International Court Says Countries Must Reduce Greenhouse Gas To Protect Marine Environment - Forbes

International Court Says Countries Must Reduce Greenhouse Gas To Protect Marine Environment
The emblem of the International Tribual for the Law of the Seas (ITLOS) outside their premises on ... [+] September 11, 2023 in Hamburg, northern Germany. Leaders of small island states turned to the UN maritime court on September 11, to seek protection of the world's oceans from catastrophic climate change which threaten the very existence of entire countries. (Photo by Gregor Fischer / AFP) (Photo by GREGOR FISCHER/AFP via Getty Images)

On May 21, The International Tribunal for the Law of the Sea delivered their advisory opinion on the obligations of countries to prevent climate change. The opinion, while non-binding, found that countries have an obligation under the United Nations Convention on the Law of the Sea to reduce greenhouse gas emissions to protect the marine environment. The opinion could provide an important preview for how the International Court of Justice may rule on its pending advisory opinion on the Obligations of States in respect of Climate Change.

ITLOS was created in 1982 through UNCLOS, an international treaty that codified existing customary international law relating to the world’s oceans. Notably, it establishes the multiple levels of international waters, the respective rights of passage through those territories, the rights and obligations of countries, and the access and rights to natural resources. The Convention went into effect in 1994.

Currently, 168 states and the European Union have signed the Convention. The United States signed the agreement in 1994 but has yet to ratify it. Therefore, they are not a party to the Convention.

International treaties typically include a method to enforce the obligations of the signing states and to handle disputes. UNCLOS established ITLOS, based in Hamburg, Germany, to handle disputes relating to the interpretation or application of the Convention. Additionally, the Tribunal may give “an advisory opinion on a legal question if an international agreement related to the purposes of the Convention specifically provides for the submission to the Tribunal of a request for such an opinion.”

In December 2022, the Commission of Small Island States on Climate Change and International Law submitted a request to the Tribunal for an advisory opinion on the obligations of States to protect the maritime environment.

COSIS was formed by a multilateral treaty in anticipation to the 2021 United Nations Climate Change Conference, commonly referred to as COP26, held in Glasglow, Scotland. Its stated mission is “To take collective action to protect and preserve the climate system, including the marine environment, through the promotion, progressive development, and implementation of rules and principles of international law concerning climate change.”

The request posed a two-part question:

What are the specific obligations of State Parties to the United Nations Convention on the Law of the Sea (the "UNCLOS"), including under Part XJI:

(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 warm in g and sea level rise, and ocean acidification, which are caused by anthropogenic greenhouse gas emissions into the atmosphere?

(b) to protect and preserve the marine environment in relation to climate change impacts, including ocean warming and sea level rise, and ocean acidification?

In an advisory opinion, read by ITLOS Judge Albert Hoffmann, the Tribunal agreed with COSIS’ arguments and found that parties to the Convention have an obligation to prevent climate change.

For the first question, the Tribunal stated that “Anthropogenic GHG emissions into the atmosphere constitute pollution of the marine environment.” Further, it stated that “States Parties to the Convention have the specific obligations to take all necessary measures to prevent, reduce and control marine pollution from anthropogenic GHG emissions and to endeavour to harmonize their policies in this connection.”

This includes the reduction of GHG emissions “from vessels flying their flag or of their registry.” This could have an interesting impact on both the shipping and the cruise industries. For various legal reasons and tax implications, U.S. companies will register their ships in foreign countries including Panama, Nassau, and Malta. If stricter GHG emissions standards are placed on ships, the increase in operating costs may shift the equation, making a non UNCLOS country, like the U.S., more appealing.

Additionally, the Tribunal stated that “States Parties have the specific obligation to assist developing States, in particular vulnerable developing States, in their efforts to address marine pollution from anthropogenic GHG emissions.” The Tribunal found that States have “the obligation of appropriate assistance, directly or through competent international organizations, in terms of capacity-building, scientific expertise, technology transfer and other matters.” And in “granting them preferential treatment in funding, technical assistance and pertinent specialized services from international organizations.”

To the second question, the Tribunal found that “States 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.”

While the opinion is advisory, and therefore non-binding, the opinion of the Tribunal will dictate how national courts should interpret UNCLOS. This will feed climate change litigation throughout the world and push countries to adopt stricter legal obligations on businesses to comply with the new responsibilities.