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Symposium: Climate Justice in International Courts: Working Towards a Livable Future

Intergenerational Climate Justice under the Law of the Sea: The ITLOS Advisory Opinion Request by the Commission of Small Island States

by Lianne Baars and Zoe Nay
Published on 2 August 2023

Introduction

On 12 December 2022, the Commission of Small Island States on Climate Change and International Law (COSIS), established by Tuvalu and Antigua and Barbuda, submitted its request for an advisory opinion on climate change to the International Tribunal for the Law of the Sea (ITLOS). In doing so, the Commission wishes to clarify the obligations that states have to protect and preserve the marine environment, and to prevent pollution and degradation of marine ecosystems with respect to the adverse impacts of climate change. As the first officially communicated request for such an advisory opinion – followed by requests to the Inter-American Court of Human Rights and the International Court of Justice in 2023 – the ITLOS advisory opinion offers a unique opportunity to elucidate the scope and content of states’ climate change obligations under the law of the sea regime.  This blog post contributes to the growing body of scholarship on the prospective ITLOS advisory opinion by: first, examining the substance of states’ obligations under the law of the sea with respect to climate change; and second, analysing the potential implications of the ITLOS advisory opinion for future generations, particularly those from small island states.

Climate change obligations under the law of the sea

While the United Nations Convention on the Law of the Sea (UNCLOS) does not explicitly reference greenhouse gas (GHG) emissions, climate change, or related issues like ocean acidification, Part XII of the Convention on the protection and preservation of the marine environment can be interpreted to address these matters. Insofar as climate change has harmful effects on the marine environment, ITLOS can stipulate that Part XII obliges states to prevent, reduce and control GHG emissions.

Article 192 of UNCLOS sets out the general obligation to protect and preserve the marine environment, which applies to all activities, across all maritime zones. The scope of this obligation is informed by Article 194(1), which requires states to prevent, reduce, and control pollution of the marine environment from any source, including those from or through the atmosphere. ‘Pollution’ is defined in Article 1(1)(4) UNCLOS in broad terms, as the introduction, directly or indirectly, of substances or energy that results in actual or prospective harms to the marine environment.

Applied in the context of climate change, carbon dioxide emissions (a ‘substance’) have affected the chemistry of ocean waters, leading to ocean acidification and deoxygenation. Further, the ocean has absorbed more than 90 percent of excess heat (a source of ‘energy’) that has accumulated in the climate system due to anthropogenic GHG emissions, which, in turn, drives sea level rise and coastal erosion. There can thus be little doubt that these adverse impacts are ‘deleterious’ for marine ecosystems and for communities that depend on the oceans for their lives and livelihoods – especially in small island states.

If ITLOS indeed recognises that GHG emissions constitute ‘pollution’ that can harm the marine environment, this raises the question of what obligations states have under Part XII of UNCLOS to prevent, reduce, and control such pollution. As a starting point, UNCLOS courts and tribunals have interpreted the general obligation to protect the marine environment to include both a positive obligation to ‘prevent or at least mitigate’ significant harms of the marine environment and a negative obligation not to degrade its current status. In the context of climate change, this would imply an obligation to mitigate GHG emissions while refraining from other activities that could further degrade the marine environment, such as fossil fuel extraction from the seabed.

The subsequent provisions of Part XII of UNCLOS require states to adopt and implement laws and non-binding measures relating to different sources of marine environmental pollution, including land-based pollution (Article 207) and atmospheric pollution (Article 212).  Both provisions contain rules of reference that call for states to ‘take into account relevant international rules, standards and recommended practices or procedures’. In the context of climate change, the most relevant source to refer to would be the treaties of the international climate change regime; in particular the 2015 Paris Agreement. On this basis, all parties to UNCLOS would be required to consider the rules and standards of the Paris Agreement when undertaking activities that are likely to result in harm to the marine environment, irrespective of whether they are also parties to the Paris Agreement. For states that are parties to both treaties, it can be argued that compliance with the Paris Agreement constitutes a minimum binding standard for action required under UNCLOS. Accordingly, Part XII of UNCLOS could reinforce the need for states to adopt and implement laws and regulations that mitigate climate change and its adverse effects while aiming for GHG emission stabilization. Taking it even further, some scholars have argued that Part XII of UNCLOS could oblige states to take measures beyond those required under the Paris Agreement, insofar as states’ climate change commitments remain insufficient to address similar adverse impacts on the marine environment, such as ocean acidification.

