Court expected to issue its opinion by early 2024
This article was written by Joie Chowdhury.
After two weeks, public hearings at the International Tribunal for the Law of the Sea (ITLOS) in relation to the request for its Advisory Opinion on climate change and international law concluded on September 25, 2023. These legal proceedings, initiated by the Commission of Small Island States on Climate Change and International Law (COSIS), have the potential to advance ambitious climate action after decades of political inertia that have plagued international climate negotiations and domestic climate policies.
Advancing Ambitious Climate Action
In essence, the Tribunal has been asked to clarify (a) whether greenhouse gas emissions qualify as marine pollution, and if so, what are the obligations of State Parties to the United Nations Convention on the Law of the Sea (UNCLOS) to prevent, reduce and control such pollution under international law, and (b) the obligations of these countries to protect and preserve the marine environment from climate change impacts.
The urgency of these questions cannot be overstated. At current levels of warming, climate change is already harming the marine environment and the human rights of communities around the world, in particular those living along coastlines. This historic advisory proceeding is the first time an international court will address the scope of State responsibility concerning climate change and ocean protection. More than 50 states and organizations, including the Center for International Environmental Law, weighed in through written submissions and/or oral arguments.
A Matter of Survival
Prime Minister Kausea Natano of Tuvalu highlighted the high stakes of the case, emphasizing that the very survival of some island nations is at risk: “If humankind does not act with urgency, some of our island nations will disappear under the sea within a generation. Protection of the marine environment is a matter of survival.”
The ITLOS proceedings and advisory opinion will serve as essential references for similar climate advisory opinion proceedings before the Inter-American Court of Human Rights (IACtHR) and the International Court of Justice (ICJ). These three advisory proceedings provide an unprecedented opportunity for judicial bodies to clarify that, under international law, States must urgently phase out fossil fuels effectively and equitably, align climate mitigation ambition with science, adopt effective adaptation measures, and provide remedies for impacted communities.
Key Highlights from the Hearings: Charting Pivotal Legal Arguments
The hearings unfolded in Hamburg, Germany, with COSIS pleading between September 11-12. COSIS established three bases for the upcoming opinion, focusing on the severity of climate impacts, scientific consensus, and compelling arguments regarding the existing legal obligations of States. These pleadings were then followed by other States and intergovernmental organizations intervening between September 13-25.
- Greenhouse gas emissions are marine pollution triggering States’ obligations: Most delegations, with the notable exceptions of China and India, agreed that under UNCLOS, greenhouse gas emissions clearly qualify as a form of marine pollution, which States are required to prevent, reduce, and control.
- State duties must be understood in light of the best available science: Several States were in consensus that the best available science (as summarized in the work of the Intergovernmental Panel on Climate Change [IPCC]), and the imperative to limit temperature rise to no more than 1.5ºC, must guide the Tribunal’s interpretation of State obligations under UNCLOS. The African Union went further, pleading that “UNCLOS parties cannot limit their endeavors to holding the atmospheric temperature increase to 1.5ºC.” Recalling the intervention from Mozambique, the African Union argued that the 1.5ºC standard is “the start, but not the end point.” Mauritius clarified that scientific knowledge includes traditional knowledge, the knowledge of Indigenous Peoples, and local knowledge systems.
- The Court can and should address the urgent questions posed by COSIS: While some countries, including China and India (in its written submission), challenged the Tribunal’s jurisdiction, the majority advocated for ITLOS to exercise its authority in this critical matter, given the existential stakes. Disagreements surfaced, however, as to the scope of the questions before the Court. For example, some States, including France and the United Kingdom, advanced a narrow construction, and the European Union argued that issues of compensation or remedy are beyond the bounds of this opinion. Other States, however, including Micronesia, Indonesia, and the Democratic Republic of Congo, made a clear case for compensation, should damages occur as a result of marine pollution.
- Interpretation of State Duties–the Paris Agreement is not the (full) answer: The hearings also shed light on differing views regarding key questions, such as what laws apply when defining state duties on climate change. Certain countries and country alliances, including the African Union, Guatemala, Chile, Belize, Portugal, Italy, New Zealand, Mauritius, and Micronesia, argued that ITLOS should interpret States’ duties under UNCLOS harmoniously with other relevant standards under international law. Others, including the European Union, Australia, and the United Kingdom, advocated for a narrow focus on the Paris Agreement and the UN Framework Convention on Climate Change (UNFCCC), suggesting that steps taken under the climate regime satisfy their obligations under UNCLOS.
As CIEL argued in its submission to ITLOS, State obligations to curb fossil-fueled climate destruction and redress resultant harms neither start nor end with the UNFCCC and the Paris Agreement. These climate agreements do not exclusively or exhaustively set forth state obligations on climate change. States have concurrent duties with regard to climate change under international environmental and human rights law, and ITLOS should draw on these bodies of law in setting out the scope and content of States’ duties under UNCLOS. Various oral pleadings and written submissions have highlighted how relevant UNCLOS provisions (including Articles 237 (Obligations under other conventions on the protection and preservation of the marine environment), 293 (Applicable law), and 311 (Relation to other conventions and international agreements)) and the Vienna Convention on the Law of Treaties (Article 31 (3) (c)) support the position that UNCLOS must be interpreted consistently with and in light of other rules of international law.
- State duties are rooted in and should be guided by human rights law: Multiple interventions–including from Chile, Mauritius, Nauru, the Democratic Republic of Congo, Comoros, African Union, and Micronesia–emphasized the importance of human rights, Indigenous Peoples’ rights, and the right to a clean, healthy, and sustainable environment, guiding the Tribunal in its deliberations. Many written views submitted to the tribunal by non-governmental experts similarly affirmed this argument. Intergenerational equity and the rights of future generations were explicitly referenced in the course of the hearings, including by COSIS and Chile.
As CIEL has argued before ITLOS and the European Court of Human Rights, consistent with the principle of intergenerational equity, States must not delay climate action in reliance on speculative future measures that risk an overshoot of 1.5°C and impose a disproportionate burden onto future generations. Certain delegations such as France, the United Kingdom, and the International Union for the Conservation of Nature (IUCN), underscored the need for a precautionary approach to technological responses to climate change and its ocean impacts. Such precaution is particularly important when there are plausible indications that technologies, including geoengineering, pose potential risks to the marine environment.
Given widespread human rights harm caused by the structural drivers and accelerating impacts of climate change, States on the frontlines of the climate crisis, including COSIS, Bangladesh, and Mauritius, understandably highlighted adaptation needs, and the obligation of States, in particular developed States, to provide adequate climate finance.
- Heightened risks require heightened due diligence: States took different approaches to the substantive content of their due diligence obligations – continuous duties to identify, prevent and mitigate risks of harm – in relation to protection of the marine environment. The United Kingdom argued that the best available science, including the 1.5°C target, has limited relevance to the precise content of ‘due diligence’ obligations. Meanwhile, Australia suggested that due diligence obligations under UNCLOS might be met merely through ratification of the Paris Agreement and the achievement of Nationally Determined Contributions (NDCs). However, delegations including COSIS, Mauritius, and Belize, argued that existing law requires a stringent standard of due diligence given the heightened risks posed by climate change and in line with the principle of common but differentiated responsibilities and respective capacities (CBDR-RC).
- State duties require action on fossil fuels: Certain States referenced fossil fuels as a key source of harm to marine ecosystems. Mauritius clearly named fossil fuels as the principal driver of greenhouse gas emissions polluting the marine environment, recognizing as many States did at the recent UN Climate Ambition Summit, that the climate crisis is a fossil fuel crisis. Mauritius argued … “…[T]o avert disaster, the science-driven focus has to be on phasing out fossil fuel combustion and all related activities. Anything less in your opinion will be seen as platitudes. The Tribunal has to address that scientific reality…”
IUCN agreed that State duties require action on fossil fuels. Its oral pleadings emphasized that ensuring State climate policies reflect “the highest possible ambition” and meet due diligence obligations means “doing the utmost.” A State cannot be said to be acting consistently with that ambition if it ignores the extraterritorial consequences of scope 1, 2, and 3 greenhouse gas emissions, including impacts on the marine environment. IUCN argued that it would “hardly be justifiable for a State with significant fossil fuel exports to claim “highest possible ambition” in its climate policy and to have acted with due diligence if emissions caused by these exports remain completely unaddressed.”
The Road Ahead
Oceans play a crucial role in climate mitigation and adaptation. A strong, progressive advisory opinion from ITLOS would provide meaningful and unambiguous guidance to State Parties regarding their legal obligations under the law of the sea, understood in light of their duties under international human rights law and other relevant international law, to protect the oceans. Such an outcome would be a critical step to effectively safeguard marine ecosystems, address the climate crisis, and uphold human rights.
The hearings are crucially important in and of themselves, and also because they indicate how States may argue in future international and regional climate cases, including the advisory opinion proceedings before the Inter-American Court of Human Rights and the International Court of Justice. Unlike what they do in closed-door negotiations, governments cannot hide what they say in open court. The airing of State positions thus provides an important foundation for accountability at the national level. Governments’ arguments before ITLOS often deviated from their claims of climate leadership, illuminating the need for nations to bridge the gap between their rhetoric and action on climate. Additionally, smaller States facing the worst impacts of the climate crisis made powerful legal arguments before the Tribunal, underscoring the key role of international law in advancing climate justice. Such engagement from highly climate-vulnerable nations will be equally important in upcoming hearings before the IACtHR and the ICJ.
The ITLOS advisory opinion is due in the next 6-8 months.
A recording of the hearings can be watched here and written submissions/verbatim records/other relevant documents can be found here. The joint submission of CIEL and Greenpeace International can be read here.
Joie Chowdhury, is a Senior Attorney of Climate Litigation and Accountability for CIEL’s Climate & Energy Program.