Chhaya Bhardwaj and Daniel Stein
Introduction
With a vision of global climate justice, the heads of governments of Antigua and Barbuda and Tuvalu, established ‘The Commission of Small Islands States on Climate Change and International Law’ (COSIS), in October 2021, by signing “the agreement for the establishment of the Commission of Small Islands States on Climate Change and International law”. It was established “to promote and contribute to the definition, implementation, and progressive development of rules and principles of international law concerning climate change, including, but not limited to, the obligations of states relating to the protection and preservation of the marine environment and their responsibility for injuries arising from internationally wrongful acts in respect of the breach of such obligations.” Under the Agreement, the commission is specifically dedicated to developing “rules and principles of international law concerning climate change, in particular, the protection and preservation of the marine environment, including through the jurisprudence of international courts and tribunals”.
Request for an Advisory Opinion
To fulfill the Commission’s mandate, Article 2(2) of the Agreement notably empowered it to request for an Advisory Opinion from the International Tribunal of the Law of the Sea (hereinafter “the Tribunal”). COSIS submitted its first request to the Tribunal on 12 December 2022, which asks: “What are the specific obligations of State Parties to the United Nations Convention on the Law of the Sea (the “UNCLOS”), including under Part XII:
(a) to prevent, reduce, and control pollution of the marine environment in relation to the deleterious effects that result or are likely to result from climate change, including through ocean warming sea level rise, and ocean acidification, which are caused by anthropogenic greenhouse gas emissions into the atmosphere.
(b) to protect and preserve the marine environment in relation to climate change impacts, including ocean warming sea level rise, and ocean acidification.”
These questions were also answered by COSIS in their brief submitted to ITLOS, which was analysed previously on this blog.
Analysis of the Advisory Opinion
On 21 May 2024, the Tribunal published its Advisory Opinion on the two specific issues presented before it. The Tribunal noted that the issues at the intersection of climate change and UNCLOS are science and law-intensive, implying that the issues are based in several scientific and legal sources (para. 45). However, the scientific study by the Intergovernmental Panel on Climate Change (IPCC) proved to be the most authoritative for the issues at hand, as none of the almost-50 submissions before the Tribunal challenged the authority of the reports by the IPCC(para. 51). The IPCC reports confirmed that climate change has numerous adverse effects on the oceans which are substantial and irreversible. These adverse impacts include but are not limited to ocean acidification, sea-level rise, and ocean warming (paras. 58-61). Therefore, the scientific basis remained undisputed for the purposes of this advisory opinion.
The sources of law, however, are what the Tribunal was more concerned with. The Tribunal confirmed that the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement are the core of the legal frameworks that facilitate the development of global responses to climate change (para 67). Additionally, the legal instruments that govern the International Maritime Organisation, including MARPOL, the Montreal Protocol, the Kigali Amendment, and Volumes 3 and 6 of the Chicago Convention, also govern rules concerning the intersection of climate change and pollution of the marine environment(paras. 77-8). Along with these relevant conventions, the Tribunal examined how UNCLOScan be interpreted and applied in situations at the intersection of climate change and oceans (paras. 130-1). The Tribunal confirmed that UNCLOS is “an extensive treaty regime” includes rules and provisions concerning climate change (para. 137). All the other treaty sources where relevant rules for climate change can be found are “external rules” for the Tribunal that it can use to interpret questions under UNCLOS (para. 137).
In furtherance of this mandate and as a basis for jurisdiction, the Tribunal confirmed that the questions raised by COSIS are “clear and specific”, making the request for the advisory opinion compatible with the Tribunal’s judicial functions (para. 120). The Tribunal clarified that although the questions by COSIS concern primary obligations and not secondary ‘responsibility or liability’, these questions were not explicitly in the COSIS request, which only sought clarity on the legal duties of parties (para. 145). As such, specific questions of responsibility and liability in the context of the questions asked remain broad and unaddressed through this decision, though the Opinion includes both primary and secondary obligations for the states concerning the issues of climate change (para. 148).
Court’s opinion on the First Question
The first question is:
“What are the specific obligations of State Parties to the United Nations Convention on the Law of the Sea (the “UNCLOS”), including under Part XII: (a) to prevent, reduce, and control pollution of the marine environment in relation to the deleterious effects that result or are likely to result from climate change, including through ocean warming, sea level rise, and ocean acidification, which are caused by anthropogenic greenhouse gas emissions into the atmosphere?”
The Tribunal stated that it would not be best to assume the validity of this question in the context of obligations under UNCLOS (para. 158). This means that the way the question is posed assumes two things: firstly, anthropogenic greenhouse gas (GHG) emissions cause certain deleterious effects like ocean acidification (paras. 159). Second, GHG emissions are pollution under UNCLOS (para. 160).
The Tribunal clarified that there is no list of pollutants under UNCLOS, and therefore GHG gases can’t be assumed to be pollutants causing pollution within the meaning of UNCLOS (para. 161). However, the definition of what can be pollution under UNCLOS has three elements to it: (i) that there should be a substance or energy; (ii) introduced by humans directly or indirectly into the marine environment; (iii) resulting in deleterious effects (para. 161).
The GHG emissions fulfill this three element test. GHG emissions are a substance, ie gas (para. 164). They are anthropogenic in nature, ie, introduced by humans in the atmosphere and then in the oceans as heat energy, causing ocean warming, acidification, sea-level rise and several other deleterious effects (paras. 165-173). The deleterious effects of GHG emissions are supported by evidence in the IPCC scientific reports (paras. 174-178). Therefore, GHG emissions are pollution under Article 1(1)(4) of UNCLOS (para. 179).
The Tribunal then interpreted and applied the broad environmental protection obligations concerning pollution under Part XII of UNCLOS (paras. 180-1). It confirmed that obligations under Part XII of UNCLOS apply to “any” pollution that can be deleterious to the marine environment. Therefore, states are obliged to take measures to prevent, control, and reduce pollution, both present and future, from “any” sources of pollution (para. 189). However, pollution prevention of “all” sources” at “all” times is rather not possible (para. 198). The GHG emissions are toxic, noxious, harmful, and persistent pollutants that have accumulated in the environment over time and that even if today there is an immediate cessation of GHG emissions, the adverse effects of it will continue to harm the oceans for the next several years to come (para. 199). Therefore, States must take “all necessary measures” that are indispensable, necessary, and possible, to allow States to achieve the goal of preventing, controlling, and reducing GHG gas emissions and their deleterious effects (para. 203).
The necessary measures should be determined by the States “objectively”, founded in the following: (i) measures should be guided by science; (ii) measures should be guided by relevant international rules and standards internal and external to UNCLOS; (iii) measures should be guided by other factors, ie, necessary means available and specific capabilities of the states (paras. 207, 212). These three factors can help the states determine if the necessary measures taken by the State to prevent, reduce, and control pollution are objective and sufficient or not.
Firstly, the measures should be based in science and guided by the “best available science” (para. 211). The submissions confirm that the IPCC scientific reports stand as the most authoritative and agreeable science on climate science and also the best available (para. 208). However, if, in certain cases, the best scientific evidence cannot be ascertained, applying the precautionary principle should guide the States to determine what actions they should take to reduce, control, and prevent pollution from GHG emissions (para. 213).
Secondly, measures should be guided by international rules and standards, both internal and external, for UNCLOS (para. 214). The UNCLOS standard of due diligence is essential for obligations concerning pollution. However, UNFCCC and the Paris Agreement remain the primary sources governing climate change law (para. 214). They are also supported by MARPOL, the Chicago Convention, and the Montreal Protocol (para. 214). While these external international rules and standards are essential for interpreting and applying rules governing pollution in marine environments in the context of climate change, satisfying those obligations is not enough, and more is needed for state parties to UNCLOS to fulfill their obligations under UNCLOS (para. 223). The State Parties to UNCLOS must also ensure they fulfill the specific duties to prevent any pollution from GHG emissions that deleteriously affect the ocean (para. 223). The Tribunal also declared that the Paris Agreement is not a lex specialis in the context of climate change and oceans, as several countries, including India, had argued in their briefs (para. 224). Even if the Paris Agreement had some elements of lex specialis, it cannot be used to frustrate the obligations of the State Parties under the UNCLOS (para. 224).
Thirdly, the specific measures should be guided by necessary means available to the State Parties and the capabilities of the State. These can include scientific, financial, technical, and other capabilities and means included in UNCLOS Art. 202 (para. 225). A lack of these other factors should not be used to justify a delay in climate action or omission (para. 226). Moreover, “States with greater means and capabilities must do more” (para. 227). The measures should overall be guided by Common But Differentiated Responsibility based on the respective capabilities of the States, along with preferential treatment for developing states contained in Art. 203 (para. 227).
Finally, the nature of these obligations means that these are obligations of conduct and not obligations of results, which requires States to act with “due diligence” (para. 233). The States should strive to develop a “National System” that can allow the domestication of the measures to protect the oceans from the deleterious effects of climate change while acting with due diligence (para. 235). The due diligence standard under Article 194 (1) is variable and should be higher for activities with higher risk to the oceans (para. 237). Emissions of GHGs is a high-risk activity that carries a higher risk for the oceans (page 151). The severity of the risk can be identified by the probability and foreseeability of the harm attached to the activity. The GHG emissions are higher risk activity because they certainly carry a probability and foreseeability to cause severe harm to the oceans in the present, continuing. The due diligence standard under Article 194 (1) is, therefore stringent, but qualified by differentiation for the State parties based in their respective capabilities (para. 243).
