Small island states have asked the world’s maritime tribunal to clarify state obligations on climate change, which could be influential for other courts.
The heads of small island states most vulnerable to climate change have criticised “endless” climate change negotiations at the start of an unprecedented maritime court hearing.
During the opening of a two-week meeting in Hamburg today to clarify state duties to protect the marine environment, prime minister of Antigua and Barbuda Gaston Browne told the International Tribunal for the Law of the Sea (ITLOS) that it was time to speak of “legally binding obligations, rather than empty promises that go unfulfilled, abandoning peoples to suffering and destruction”.
Antigua and Barbuda formed an alliance with Tuvalu in 2021 called the Commission of Small Island States on Climate Change and International Law (COSIS), which has since been joined by Palau, Niue, Vanuatu, Saint Lucia, Saint Vincent and the Grenadines, Saint Kitts and Nevis, and the Bahamas.
They have asked the tribunal for its formal opinion on state responsibilities on climate change under the UN maritime treaty that it is responsible for upholding – the 1982 UN Convention on the Law of the Sea.
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The group of small islands wants the tribunal to clearly set out their legal obligations to protect the marine environment from the impacts of climate change, including ocean warming, acidification and sea level rise.
“Empty promises”
During the first day of oral hearings, Kausea Natano, prime minister of Tuvalu, said vulnerable nations had tried and failed to secure action to cut global greenhouse gas emissions during years of international climate talks.
“We did not see the far-reaching measures that are necessary if we are to avert catastrophe,” said Natano. “This lack of political will endangers all of humankind, and it is unacceptable for small island states like my own, which are already teetering on the brink of extinction.”
Browne told the tribunal it now had the opportunity to issue a “much-needed corrective to a process that has manifestly failed to address climate change. We cannot simply continue with endless negotiations and empty promises.”
Speaking after a summer of record-breaking temperatures on both land and sea, Browne said small island nations had come before the tribunal “in the belief that international law must play a central role in addressing the catastrophe that we witness unfolding before our eyes”.
Influential opinion
COSIS members hope that a strong opinion from the tribunal will prompt governments to take tougher action on climate change. While not legally binding, the opinion could also form the basis of future lawsuits.
The alliance stresses that it is looking to the court to explain existing state obligations, rather than creating new laws.
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ITLOS does not have as high a profile as the International Court of Justice, which earlier this year was tasked by the UN to provide an advisory opinion on climate change and human rights. Nor are there as many states under its jurisdiction; the US is notable by its absence.
But the tribunal is expected to come to a conclusion much earlier – potentially within the next year. And experts say its opinion could influence that of other courts including the ICJ as well as the Inter-American Court of Human Rights, which has been asked by Chile and Colombia to provide a similar advisory opinion.
Thirty states that have signed the law of the sea, as well as the EU, submitted written statements to ITLOS before the deadline.
China is the only one to explicitly challenge the tribunal’s jurisdiction. It does not consider ITLOS to have the power to issue advisory opinions, but only to resolve disputes.
While expressing its “heartfelt compassion for developing countries including small island developing States…. confronting our common climate change challenge” China maintains that the UNFCCC is the only proper channel for addressing it.
The UK does not dispute the tribunal’s jurisdiction, but it does warn ITLOS to have “particularly careful regard to the scope of its judicial function”. The country also raised concerns about the fact that the request for an advisory opinion was raised by only a small number of states.
Limited reach
Written responses show general agreement among states that greenhouse gas emissions are a form of pollution and that they will have a serious impact on the health of the marine environment and its ability to act as a carbon sink.
But they disagree on the extent to which they are required to act on this.
In its statement, COSIS notes that the law of the sea requires states to adopt and implement “all measures that are necessary to prevent, reduce, and control pollution of the marine environment”.
Under the EU’s interpretation, however, this does not totally ban pollution of the marine environment or require states to immediately stop all pollution.
It points to existing international cooperation under the UNFCCC and the Paris Agreement and says the law of the sea does not require more stringent action.
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COSIS, however, is keen to focus on the science, saying this shows the necessity of keeping global warming to a maximum of 1.5C.
Experts speaking at the tribunal outlined the ways in which climate change was already affecting the world’s oceans and how these are likely to worsen in future.
“Science has long confirmed these realities, and it must inform the content of international obligations,” said Arnold Loughman, attorney general of Vanuatu.
