The International Tribunal for the Law of the Sea (ITLOS) has declared that signatory states of the UN Convention on the Law of the Sea (UNCLOS) have an obligation to protect the ocean from the impacts of climate change, with small island countries hailing the decision as a victory.

In its first climate-related legal opinion, the court officially recognised that GHG emissions are a form of marine pollution under UNCLOS, urging the 169 signatory nations to implement measures to protect marine habitats and species that are most vulnerable to climate impacts.

“Under article 194, paragraph 5, of the Convention, States Parties have the specific obligation to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened, or endangered species and other forms of marine life from climate change impacts and ocean acidification,” ITLOS said in its decision.

The opinion came in response to a request submitted by the Commission of Small Island States on Climate Change and International Law (COSIS), an intergovernmental organisation of small island states formed by Antigua and Barbuda and Tuvalu during the 2021 UN climate summit in Glasgow.

In 2022, COSIS requested an advisory opinion from ITLOS regarding states’ obligations under UNCLOS to prevent, reduce, and control pollution of the marine environment by GHG emissions, and to protect and preserve the marine environment from the adverse effects of climate change.

“This is a historic moment for small island developing nations in their quest for climate justice, an important first step in holding the major polluters accountable, for the sake of all humankind,” said H.E. Eselealofa Apinelu, Tuvalu high commissioner to Fiji.

Small island states from the Caribbean and the Pacific are facing existential threats caused by the climate crisis.

Besides Tuvalu and Antigua and Barbuda, COSIS currently has seven more members: Palau, Niue, Vanuatu, Saint Lucia, Saint Vincent and the Grenadines, Saint Kitts and Nevis, and the Bahamas.

SCIENCE-LED

As several scientific institutions unveiled in the past years, including the Intergovernmental Panel on Climate Change (IPCC), CO2 and other GHG emissions from human activities are causing shifts in water temperature, ocean acidification, and deoxygenation.

Those impacts result in changes in oceanic circulation and chemistry, rising sea levels, extreme weather, and modifications in the diversity and abundance of marine species.

In light of that, ITLOS ruled that countries must act to fulfil their obligations to prevent, reduce, and control GHG emissions through measures that align with scientists’ recommendations.

“Measures should be determined objectively, taking into account … the best available science and relevant international rules and standards contained in climate change treaties such as the UNFCCC and the Paris Agreement, in particular the global temperature goal of limiting the temperature increase to 1.5C above pre-industrial levels and the timeline for emission pathways to achieve that goal,” the court said.

Moreover, the court decreed countries with the greatest historic responsibility for the climate crisis must step up and do more to address pollution from GHG emissions than states with smaller footprints.

“Next year, states must improve the climate plans they submit to the United Nations – known as their Nationally Determined Contributions – and this outcome will be instrumental to push the countries most responsible for the climate crisis to ramp up their ambition,” said Lea Main-Klingst, lawyer at UK-based environmental organisation ClientEarth.

“And because business must follow where governments lead, companies and financial institutions are going to feel a knock-on effect from this development, too – no matter where they operate.”

Meanwhile, Daniela Fernandez, founder and CEO of the Sustainable Ocean Alliance, in a comment on LinkedIn called the decision a “historic development”, but added that it likely would not be enforced, “at least not uniformly or internationally”.

It obligates UNCLOS members to protect the marine environment from human-caused pollutants, climate change impact, and ocean acidification, according to Fernandez.

“But there are seemingly no agreed-upon specifics regarding which nations will finance ocean restoration (let alone amounts to be contributed, by when, and to whom) and what penalties will be enforced for nations who don’t comply with the ‘in good faith’ obligations,” she said.

“In other words, the mandate for international progress on preserving the ocean was left to ‘due diligence’. And since this is an Advisory Opinion, the so-called ‘obligations’ are unfortunately not binding.”

By Giada Ferraglioni – giada@carbon-pulse.com

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