Will Morton: ICA Legal Policy Intern
Abstract: Antigua and Barbuda and Tuvalu are leading a coalition of small island nations to seek an advisory opinion from the International Tribunal for the Law of the Sea (ITLOS). The coalition seeks an opinion on whether the obligations laid out in the 1982 United Nations Convention on the Law of the Sea (UNCLOS) cover the damage that Global Warming does to the oceans.
Background: The 1982 UNCLOS established a "comprehensive legal framework to regulate all ocean space"(ITLOS). The treaty has been signed and ratified by 168 parties (UN). Notably, the United States has not ratified it but other major greenhouse gas producers like China and the EU are parties to the treaty (UN). The convention created ITLOS to weigh in on disputes over the interpretation and implementation of UNCLOS. In the Journal of Climatic Change, Researcher Doctor Carola Betzold notes that small island nations are only responsible for 1% of carbon emissions. However, they are disproportionately affected by the effects of greenhouse gases that drive climate change. Small island nations are struggling due to rising sea levels, changes in fish populations, and climate-driven weather disasters (Betzold).
The Big Picture: Many experts expect this upcoming opinion to be used in future cases arguing for damages for the island nations. Professor of international law Alan Boyle at the University of Edinburgh says that if this advisory opinion comes out in favor of the Island nations it “would open the way to bringing successful proceedings for claims here or in other international courts” (New York Times).
The Law in Question: ITLOS is being tasked with making a statement on whether the following sections of UNCLOS refer to greenhouse gas pollution and its effects on the ocean.
Article 194 (1) “States shall take, individually or jointly as appropriate, all measures consistent with this Convention that is necessary to prevent, reduce, and control pollution of the marine environment from any source"(UNCLOS).
Article 192 “States have the obligation to protect and preserve the marine environment"
World Reactions: In advisory opinions submitted to the tribunal 31 states laid out their arguments.
The Small Island Coalition "Article 194 ... encompasses anthropogenic GHG emissions responsible for climate change" "Under Article 192, States have a broad obligation to protect and preserve the marine environment from climate change and its effects"
China: "The Full Tribunal does not have advisory competence". "China has actively responded to climate change."
EU: "Advisory Opinion should interpret UNCLOS as laying down obligations to protect and preserve the marine environment and prevent, reduce, and control pollution thereof also as regards the deleterious effects of climate change." "The Advisory Opinion should further consider the Paris Agreement as the most relevant instrument to inform the due diligence obligation."
UK: The UK argues that the tribunal can take up this case, but the tribunal should be careful when picking cases in general. "The United Kingdom considers that climate change... fall within the scope of Part XII of UNCLOS.”
Sierra Leone: "In the climate change context, [articles 194 and 192] involve protecting and preserving the marine environment not only from pollution, but also from the impacts of climate change in a broader sense including from loss of biodiversity and habitat and the impact on fisheries."
Works Cited
Betzold, Carola. "Adapting to climate change in small island developing states." Climate Change, vol. 133, 21 Apr. 2015, pp. 481-89, link.springer.com/article/10.1007/s10584-015-1408-0#citeas.
China. "Written Statement of the People's Republic of China." Climate Case Chart, 15 June 2023, climatecasechart.com/wp-content/uploads/non-us-case-documents/2023/20230615_Case-No.-312022_opinion-4.pdf.
Commission of Small Island States. "Request for Advisory Opinion." Climate Case Chart, 12 Dec. 2022, climatecasechart.com/wp-content/uploads/non-us-case-documents/2022/20221212_Case-No.-312022_points-of-claim.pdf.
Commission of Small Island States. "Written Statement of the Commission of Small Island States on Climate Change and International Law." Climate Case Chart, 16 June 2023, climatecasechart.com/wp-content/uploads/non-us-case-documents/2023/20230616_Case-No.-312022_opinion-3.pdf.
European Union. "Written Statement by the European Union." Climate Case Chart, 15 June 2023, climatecasechart.com/wp-content/uploads/non-us-case-documents/2023/20230615_Case-No.-312022_opinion-5.pdf.
International Tribunal for the Law of the Sea. "The Tribunal." ITLOS, UN, www.itlos.org/en/main/the-tribunal/the-tribunal/.
Sierra Leone. "Written Statement of the Republic of Sierra Leone." Climate Case Chart, 16 June 2023, climatecasechart.com/wp-content/uploads/non-us-case-documents/2023/20230616_Case-No.-312022_opinion-27.pdf.
Simons, Marlies. "Island Nations Hope for Court’s Help on Climate’s Effects." New York Times, 11 Sept. 2023, www.itlos.org/en/main/the-tribunal/the-tribunal/.
United Kingdom. "Written Statement of the United Kingdom." Climate Case Chart, 16 June 2023, climatecasechart.com/wp-content/uploads/non-us-case-documents/2023/20230616_Case-No.-312022_opinion-25.pdf.
United Nations. "United Nations Convention on the Law of the Sea." UN, www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf.