By: Suleman Yousaf (Pakistan)

The 21 judges of the ITLS (International Tribunal for the Law of the Sea) have found that nations can protect the oceans from the effects of climate change under this law. In a unanimous statement under the Advisory Opinion on Climate Change & International Law which is widely being considered as a “landmark decision.”

This has occurred for the first time that an international court/tribunal has laid out state obligations for mitigating climate change under the UN Convention on the Law of the Sea. 

The global ocean covers roughly 72 percent of the Earth’s surface and holds 98 percent of its water. As per findings by the advisory opinion, the ocean has taken up approximately 90 percent of the excessive heat within the climate phenomenon. 

Small island states with large oceans are mostly under threat by the effects of climate change on the ocean. Yet, the ruling has importance for Australia, having sovereign rights over a significant portion of the ocean under maritime jurisdiction, which is more than 50 percent of its total land area without including Antarctica. 

For Some States, It’s A Matter of Survival:

The impacts of climate change include coral bleaching, ocean warming, rising sea levels, and acidification which are existential threats for some island countries. 

For instance, Tuvalu in the Southern Pacific region has 9 low atolls and over 100 reef islands. Their total land area comprises 26 square kilometers with an average height above sea level ranging less than 3 meters. 

Rising sea level in countries like Tuvalu is merely one part of the issue. Increased intensity and frequency of extreme weather events significantly amplify the threat. 

Cyclone Pam in 2015 displaced more than 45 percent of the people in Tuvalu with total loss and damages costing more than USD 10 million. This is more than 3rd of the country’s national GDP. 

Specific Obligations Laid Out by the Tribunal

The tribunal recognized that greenhouse gas emissions have a significant role in the pollution of the marine environment. 

According to the tribunal, all the stakeholder nations have specific obligations to tackle the issues impacting the oceans resulting from greenhouse gas emissions including both the maritime areas and high seas under state jurisdiction. 

These obligations include preventing, reducing, and controlling marine pollution due to emissions from land-based sources, ships, vessels under their registry or flying their flag, and other offshore activities including gas and oil extractions. 

States must also take actions required to implement the international standards set by authorized international organizations such as IMO (International Maritime Organization) and ICAO (International Civil Aviation Organization). 

States must act on the best available international rules and science standards. The tribunal also highlighted the importance of the Paris Agreement and the UN Framework Convention on Climate Change intending to limit global temperature increase to 1.5 degrees centigrade above pre-industrial level to combat climate change. 

These measures are among the principles of conduct to make mandatory efforts rather than responding to the outcomes. These can result in protecting the fragile ecosystem and the habitats of endangered species along with living marine resources that are directly under the impact of climate change. 

Advisory Opinions Hold Their Ground

The tribunal’s findings do carry weight despite being an advisory opinion. Such previous opinions also made critical contributions to the law. 

For instance, the tribunal’s decision on illegal fishing and seabed mining in water under state jurisdiction standardized due diligence under the law of the sea. 

Another advisory opinion from the International Court of Justice persuaded the United Kingdom to resume negotiations with Mauritius over any future return of the Chagos Islands. It also helped the tribunal resolve the maritime border dispute between Mauritius and Maldives. 

The advisory opinion of May 2024 underpins efforts by different developing yet vulnerable states, including the small island countries that don’t have any contribution to climate change. It holds the developed world accountable for its practices directly impacting climate change. 

As per the law of the sea, states are responsible for failing to comply with the rules to prevent pollution and keep the marine environment safe. 

The tribunal has confirmed that these tiles apply to ocean acidification and climate change. This advisory opinion can open new avenues to future litigation efforts to address climate change issues associated with oceans using the convention’s mandatory dispute resolution processes.