Small Island Developing States Win: GHGs Declared Ocean Pollutants

The legal frameworks for climate litigation are strengthened by the ITLOS advisory opinion which classifies greenhouse gases as marine pollutants. This decision enables Small Island Developing States to advocate for more stringent climate action and to access climate financing.

by Samriddhi

The International Tribunal for the Law of the Sea (ITLOS) under the United Nations Convention on the Law of the Sea (UNCLOS) issued a landmark advisory opinion on May 21, 2024, that classified greenhouse gases (GHGs) as marine pollutants. The advisory opinion, which the Commission of Small Island States (COSIS) has been pursuing since December 2022 [1], is a significant milestone in the battle against climate change and has far-reaching implications for the future of Small Island Developing States (SIDS), international climate policies, and litigation. 

Overview of the Advisory Opinion

The advisory opinion issued by ITLOS establishes strong obligations for State Parties under UNCLOS and provides legal clarity on the status of GHGs as marine pollutants. It acknowledges the critical role of GHGs in the marine environment and the impact of climate change, such as ocean acidification, sea-level rise, and ocean warming [2]. Advisory opinions aren’t binding but carry significant weight due to the authority of the issuing court, and decisions to endorse them are often recognised as valid under international law [3].

According to the Tribunal, simply adhering to the obligations of the Paris Agreement is not sufficient to satisfy the requirements of the Convention [4]. The Paris Agreement upholds the Convention’s goal of controlling anthropogenic GHGs that cause marine pollution, but it does not take precedence over it. In the Tribunal’s opinion, the Paris Agreement is not lex specialis (not a special rule that takes precedence) to the Convention [5].

Implications for Small Island Developing States (SIDS)

The ITLOS advisory opinion is of immense importance to SIDS, as they are among the most vulnerable countries to the effects of climate change, such as the loss of marine biodiversity, intensified cyclones, and the rise in sea level [6]. The ruling strengthens the legal position of SIDS in their pursuit of reparations for climate damages and stronger climate mitigation efforts from larger, more polluting nations [7].

It also offers new opportunities for accessing climate financing to support their adaptation and mitigation initiatives from major emitters and international financial institutions. SIDS can advocate for financial support to address the adverse impacts of GHGs on their marine ecosystems and coastal communities.

It further promotes the development and implementation of innovative technologies that are designed to mitigate the effects of climate change on oceans and reduce GHGs. International support, investment in renewable energy, sustainable agriculture, and coastal protection measures can be particularly advantageous for SIDS [8].

Pushback on the Request by COSIS

The advisory proceeding received opposition from a few countries. They contend that climate change concerns should be resolved exclusively within the Paris Agreement rather than under UNCLOS [9]. China argued that the Tribunal lacked the general authority to issue advisory opinions, claiming that such opinions could fragment international law [10]. India further challenged the jurisdiction of the tribunal [11].

Several developed nations, like Japan, Australia, the European Union, and the United Kingdom, acknowledged the tribunal’s authority to render an opinion on the matter, asserting that the Paris Agreement establishes the regulations and procedures required to address climate change and adhere to the UNCLOS [12]. Additionally, the European Union emphasised that the ruling should not “impose more stringent obligations than those already agreed thereunder” [13].

Conclusion

The ITLOS ruling is a watershed moment in the global fight against climate change and for Small Island Developing States (SIDS). The ruling potentially reshapes international climate policy and litigation by enforcing stricter obligations on states under UNCLOS by recognising GHGs as marine contaminants. This recognition underscores the pressing necessity of taking action to mitigate the effects of climate change on marine ecosystems.

This has provided SIDS with an effective tool to advocate for their survival and resilience, as well as to create new opportunities for climate financing to support their adaptation and mitigation efforts. Nevertheless, the full potential of these opportunities will necessitate the ongoing commitment and collaboration of all stakeholders.

References:
[1] The International Tribunal for the Law of the Sea (ITLOS), 2022, “Request for Advisory Opinion”, https://www.itlos.org/fileadmin/itlos/documents/cases/31/Request_for_Advisory_Opinion_COSIS_12.12.22.pdf, accessed June 15, 2024
[2] The International Tribunal for the Law of the Sea (ITLOS), 2024, “Advisory Opinion”, https://www.itlos.org/fileadmin/itlos/documents/cases/31/Advisory_Opinion/C31_Adv_Op_21.05.2024_orig.pdf, accessed on June 15, 2024
[3] International Court of Justice, NDL, “How the Court Works”, https://www.icj-cij.org/how-the-court-works#:~:text=Advisory%20proceedings%20conclude%20with%20the,judgments%2C%20they%20are%20not%20binding, accessed on June 21, 2024
[4] United Nations, NDL, “Part XII – Protection and Preservation of the Marine Environment”, https://www.un.org/depts/los/convention_agreements/texts/unclos/part12.htm accessed on June 19, 2024
[5] The International Tribunal for the Law of the Sea (ITLOS), 2024, “Advisory Opinion”, https://www.itlos.org/fileadmin/itlos/documents/cases/31/Advisory_Opinion/C31_Adv_Op_21.05.2024_orig.pdf, accessed on June 15, 2024
[6] Riham Alkousaa, 2024, “Climate Change: Small Island States Hail Ocean Court Victory,” Reuters, https://www.reuters.com/sustainability/international-ocean-tribunal-issue-climate-opinion-david-goliath-precedent-case-2024-05-21/, accessed on June 15, 2024
[7] Katie Surma, 2024, ‘‘Historic’ Advisory Opinion on Climate Change Says Countries Must Prevent Greenhouse Gases From Harming Ocean’, Inside Climate News, https://insideclimatenews.org/news/21052024/greenhouse-gas-harming-oceans-advisory-opinion/, accessed on June 18, 2024
[8] The International Tribunal for the Law of the Sea (ITLOS), 2024, “Press Release: Tribunal Delivers Unanimous Advisory Opinion in Case No. 31”, https://www.itlos.org/fileadmin/itlos/documents/press_releases_english/PR_350_EN.pdf, accessed on June 18, 2024
[9] Climate Home News, 2024, “UN Court: Countries must go beyond Paris Agreement to Protect Oceans”, https://www.climatechangenews.com/2024/05/21/un-court-countries-must-go-beyond-paris-agreement-protecting-oceans/, accessed on June 15, 2024
[10] The International Tribunal for the Law of the Sea (ITLOS), 2023, “Written Statement of the People’s Republic of China”, https://www.itlos.org/fileadmin/itlos/documents/cases/31/written_statements/1/C31-WS-1-8-China__transmission_ltr._.pdf, accessed on June 19, 2024
[11] The International Tribunal for the Law of the Sea (ITLOS), NLD, “Written Statement by the Republic of India”, https://www.itlos.org/fileadmin/itlos/documents/cases/31/written_statements/3/C31-WS-3-4-India.pdf, accessed on June 19, 2024
[12] Climate Home News, 2024, “UN Court: Countries must go beyond Paris Agreement to Protect Oceans”, https://www.climatechangenews.com/2024/05/21/un-court-countries-must-go-beyond-paris-agreement-protecting-oceans/, accessed on June 15, 2024
[13] The International Tribunal for the Law of the Sea (ITLOS), NLD, “Written Statement by the European Union”, https://www.itlos.org/fileadmin/itlos/documents/cases/31/written_statements/1/C31-WS-1-9-EU.pdf, accessed on June 19, 2024