Implications of the law of the sea for intergenerational climate justice

It is an oft recognised reality that the adverse impacts of climate change are disproportionately borne by those that have contributed least to its causes; this applies equally with respect to the marine environment. Small island states are particularly vulnerable to the impacts of climate change on the marine environment, like ocean warming, sea level rise, and ocean acidification. At the same time, it is important to recognise that much of the harm caused by climate change will occur in the future. Future generations, and particularly those from small island states, will therefore undeniably experience the lion’s share of adverse climate impacts on the marine environment caused by historic and current emissions.

This is clearly at odds with the principle of intergenerational equity – which was recognised in the Paris Agreement as one that states should promote and consider in their climate action. Although UNCLOS does not expressly mention the rights of future generations, the preamble of the recently adopted Agreement on the Conservation and Sustainable Use of Marine Biodiversity in Areas Beyond National Jurisdiction (the BBNJ Agreement) does express that state parties ‘desir[e] to act as stewards of the ocean in areas beyond national jurisdiction on behalf of present and  future generations by protecting, caring for and ensuring responsible use of the marine environment, maintaining the integrity of ocean ecosystems and conserving the inherent value of biodiversity of areas beyond national jurisdiction.’ Accordingly, the BBNJ Agreement measures the ‘sustainable use’ of biological diversity by reference to ‘maintaining its potential to meet the needs and aspirations of present and future generations’. While not an obligation per se, the principle of intergenerational equity informs the interpretative context of the BBNJ, and can guide states to consider the rights and interests of future generations in relation to the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction. This is important in the context of climate change, given that ocean warming and ocean acidification have major implications for the abundance and distribution of marine biodiversity, with disproportionate implications for current and future generations of coastal states that are particularly reliant on the ocean for economic and food security.

Alongside the Paris Agreement, the BBNJ Agreement could inform the content of Part XII of UNCLOS as ‘relevant international rules’, supporting a reading of states’ obligations to protect and preserve the marine environment in light of the principle of intergenerational justice. This ‘integrative’ interpretation reflects the approach taken in the South China Sea Arbitration, in which ITLOS drew on the Convention on Biological Diversity and the Convention on the International Trade of Endangered Species to inform the content of states’ obligations to protect and marine environment, including fragile ecosystems and depleted, threatened, or endangered species. In answering the advisory opinion request put forward by COSIS, ITLOS could confirm this interplay between international systems with respect to climate change and the law of the sea, particularly as it concerns the special circumstances of small island states and future generations with respect to the protection of the marine environment.

Conclusion

While advisory opinions are by their very nature non-binding, this does not necessarily mean they lack legal effects. An ITLOS advisory opinion on climate change could prove influential for shaping further international and domestic climate litigation efforts, especially considering the two other requests for advisory opinions. To date, climate change litigation has not engaged much with the law of the sea and its interplay with intergenerational justice. However, there has been a recent emergence of cases discussing climate change impacts to the marine environment and related harm to those dependent on the ocean (see here, here, here, and here), as well as the fundamental importance of the ocean as a carbon sink (see here). The ITLOS advisory opinion has the potential to support further strategic litigation targeted at implementing or enhancing states’ mitigation measures to prevent further harm to the marine environment and ocean-dependent communities.

For the small island states behind COSIS, the role of the law of the sea in addressing climate change is not merely a legal question but a question of how to protect and preserve ecosystems, lives, livelihoods, and their connections to land and sea, both now and for generations to come. As Tuvalu’s Prime Minister, the Honourable Kausea Natano, stated: “[i]f 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”.  It is becoming increasingly clear that such complex climate change impacts cannot be comprehensively addressed by a single legal regime. The ITLOS advisory opinion provides another forum to ensure climate justice for both present and future generations.

Lianne Baars is a PhD candidate at the Grotius Centre for International Legal Studies, Leiden University. Her doctoral research explores the procedural challenges encountered when bringing climate change litigation to international human rights courts and bodies.

Zoe Nay is a PhD candidate at Melbourne Law School, and a Research Fellow at Melbourne Climate Futures – an interdisciplinary initiative at the University of Melbourne which aims to accelerate the transition to a positive climate future. Zoe’s doctoral research examines the role of international law in addressing climate change-related loss and damage experienced by Pacific Island States.

Lianne and Zoe are both members of the Academic Taskforce at World’s Youth for Climate Justice – a global youth led movement campaigning to seek an Advisory Opinion from the World’s Highest Court on the issue of climate change and human rights.