Tackling Climate Change Through UNCLOS and Beyond – Cambridge International Law Journal

Introduction

This week, the Worldwide Tribunal for the Legislation of the Sea (ITLOS) delivered its extremely anticipated Advisory Opinion requested by the Fee of Small Island States (COSIS) on Local weather Change and Worldwide Legislation. It marks a big milestone in worldwide local weather change legislation, significantly in establishing and clarifying States’ obligations to scale back anthropogenic greenhouse gasoline (GHG) emissions affecting the marine surroundings. The Advisory Opinion holds significance for 5 key causes, though its precise impression stays to be seen.

Firstly, the Advisory Opinion expands ITLOS’ jurisdictional foundation for advisory opinion proceedings. Secondly, it’s noteworthy that a world courtroom acknowledged the relevance and evidential foundation of the 2023 Synthesis Intergovernmental Panel on Local weather Change (IPCC) Report. Thirdly, the Tribunal rejected the lex specialis argument, in respect of the Paris Settlement, illustrating that the Paris Settlement and UNCLOS entail separate obligations for States to fulfil independently. Fourthly, the Tribunal endorsed a synergistic strategy to addressing local weather change, incorporating obligations to scale back air pollution from bunker fuels emitted by vessels and aircrafts all through the opinion. For example, States are obliged to scale back not solely sea-based but additionally land-based air pollution (para 441(e)). Fifthly, the Advisory Opinion embraced the due diligence precept inside the United Nations Legislation of the Sea (UNCLOS) regime, aligning with the development established within the Seabed Disputes Chambers (SDC), the place States have a major obligation to enact home laws to mitigate marine air pollution from GHGs, by way of a typical however differentiated obligations and respective capabilities (CBDRRC) lens.

II. Unlocking ITLOS Advisory Opinions: Exploring Jurisdictional Foundations

Advisory proceedings earlier than the ITLOS are uncommon in comparison with the Worldwide Court docket of Justice (ICJ) and even the Inter-American Court docket of Human Rights (IACtHR), which have established advisory opinion procedures. With out an express jurisdiction (see right here, right here and right here), ITLOS interpreted its authority to ship advisory opinions by way of Article 21 of its Statute. The SRFC Advisory Opinion prolonged the jurisdictional foundation to “all issues” stemming from different agreements, which might on this case be the COSIS Settlement (para 87). Thus, Article 21, along with “different agreements”, just like the COSIS Settlement, enabled ITLOS to render an advisory opinion. This strategy, supported by State Events, is additional endorsed by the current BBNJ Settlement, which permits ITLOS to institute advisory proceedings per Article 47(7) BBNJ (see additionally right here). This development appears to additional solidify and develop a way of conferring an advisory jurisdictional foundation to ITLOS by way of “different agreements” which expressly permit the Tribunal to reply advisory opinion requests.

Moreover, Article 138 of its Guidelines outlines three additional preconditions for exercising advisory jurisdiction (paras 94-95). The Tribunal analysed questions (a) and (b) of the advisory request, concluding they concerned authorized points requiring interpretation of UNCLOS and the COSIS Settlement, thus establishing jurisdiction (paras 102-104, 109).  Recognising local weather change as a ‘widespread concern of humankind’ with vital impacts on the marine surroundings, the Tribunal determined to contemplate the request (para 122).

When it comes to relevant legislation, the Tribunal selected to not comply with the strategy within the 2011 Advisory Opinion of the SDC of utilizing each major and secondary obligations. As an alternative, it centered on major sources of worldwide legislation, referring to secondary norms provided that vital (para 150). The Tribunal emphasised that related guidelines on anthropogenic GHG emissions are discovered not solely in UNCLOS but additionally in different worldwide devices just like the UNFCCC, the Kyoto Protocol, the Paris Settlement, Annex VI to MARPOL, Annex 16 to the Chicago Conference, the Montreal Protocol and its 2016 Kigali Modification. This highlights the operation of systemic integration by way of Article 293 UNCLOS, requiring harmonious interpretation with exterior guidelines. General, the strategy of ITLOS opening the gates of its advisory proceedings energy, is modern.

III. Combatting Marine Air pollution: Prevention, Management, and Discount

The Tribunal addressed the request for an advisory opinion in two components, query (a) coping with the precise prevention, management and discount of air pollution attributable to anthropogenic GHG to the marine surroundings; and query (b) analyzing the precise obligations of States to protect and shield the marine surroundings (para 139). The Tribunal’s solutions to those questions are mentioned in flip beneath.

a) GHG Emissions and Marine Air pollution?

In relation to query (a) of the Advisory Opinion request, the Tribunal first analysed whether or not anthropogenic GHG emissions fall beneath the idea of “marine air pollution” set out in UNCLOS (para 159). The Tribunal famous that there isn’t a exhaustive checklist talked about in UNCLOS that might prescribe what pollution classify as marine air pollution, because the Conference utilises a versatile three-tier standards stemming from Article 1(1)(4) UNCLOS (para 161). As a result of this versatile nature of the standards, the Tribunal affirmatively answered that GHG emissions fall beneath Article 1(1)(4) UNCLOS (para 178). As such, this firmly establishes that GHGs are contributing to marine air pollution.

i) State Obligations beneath Article 194 UNCLOS

The Tribunal addressed State Events’ obligations beneath Article 194(1) UNCLOS to scale back, management, and stop marine air pollution by way of vital measures (para 193). It emphasised the significance of scientific proof, notably IPCC stories, in figuring out these measures (paras 208-212). Nonetheless, in circumstances of scientific uncertainty, the precautionary precept ought to be utilized (para 213).

