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GREENHOUSE GAS EMISSION IS MARINE POLLUTION : LAW OF THE SEA TRIBUNAL ADVISES
by Setyawati Fitrianggraeni & Alicia Daphne Anugerah*
On May 21, 2024, the International Tribunal for the Law of the Sea (ITLOS) issued an advisory opinion in response to a request submitted by the Commission of Small Island States on Climate Change and International Law (COSIS).[1] The advisory opinion addresses two important legal questions regarding the obligations of States under the United Nations Convention on the Law of the Sea (UNCLOS) in the context of climate change.[2]This decision is part of an ongoing international effort to clarify how international law, especially the UNCLOS, applies to the growing global problem of climate change and its impact on the marine environment.
Background of the Case
Small Island States, which are particularly vulnerable to the effects of climate change, including rising sea levels and ocean acidification, asked ITLOS to clarify the legal obligations of States under UNCLOS.[3] These island states heavily rely on the marine environment for their economic and environmental survival. They raised concerns about the long-term impacts of climate change on marine ecosystems and resources, calling for an interpretation of UNCLOS that includes obligations to prevent and address the adverse effects of climate change.[4]
The Commission of Small Island States, representing nations such as Antigua and Barbuda, Tuvalu, Palau, and others, submitted two legal questions for ITLOS’s advisory opinion:[5]
- What are the specific obligations of State Parties to UNCLOS to prevent, reduce, and control pollution of the marine environment concerning the harmful effects of climate change, such as ocean warming, sea-level rise, and ocean acidification caused by human-made greenhouse gas (GHG) emissions?
- What are the obligations of State Parties to UNCLOS to protect and preserve the marine environment in the face of climate change impacts?
To answer this question, the tribunal undertook an extensive review of scientific data, international treaties, and legal interpretations of UNCLOS.[6]
Key Legal Issues Considered
The tribunal explored two broad themes:
- Marine Pollution and Climate Change: ITLOS reviewed whether GHG emissions from human activities could be classified as marine pollution under the terms of UNCLOS. This was significant because if GHG emissions fall under the definition of marine pollution, States would have a clear obligation to prevent and mitigate their release.[7]
- Protection and Preservation of the Marine Environment: ITLOS examined the obligations of States to protect and preserve the marine environment in the face of climate change impacts like ocean warming, sea-level rise, and ocean acidification, focusing on whether UNCLOS imposes direct or indirect obligations on States to address these issues.[8]
ITLOS’s Findings and Decision
- GHG Emissions as Marine Pollution: ITLOS ruled that anthropogenic greenhouse gas emissions, particularly those contributing to ocean warming, sea-level rise, and ocean acidification, fall under the definition of marine pollution in the context of UNCLOS. The tribunal held that marine pollution encompasses any human activity that introduces substances or energy into the marine environment, which could harm marine life, health, and ecosystems.[9] The advisory opinion clarified that the harmful effects of GHG emissions on the marine environment, including the rising temperature of oceans and the increasing ocean acidification of ocean waters, meet the pollution criteria under Part XII of UNCLOS.[10] As a result, States are legally obligated to take action to prevent, reduce, and control such pollution.[11] This includes regulating activities within their jurisdiction and cooperating internationally to combat the detrimental effects of climate change on marine ecosystems.[12]
- State Obligations to Prevent and Control Pollution: The tribunal confirmed that UNCLOS imposes specific obligations on States to prevent, reduce, and control pollution from all sources, including land-based sources such as industrial GHG emissions.[13] These obligations are outlined in Articles 192 and 194 of UNCLOS, which require States to take all measures necessary to prevent, reduce, and control pollution from any source that could damage the marine environment.[14] ITLOS emphasized that these obligations are not limited to direct marine environment pollution (such as oil spills) but extend to activities that indirectly affect marine ecosystems through atmospheric emissions, such as GHGs contributing to climate change.[15]
- Protection of the Marine Environment: In addressing the second question, ITLOS elaborated on the broader obligation to protect and preserve the marine environment under Article 192 of UNCLOS. The tribunal reaffirmed that States have a duty not only to prevent pollution but also to take proactive steps to protect marine ecosystems from the impacts of climate change.[16] This includes addressing climate change’s causes (e.g., reducing GHG emissions) and adapting to its effects (e.g., implementing measures to protect coastal and marine ecosystems from rising sea levels and changing temperatures).[17] States must cooperate globally to address these challenges, as climate change is a transboundary issue affecting the marine environment beyond national jurisdictions. Further, States are encouraged to adopt policies that contribute to the conservation of marine biodiversity and support efforts to enhance the resilience of marine ecosystems against climate change impacts.[18]
Conclusion and Implications
The advisory opinion issued by ITLOS is a landmark advisory opinion that establishes a clear legal framework for addressing the effects of climate change on the marine environment under UNCLOS. By recognizing that GHG emissions constitute marine pollution, the tribunal has opened the door for States to be held accountable under international law for failing to take adequate measures to prevent and reduce climate-related pollution of the oceans.
