO) revised its GHG Strategy. While there were some positives to take, the revised GHG agreement does not get us to 1.5 °C. The ITLOS hearing underscored the importance of adopting ambitious regional and national rules to complement the IMO's rules.
At Opportunity Green, we are hopeful that the Tribunal will confirm that this is a matter of complying with international law – which was the essence of our own submission to the Tribunal in June.
Article in The Guardian about Opportunity Green’s submission to the Tribunal
Several of the pleadings also stressed that submitting and implementing Nationally Determined Contributions (NDCs) under the Paris Agreement may even be irrelevant when considering whether States are fulfilling their obligations under UNCLOS. The obligations under the two treaties are complementary, but separate.
This is an important point for emissions not only from international shipping but also international aviation. Both are often perceived to be excluded from the scope of the global climate regime, despite strong legal grounds to argue the contrary.
At Opportunity Green, we believe the exclusion of international shipping and aviation from national NDCs is not compliant with the Paris Agreement. However, the pleadings made clear that where States do exclude these emissions from NDCs, they are likely in any event to be failing to effectively discharge their UNCLOS obligations to protect the marine environment.
This point of view was also shared by Mauritius, whose representative pointed out that some emissions such as those from shipping and aviation were not yet consistently included in States’ NDCs. However, due diligence obligations under UNCLOS expressly required States Parties to address greenhouse gas emissions from these sources.
Mauritius highlighted that, in this regard, the obligations under UNCLOS go beyond current practice under the UNFCCC and the Paris Agreement.
What next for the advisory opinion?
ITLOS is expected to issue its opinion in spring 2024. We are hoping for a robust advisory opinion which reflects the urgency of just and equitable climate action by UNCLOS States and confirms that the law of the sea requires them to take such action. We also want States that don’t take such action to be held accountable under UNCLOS.
And we really want to see confirmation from the Tribunal that the law of the sea obliges States to address ship pollution in line with the Paris Agreement 1.5°C temperature goal. Anything less will be a historic opportunity missed.