The Tribunal highlighted the relevance of exterior treaties like Annex VI to MARPOL and Annex 16 to the Chicago Conference, which require management of air pollution from vessels and aircrafts. This exhibits UNCLOS’s integration with sectoral worldwide legislation regimes associated to bunker fuels and GHG emissions.

The Tribunal clarified that measures beneath Article 194(1) UNCLOS are separate from and complementary to the Paris Settlement. Merely following the Paris Settlement’s mitigation measures is inadequate for addressing GHG emissions affecting the marine surroundings. Separate to the Paris Settlement, States should scale back marine air pollution by way of UNCLOS and related worldwide requirements, or appeal to State accountability beneath worldwide legislation. The argument that the Paris Settlement is lex specialis was, subsequently, rejected (paras 222-224).

The duty to scale back, management, and stop marine air pollution relies on due diligence, a precept that ITLOS and the SDC utilized even to deep seabed mining, discovering that Sponsoring States should set up home legislative frameworks (paras 229, 233, 239). Citing the 2023 IPCC Synthesis Report, the Tribunal emphasised the approaching risk of local weather change to the marine surroundings, concluding {that a} “stringent” commonplace is important (para 241). Nonetheless, this commonplace will differ amongst States, according to the CBDRRC precept, which means richer States should do greater than creating and extra susceptible States with fewer capabilities (para 441(c)).

Relating to Article 194(2) UNCLOS, the Tribunal famous that States should guarantee actions inside their jurisdiction don’t trigger air pollution injury to different States or the surroundings (para 245). This contains stopping air pollution incidents from spreading past areas of their sovereign rights. The Tribunal utilized the due diligence commonplace from the SDC to stop transboundary hurt, indicating that this obligation is much more stringent than beneath Article 194(1) UNCLOS resulting from its give attention to transboundary prevention. That is apt proof that the due diligence precept is the centrepiece of successfully decreasing, controlling and stopping marine air pollution from GHGs.

ii) Synergistic Strategy

The Tribunal concluded its response to the primary query on the duty of States to stop, management, and scale back air pollution from GHGs by establishing particular obligations of States relating to air pollution sources, focusing significantly on Articles 207 to 212 UNCLOS (paras 259-264). The Tribunal highlighted three major sources of marine air pollution: land-based air pollution, vessels, and aircrafts.

For land-based air pollution, the Tribunal acknowledged that States have an obligation to take part in local weather change regimes, such because the Paris Settlement by way of Article 207(4), and implement nationwide laws to scale back GHGs (paras 266-273). As such, it discovered that States should frequently endeavour to strengthen all the local weather change regime by way of numerous world or regional authorized devices. For aircrafts, beneath Article 212 UNCLOS, States are required to enact nationwide legal guidelines to scale back atmospheric air pollution and comply with worldwide requirements, together with Quantity IV of Annex 16 to the Chicago Conference, which established the Carbon Offsetting and Discount Scheme for Worldwide Aviation (CORSIA). Related due diligence duties apply to States in relation to air pollution emitted by vessels by implementing Worldwide Maritime Organisation (IMO) requirements and guidelines (para 277).

The Tribunal’s strategy integrates the local weather change regime beneath the UNFCCC and its protocols with GHG emissions from delivery and aviation sectors, which the Kyoto Protocol “arguably” delegated to the IMO and the Worldwide Civil Aviation Organisation (ICAO) beneath Article 2(2) (see right here, right here and right here). This synergistic methodology connects sectoral approaches to bunker emissions with broader local weather change targets, shifting away from a fragmented strategy to a cohesive worldwide local weather change regime constant not solely of 1 authorized instrument. This strategy is extremely appreciated.

b) Extra Adaptation and Company Accountability is Wanted!

In addressing query (b) relating to States’ obligations to guard and protect the marine surroundings in relation to local weather change, the Tribunal first emphasised the broad scope of Article 192 UNCLOS in safeguarding and conserving the marine surroundings (para 385). A notable facet developed by the Tribunal is the duty on States to revive degraded areas of the marine surroundings affected by air pollution by way of the ecosystem strategy (para 386). This underscores the significance of not solely mitigating, stopping, controlling, and decreasing marine air pollution from GHGs but additionally implementing adaptation measures, which are sometimes deemed insufficient and sluggish beneath the UNFCCC regime, in accordance with Leiter. Given the ocean’s vital function as a blue carbon sink, States should tackle each GHG emissions affecting the marine surroundings and implement measures to adapt to opposed local weather change impacts (para 392-393). A big development ahead, is the event of the duty of States to make sure that non-State actors, reminiscent of companies and carbon majors, adjust to preservation and safety measures beneath their jurisdiction (para 396). This provision marks progress in company accountability, requiring States to take due diligence actions, doubtlessly even towards fossil gas firms and subsidies.

IV. Wanting Ahead

Wanting forward, there may be hope that the ICJ will undertake a equally synergistic strategy in its forthcoming advisory opinion. States are presently getting ready their written submissions, due by June 24, 2024. It’s anticipated that the ICJ will tackle a number of of the important thing options talked about earlier, doubtlessly fostering further synergies between numerous worldwide authorized devices to additional advance efforts in combating local weather change.

Renatus Otto Franz Derler LLB (Buckingham), LLM (Cantab), and MPhil in Environmental Coverage Candidate on the College of Cambridge. He’s additionally a Researcher on the Centre for Worldwide Sustainable Growth Legislation, and Weblog Supervisor and Managing Editor (2023-24) with the Cambridge Worldwide Legislation Journal.

The writer wish to thank Professor Harro van Asselt and Richard Wagenlander, BA (Oxon), LLM (Cantab), for his or her invaluable feedback. Any remaining errors are my very own.