This advisory opinion is especially significant for Small Island States, which are among the most vulnerable to the impacts of climate change. It strengthens their ability to demand greater action from larger, industrialized nations to reduce GHG emissions and protect the marine environment from further degradation. Additionally, the tribunal’s decision reinforces the need for international cooperation to address climate change, as no single nation can effectively combat the global threat to the oceans alone.
The ITLOS opinion is expected to influence future negotiations and legal interpretations regarding climate change and environmental law, setting a precedent for applying international treaties like UNCLOS to global environmental challenges.
In the face of escalating climate risks, this advisory opinion from ITLOS underscores the urgent need for comprehensive and collaborative international efforts to mitigate and adapt to the impacts of climate change on the oceans and the planet.
This summary captures the key points from the ITLOS decision on the legal obligations of States under UNCLOS in the context of climate change. If you would like more details on any specific aspect of the advisory opinion or scientific findings mentioned, feel free to ask.
*Setyawati Fitrianggraeni holds the position of Managing Partner at Anggraeni and Partners in Indonesia. She also serves as an Assistant Professor at the Faculty of Law, University of Indonesia, and is currently pursuing a PhD at the World Maritime University in Malmo, Sweden. Additionally, Alicia Daphne Anugerah is a researcher in the Ocean Climate Research Group – Legal Lab at Anggraeni and Partners
References :
[1] Request for an Advisory Opinion Submitted by The Commission of Small Island States on Climate Change and International Law (Advisory Opinion) [21st May 2024] ITLOS Case Number 31 (“Advisory Opinion”). The initial request was submitted on 20th December 2022, para. 1, pp. 4.
[2] Advisory Opinion, para. 102, pp. 45.
[3] Advisory Opinion, para. 1, pp. 4; see further para. 140, pp. 54 and para. 192, pp. 69.
[4] Advisory Opinion, para. 138-150, pp. 53-56.
[5] Advisory Opinion, para 3, pp. 5 para. 139 pp.53 ; see further para. 120, pp. 45.
[6] Advisory Opinion, para. 45-66, pp. 26-34.
[7] Advisory Opinion, para. 159-179, pp. 60-66.
[8] Advisory Opinion, para. 196, pp. 71; see further, para. 384-440, pp. 128-146.
[9] Advisory Opinion, para. 159-179, pp. 60-66.
[10] Advisory Opinion, para. 180-192, pp. 66-69.
[11] Advisory Opinion, para. 193-258, pp. 69-83.
[12] Advisory Opinion, para. 294-321, pp. 104-111.
[13] Advisory Opinion, para. 193-258, pp. 69-83.
[14] United Nations Convention on the Law of the Sea (“UNCLOS”), Art. 192 and 194.
[15] Advisory Opinion, para. 197-243, pp. 71-87.
[16] Advisory Opinion, para. 384-400, pp. 128-133.
[17] Advisory Opinion, para. 401-406, pp. 133-136.
[18] Advisory Opinion, para. 407-440, pp. 136-146.
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