Furthermore, the duty to prevent, control, and reduce pollution in transboundary cases under Article 194(2) has a more stringent due diligence standard than the rigorous due diligence standard under Article 194(1) (para. 258). States must protect their environment and areas beyond their national jurisdictions (para. 245). The duty to prevent, reduce, and control transboundary harm due to activities in the State’s territory applies to public and private actors under UNCLOS (para. 247).
The sources of pollution to the marine environment from GHG emissions are multiple and currently can be classified into three categories: land-based sources, vessels, and aircraft (para. 260). The actions to reduce emissions from these sources are central to protecting oceans from the adverse effects of climate change (para. 260). States should also take into account “internationall agreed rules, standards and recommended practices and procedures,” which for these sources is contained in the UNFCCC and Paris Agreement negotiations, and the other specific conventions listed above (para. 270).
States have obligations to prevent, reduce, and control pollution from vessels- ships flying under their flag states under Article 211 (para. 278). Similarly, under Article 207, the states have a similar responsibility concerning pollution from land-based resources, and under Article 212, they are responsible for pollution from the atmosphere (para. 277). Obligations concerning the enforcement concerning pollution from these three sources are set forth under Articles 213, 217, and 222 of UNCLOS (para. 281). These obligations require states to enact, enforce, and implement national legislation for public and private sources, and any failure to enforce measures by the States would constitute a failure by the State Party (paras. 260 & 281).
Additionally, there are general and specific obligations to cooperate to protect the marine environment under Articles 192, 194, 197, 200, and 201 of the UNCLOS under global or regional networks (para. 295). Under UNCLOS Articles 202 and 203, State parties that are most vulnerable to GHG emissions and adverse effects of climate change should be given preferential treatment because these are also the states that have contributed the least to climate change but suffer the most (para. 322). The States should strive to identify mechanisms under the international legal systems to enhance the capabilities of vulnerable states by providing them assistance (paras. 330-32).
The States should also monitor and surveil the risks to the marine environment under Article 204 of the UNCLOS (para. 341). Both of these obligations continue and are attached to the obligations of the States under Article 205, which requires States to publish reports on monitoring efforts (para. 342). Further, the States must assess the harmful effects of any planned projects or activities within their jurisdictions. The assessment should occur before initiating the planned activity by conducting an Environmental Impact Assessment (EIA) for planned activities by private and public actors (para. 363). The EIA should assess the specific and cumulative impacts of the activities proposed (para. 365). The assessment should also consider the socio-economic impacts of the proposed project (para. 365).
Broadly, the stringent due diligence obligations to take mitigation measures forms the core corpus of responsibility to prevent, reduce, and control pollution to the marine environment due to GHG emissions.
Court’s opinion on the Second Question
For the second question, ie, the specific obligations under UNCLOS, including under Part XII: “(b) to protect and preserve the marine environment in relation to climate change impacts, including ocean warming, sea level rise, and ocean acidification,” the Tribunal stated that State parties must protect the marine environment, and, more specifically, “rare or fragile ecosystems” under Article 194 (5) along with separate duties contained generally in Article 192 and more specific in Article 194 (para. 402). The States must actively protect and in some cases even restore biodiversity, by taking specific measures to enact or enforce laws and monitor or surveil measures based on available science (para. 403).
Under Article 61 and 119 of UNCLOS, conservation measures are largely adaptation measures. Climate change affects “all” forms of human life (para. 411) . Under Articles 61, 63, and 64 of UNCLOS, the State parties must protect the living resources within their Exclusive Economic Zones (para. 419). Under Article 118, the States also have an obligation to protect living resources in the High Seas (para. 424). These provisions set forth a duty on the States to Conserve all living natural resources of the Sea and conserve marine resources adversely impacted by climate change, including highly migratory species (para. 428). The states must also consult with other parties regarding shared resources to conserve (para. 441(3)(e). Additionally, the States should also keep in mind obligations under Article 196 of UNCLOS, which set forth obligations concerning the introduction of alien species in ecosystems and the potentially harmful effects of the introductions (paras. 431-3). States must also take appropriate adaptive measures to protect species, introducing non-native species, in a way that does not affect the pollution control regime of UNCLOS (para. 436).
Conclusively, the several obligations of State Parties under UNCLOS if subject to the duty to take all necessary measures to prevent, reduce, and control marine pollution from anthropogenic GHG emissions and ensure that the temperature of the earth does not rise beyond 1.5 degrees Celsius (para. 441(3)(b). Additionally, stringent due diligent measures should be taken by States to avoid the deleterious effects of anthropogenic GHGs under UNCLOS (para. 441(3)(c)).
(Chhaya Bhardwaj is currently an Alexander Von Humboldt Foundation International Climate Protection Fellow at the Hertie School, Associate Professor at O P Jindal Global University, IUCN Member of the Early Career Specialist Group, and PhD Candidate at Dublin City University.
Daniel Stein is currently a Visiting Researcher at Freie Universität, Berlin and an Assistant Professor at O P Jindal Global University, India.)
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