Daniel Stein
Introduction
In preparation for the International Tribunal for the Law of the Sea (ITLOS) to deliver their Advisory Opinion on Climate Change on 21 May, this post reviews some of the substantial arguments in the brief advanced by the Coalition of Small Island States (COSIS) (who requested the opinion) as well as the outer limits of those implications as described by the brief of the International Maritime Organization (IMO).
The Request itself poses two seemingly simple questions determining the “specific obligations of State Parties to the United Nations Convention on the Law of the Sea (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. . .” and “(b) to protect and preserve the marine environment in relation to climate change impacts,” both with regard to “ocean warming, sea level rise, and ocean acidification.” The key difference between the two questions is how the latter goes beyond specific “marine pollution” to include other types of pollution that have adverse impacts on the marine environment and whether the obligation to protect and preserve it requires States to take measures for resilience, adaption, and restoration.
Analysis of COSIS Brief
The COSIS brief expands on these questions and their preferred answers in great detail after introducing their own constitution and purpose and the procedure for requesting this opinion. It then considers the jurisdiction and admissibility of the request, which will not be discussed here except to note that there is still some dispute about the jurisdictional requirements set out by ITLOS in their Fisheries Advisory Opinion in 2015. There, the court laid out that they require “an international agreement related to the purposes of the Convention specifically [which] provides for the submission to the Tribunal of a request for an advisory opinion; the request must be transmitted to the Tribunal by a body authorized by or in accordance with the agreement mentioned above; and such an opinion may be given on “a legal question.” Considering that the earlier Fisheries request was transmitted by the Sub-Regional Fisheries Commission, a more well-established organization with a scope outside just submitting the request, it is possible the court could update their requirements to find a limit to the types of groups who can submit requests.
The COSIS brief only briefly mentions the jurisdiction, then splits into two parts to answer each question separately, first setting out the scientific evidence related to the various types of marine pollution and its cause, then explaining why greenhouse gas (GHG) emissions constitute pollution of the marine environment, then describing and setting out specific obligations and principles related to the prevention, reduction, and control of GHG emissions. The scientific summary, which will also not be discussed here, relies on recent Intergovernmental Panel on Climate Change (IPCC) scientific reports as well as two independently prepared documents which they use to show how GHG emissions drive climate change, how the ocean absorbs 90% of excess heat and 25% of excess carbon, how that process poses a severe and existential threat to small island states due to sea-level rise and other negative effects like changing currents and deoxygenation, and how these emissions fall squarely within the definition of “pollution of the marine environment” found in Art.1(1)(4) of UNCLOS.
A. Obligations in UNCLOS to Prevent, Reduce, and Control Pollution
From this basis, COSIS then turns to the specific nature of obligations contained in Part XII of UNCLOS, related to protection and preservation of the marine environment, moving from the general provisions to the interplay of international rules and national legislation, and finally the enforcement mechanisms. After noting that the first two Articles, 192 and 193, contain only general obligations to protect and preserve the marine environment in consonance with the sovereign right to exploit natural resources, the brief then focuses on the five paragraphs of Article 194. Article 194(1) begins by requiring that “States shall take, individually or jointly as appropriate, all measures . . . necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposable and in accordance with their capabilities” (emphasis supplied). The COSIS brief contends that the words “shall take” creates a binding obligation and that the phrase “all measures consistent with this Convention” can have a very broad reading which “reflects the non-exhaustive and open-ended nature of Article 194(1). Article 194(2) continues with a similar exhortation requiring:
“States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other states and their environment, and that pollution arising from incidents or activities under their jurisdiction does not spread beyond the areas where they exercise sovereign rights.”
Article 194(3) then notes that such “measures taken . . . shall deal with all sources of pollution of the marine environment,” then lists separately toxic and harmful substances from land-based sources, vessel pollution, and pollution from installations and exploration devices. The interpretation of these requirements will be at the heart of the ITLOS advisory opinion, which will provide the current legal interpretation of the necessity of state measures to prevent, reduce, and control pollutants as well as the nature of their discretion due to different capabilities, and how such obligations are informed by the body of treaties relevant to the protection of the environment and climate change.
