Win for small island states as top maritime court calls GHG emissions a form of marine pollution

States have an obligation to reduce their emissions to protect our ocean and climate action needs to go beyond the Paris Agreement for countries to meet their legal obligations on marine protection, says the Court

The world’s highest court for marine protection, the International Tribunal for the Law of the Sea (ITLOS) said that greenhouse gas emissions are a form of marine pollution under the UN Convention on the Law of the Sea (UNCLOS). 

ITLOS said that States must comply with a wide-ranging set of obligations under UNCLOS and should  take “all necessary measures” to prevent, reduce and control GHG emissions from any source. 

A top maritime court issuing an unprecedented advisory opinion on what states must do to safeguard our oceans from the impacts of climate change is being hailed as a great move for climate action.

In the advisory, ITLOS established that nations are required to limit temperature rise to 1.5°C in order to safeguard and conserve the maritime environment. This necessitates putting all required climate change mitigation measures into action, regulating commercial operations, and restoring and bolstering ecosystems’ ability to adapt. ITLOS concluded that nations could face consequences if they don’t fulfil those commitments. 

The advisory opinion from the international tribunal came as a response to the efforts of Antigua, Barbuda, Tuvalu, and the Commission of Small Island States on Climate Change (COSIS) and International Law, who submitted two questions on climate change to the Tribunal in 2022 related to government obligations to protect the marine environment and climate change.

Richer and high-polluting states must take responsibility

Despite having made the fewest contributions to the climate problem, small island states are most negatively impacted. Wealthier and more polluting states have to bear the weight of their past and present contributions to climate change, said the tribunal.

ITLOS recognised that States must do more than simply meet their obligations under the Paris Agreement and must take a precautionary approach in meeting their stringent due diligence obligations. ITLOS further found that climate change and ocean acidification affect all forms of marine life and require the conservation of living resources and marine life. As the Tribunal found, these obligations are a means of addressing the inequitable situation faced by developing countries, in particular, those most impacted by climate change, such as Small Island Nations.  

“For the first time, an international court has recognized that the fates of two global commons — the oceans and the atmosphere — are intertwined and imperilled by the climate crisis. This historic climate advisory opinion by the International Tribunal for the Law of the Sea unequivocally affirms that States have clear and specific obligations under international law to act urgently, ambitiously, and equitably to protect our precious oceans from the drivers and impacts of climate change,” said Joie Chowdhury, senior attorney, Center for International Environmental Law (CIEL) . 

In its advisory opinion, ITLOS also established that to protect and preserve the oceans from climate change impacts, countries have the duty to take all measures necessary to prevent, reduce and control pollution of the marine environment from any GHG emissions, including in a transboundary setting and in line with the best available science. 

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