International tribunal finds states have legal obligations to cut marine emission

The International Tribunal on the Law of the Sea (ITLOS) has issued its advisory opinion on emissions that advocacy groups say “enhances the legal basis for addressing climate change impacts on the marine environment”.

It has been hailed as a “landmark opinion” that is expected to contribute to development and clarification of international law in the context of the law of the sea.

The tribunal found “anthropogenic greenhouse gas (GHG) emissions into the atmosphere” do count as pollution of the marine environment, and State parties to the UN Convention on the Law of the Sea (UNCLOS) “have the specific obligations to take all necessary measures to prevent, reduce and control marine pollution from anthropogenic GHG emissions”.

They also need to “endeavour to harmonise their policies in this connection”.

The tribunal’s finding was released this week, in response to a query from the Commission of Small Island States on Climate Change and International Law in December 2022.

The Commission’s request for an advisory opinion was two-fold:

  • What are the specific obligations of state parties to UNCLOS including under part XII: (a) to prevent, reduce and control pollution of the marine environment in relation to the deleterious effects that result, or are likely to result, from climate change, including through ocean warming and sea level rise, and ocean acidification, which are caused by anthropogenic greenhouse gas emissions into the atmosphere?
  • And (b) to protect and preserve the marine environment in relation to climate change impacts, including ocean warming and sea level rise, and ocean acidification?

The Tribunal also found state parties have the specific obligation to “take all measures necessary to ensure that anthropogenic GHG emissions under their jurisdiction or control do not cause damage by pollution to other states and their environment”, and that pollution from such emissions does not spread beyond their own soveriegn areas.

It also said state parties need to assist developing states, in particular vulnerable ones, in their efforts to address marine pollution from anthropogenic GHG emissions.

There is also an obligation to to protect and preserve the marine environment, which has a broad scope, “encompassing any type of harm or threat to the marine environment”, the ITLOS said.

“Under this provision, state parties have the specific obligation to protect and preserve the marine environment from climate change impacts and ocean acidification.

“Where the marine environment has been degraded, this obligation may call for measures to restore marine habitats and ecosystems.”

The tribunal underscored that states have obligations under the law of the sea, which are additional to those contained in the 2015 Paris Agreement.

‘An important advancement’

The Pacific Islands CLimate Action Network (PICAN) said by explicitly linking UNCLOS to the Paris Agreement, the opinion mandates that States integrate their climate commitments with marine protection efforts.

Acting regional director Rufino Varea said PICAN is pleased that the advisory opinion by the ITLOS makes it “abundantly clear” that countries “must do more to curb the transboundary pollution of GHG, and to protect and preserve our marine environment”.

“Our home is primarily made up of oceans and atmosphere rather than land. Our future depends on their sustainability and resilience in the face of climate change.

“Every action, no matter how small, plays a significant role in shaping the realities that our present and future generations will encounter.

“We see this as an important advancement because we have consistently emphasised the need to maintain global warming at 1.5 degrees Celsius,” he said.

Ruling ‘relevant for sustainable environment’

Greenpeace Australia Pacific’s Shiva Gounden said the ruling supports the fact that climate change, driven by the burning of fossil fuels, is causing the degradation of our marine environment.

“For the communities of our Pacific Island nations who have deep connections to the ocean, the threats are both economic and existential – as the climate crisis impacts livelihoods, erodes culture, and even threatens to wash away the very land they call home,” he said.

“This historic moment is part of a much larger climate justice narrative, with similar cases before the international courts seeking to use the power of the law to address the accelerating injustices of the climate crisis.”

“The Tribunal’s opinion is particularly relevant for the implementation of the human right to a clean, healthy and sustainable environment.”

Pacific Ocean Commissioner Dr Filimon Manoni the advisory opinion confirmed what the Pacific region has long asserted: “that the emissions of Green House Gases are indeed sources of pollution to the marine environment”.

“In the Advisory Opinion, the Tribunal essentially recognises that the provisions of the Convention on the Law of the Sea (the Convention) apply to the consideration of GHG emissions, in particular provisions from part XII on the protection and preservation of the marine environment and to prevent, reduce and control marine pollution from anthropogenic GHG emissions.

“This Advisory Opinion comforts our objectives and priorities as a Blue Pacific Continent as highlighted in the 2050 strategy.”

-The full ruling can be found here.

According to the news on Radio New Zealand

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