As such, ITLOS will also be interpreting the obligations contained in Article 194(2) about obligations to not cause harm in another state not only with cases from Corfu Channel to Trail Smelter and Pulp Mills, but also with language from the Stockholm and Rio Declarations and the preamble to the United Nations Framework Convention on Climate Change (UNFCCC). Questions about the scope of the harms that give rise to the obligation as well as how significant they must be and whether they are confined to specific polluting events rather than just the GHG emissions from regular activities will also need to be interpreted by ITLOS.
While GHG emissions are both regular and general, UNCLOS does contain specific regimes for specific pollutants: land-based sources (Art. 207), vessels (Art. 211), and from or through the atmosphere (Art. 212). The obligations in Article 207 require States to adopt laws and regulations which “tak[e] into account internationally agreed rules, standards and recommended practices and procedures” but also other measures which may be necessary, to harmonize regional practices, and to reexamine those practices from time to time. The enforcement mechanism for land-based sources in Article 213 has slightly different language, and the COSIS brief suggests, this “directly requires that State Parties give effect in their domestic legal systems to ‘applicable’ (relevant) rules or standards . . . to prevent, reduce, and control marine pollution” from land-based sources. How far onto land this duty will extend is another major question for the ITLOS tribunal.
B. Obligations to Mitigate Specific Sources of Pollution
The regime for controlling pollution from vessels is much more in the maritime wheelhouse, though such regulations appear in the International Convention for the Prevention of Pollution from Ships (MARPOL), which require states to have laws which “shall at least have the same effect as that of generally accepted international rules and standards” for their own ships, but gives States discretion for application to foreign ships. Flag states are specifically obliged in Art. 217(1) to ensure compliance by vessels flying their flag of these international rules and provide for effective enforcement of such rules wherever a violation occurs. The obligation for atmospheric pollution however only requires States to take into account internationally agreed rules and standards, but, similar to land-based sources, says national laws, cannot be enough when more measures are necessary.
By setting up the scientific basis of the impact of pollution on the oceans and that GHG emissions are such a pollutant, the COSIS brief seeks to clarify this question of what is now environmentally necessary. Likewise, the brief goes into detail defining relevant terms like “prevent,” “reduce,” and “control,” with regards to how they hope ITLOS will define what is not only necessary but also practicable.
C. Due Diligence Obligations in Part XII
The COSIS Brief’s final chapter on the first question considers the ‘due diligence’ obligations of states regarding anthropogenic GNG emissions under Part XII, especially Article 194, and specifically the ‘necessary measures in light current scientific evidence and international rules and standards.’ Article 194 specifically requires “all measures . . . that are necessary” (emphasis supplied) to prevent reduce and control pollution of the marine environment. After comparing definitions of ‘due diligence’ from a variety of international sources including ITLOS / Seabed Dispute Chamber opinions, International Court of Justice (ICJ) cases, and International Law Commission (ILC) documents, to craft the edges of a continuing and evolving “obligation to deploy adequate means, to exercise best possible efforts, to do the utmost, to obtain [a certain] result,” the Brief then sets out five primary features of the due diligence obligations under Part XII: the interface of primary rules of conduct and secondary rules of state responsibility, the rules of conduct requiring a level of care for effective implementation and enforcement, a continuous duty, a situational variability and context-dependence that changes over time but remains ‘reasonably’ State implemented; and finally, a content which is informed by other provisions of Part XII and external norms (including the Indus Waters Kishenanga Arbitration and the ICJ Nuclear Weapons case).
Considering this broad reading of due diligence, the COSIS brief argues that the ‘all measures consistent with this Convention that are necessary. . .’ language contained in Art. 194(1) calls for three main responsibilities. First, it must incorporate international rules and standards in light of current scientific knowledge, it must have binding and enforceable rules rather than guidelines and self-reporting, it is both a minimum for state action and for engagement with other international fora. States and international agencies should also specifically tasked with monitoring the financing of corporations, especially since the duty of due diligence has been interpreted since the Pulp Mills decision to require public oversight of private operations. The brief then argues this duty must extend to harms suffered in areas beyond national control, includes preferential treatment for developing states and harsher treatment of developed states, and requires a properly conducted environmental impact assessments whenever there is the potential of causing transboundary harm. States are also obligated to jointly develop and promote contingency plans and harmonize policies at appropriate regional levels, especially with regard to “pollution from land-based sources” and artificial installations. Though there is perhaps some tension between regulating specific pollution incidents rather than the generally alarming rise in GHG emissions that earlier parts of the brief focuses on, there is still a due diligence obligation with regard to responding to these incidents. On this issue, COSIS does not mention that states generally have been working together in this regard through conventions that even predate UNCLOS, including MARPOL and the CLC, and through the ongoing efforts of the IMO’s Marine Environment Protection Committee, including their efforts to adopt a GHG pricing instrument.
D. General and Separate Obligations in Article 192
The second and final section of the COSIS brief responds to their second question on the general obligation to protect and preserve the marine environment under Article 192, which they declare represents and independent basis for imposing obligations to protect and preserve the marine environment. As with the multi-natured ‘due diligence’ obligation, this general obligation contains both positive and negative dimensions to not only protect and preserve, but also restore. The reason for this broader reading is because it applies to all harm caused to the marine environment, not just the harms caused by marine pollution. This broad definition could thus be interpreted by the court to include “protection of ecosystems; conservation of depleted or endangered marine species and habitats,” including in areas beyond national jurisdiction. COSIS then specifies their prayer to the court is for a relief that imposes three categories of specific obligations: mitigation measures consistent with scientific consensus, properly conducted implementation of resilience and adaptation measures, and positivist protection of marine environments that sequester carbon dioxide.
To help the court answer these questions, the Brief clarifies the scope, defines “marine environment” and “protect and preserve,” contextualizes the other provisions of Part XII and other international instruments and rules, then finally identifies specific obligations. After confirming that Article 192 goes beyond pollution to all activities detrimental to the marine environment and how other international tribunals and treaties consider protection and preservation, the brief asks the course to conclude that such obligations must apply to deleterious effects of climate change.
Finally, COSIS pleads with the court to impose mitigation efforts, with Environment Impact Assessment requirements or marine protected areas, resilience efforts to build adaptation quality and capacity, and protection efforts towards carbon sinks like seagrass meadows, tidal marshes, and mangroves, which, when read with provisions of the UNFCCC and Paris Agreement, can become duty to restore and promote sustainable management practices for the entire ocean ecosystem.
Concluding Observations
The COSIS brief represents a major step forward in putting these questions to an international body charged with interpreting the constitution for the oceans which contains the first binding commitments related to the marine environment and has ramifications for all international instruments related to the marine environment. However, the prayers from relief still seem difficult to enforce and will require specific oversight that neither ITLOS nor International Maritime Organization seem ready or able to provide. Legal requirements on states to regulate their own corporate excesses, especially with regards to land-based sources and installations, coming from the ITLOS will likely be ignored by the states propped up by investments and oil and gas.
For COSIS though, a positive ruling and interpretation could represent another step in the staircase to justice: breaches of duties under UNCLOS and cognizable harms with caused by GHG emissions could be used to show specific state responsibilities and exact reparations and the kind of support outlined by the regimes of technical assistance, Common But Differentiated Responsibility, and preferential treatment. The connection between the scientific necessity and the due diligence requirement to take all means necessary remains at the heart of what ITLOS will decide, and their language could have a tsunami-like impact of maritime law flooding domestic treaty interpretation.
(Daniel Stein is an Associate Professor at the OP Jindal Global University, Jindal Global Law School and a Visiting Researcher at the Freie Universität Berlin.)
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