International Tribunal for the Law of the Sea (ITLOS): In a significant development considering the dangers of climate change, the ITLOS (“Tribunal”) delivered a unanimous advisory opinion on the Request submitted to the Tribunal by the Commission of Small Island States on Climate Change and International Law (“COSIS”). The Tribunal unanimously held that it has jurisdiction to give the advisory opinion requested by COSIS and unanimously decided to respond to the request. The unanimous Advisory Opinion was delivered by Albert J. Hoffman, President.
COSIS’ Request: The phenomenon of climate change was the central issue to the COSIS’ Request. On 12-12-2022, the COSIS submitted a request to the Tribunal for an advisory opinion on the specific obligations of State Parties under United Nations Convention on the Law of the Sea (‘UNCLOS’), including under Part XII.
The Tribunal held 18 public sittings in September 2023 wherein it heard the oral statements from the Commission and State Parties including India*.
Tribunal’s Assessment on ITLOS’ Jurisdiction and Discretion: The Tribunal pointed out that its jurisdiction to render an advisory opinion is based on Article 21 of ITLOS’ Statute. It was further noted that COSIS Agreement confers jurisdiction on ITLOS to issue Advisory Opinions.
The Tribunal noted that Article 21 of the Statute lays down that the jurisdiction of the Tribunal extends to “all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal.” The Tribunal pointed out that the questions need not necessarily be limited to the interpretation or application of any specific provision of the COSIS Agreement. It is enough if the questions have a “sufficient connection” with the purpose of the COSIS Agreement.
Vis-a-vis ITLOS’ discretionary power in the instant matter, the Tribunal opined that the questions raised by COSIS are clear and specific enough for the Tribunal to give an advisory opinion. The Tribunal further found that the Request was compatible with its judicial functions, as it was called upon to clarify and provide guidance concerning the specific obligations of State Parties to the Convention by interpreting and applying the provisions of the Convention, in particular the provisions of Part XII, and other relevant rules of international law.
Questions and Replies by Tribunal: COSIS put forth its Request containing the following questions-
What are the specific obligations of State Parties under UNCLOS Convention, including under Part XII:
Question (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 warming and sea level rise, and ocean acidification, which are caused by anthropogenic greenhouse gas emissions into the atmosphere?
Replies:
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Anthropogenic GHG emissions into the atmosphere constitute pollution of the marine environment within the meaning of Article 1, paragraph 1, subparagraph 4, of UNCLOS.
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Under Article 194, paragraph 1, of the Convention, States Parties to the Convention have 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. The scope and content of necessary measures may vary in accordance with the means available to States Parties and their capabilities. The necessary measures include reduction of GHG emissions.
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The obligation under Article 194, paragraph 1, of the Convention is to take all necessary measures to prevent, reduce and control marine pollution from anthropogenic GHG emissions is one of due diligence. The standard of due diligence is stringent, given the high risks of serious and irreversible harm to the marine environment from such emissions. However, the implementation of the obligation of due diligence may vary according to States’ capabilities and available resources.
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Under Article 194, paragraph 2, of the Convention, States Parties have the specific obligation to take all measures necessary to ensure that anthropogenic GHG emissions under their jurisdiction or control do not cause damage by pollution to other States and their environment, and that pollution from such emissions under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights. This obligation applies to a transboundary setting and is a particular obligation in addition to the obligation under Article 194, paragraph 1. It is also an obligation of due diligence.
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Under Articles 207 and 212 of the Convention, States Parties have the specific obligation to adopt laws and regulations to prevent, reduce and control marine pollution from GHG emissions from land-based sources and from or through the atmosphere, respectively, considering internationally agreed rules, standards and recommended practices and procedures contained, inter alia, in climate change treaties. To this effect, States Parties have the specific obligations to take other necessary measures and, acting especially through competent international organizations or diplomatic conference, to endeavour to establish global and regional rules, standards and recommended practices and procedures.
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Under Article 211 of the Convention, States Parties have the specific obligation to adopt laws and regulations to prevent, reduce and control marine pollution from GHG emissions from vessels flying their flag or of their registry, which must at least have the same effect as that of generally accepted international rules and standards established through the competent international organization or general diplomatic conference.
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Under Articles 213 and 222 of the Convention, States Parties have the specific obligation to enforce their national laws and regulations and to adopt laws and regulations and take other measures necessary to implement applicable international rules and standards to prevent, reduce and control pollution of the marine environment from anthropogenic GHG emissions from land-based sources and from or through the atmosphere, respectively.
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Under Article 217 of the Convention, States Parties have the specific obligation to ensure compliance by vessels flying their flag or of their registry with applicable international rules and standards established through the competent international organization or general diplomatic conference and with their laws and regulations for the prevention, reduction and control of marine pollution from GHG emissions from vessels.
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Articles 197, 200 and 201, read together with articles 194 and 192 of the Convention, impose specific obligations on States Parties to cooperate, directly or through competent international organizations, continuously, meaningfully and in good faith, in order to prevent, reduce and control marine pollution from anthropogenic GHG emissions.
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Under Article 202 of the Convention, 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.
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Articles 204, 205 and 206 of the Convention impose specific obligations of monitoring, publishing the reports thereof and conducting environmental impact assessments to address marine pollution from anthropogenic GHG emissions.
Question (b) to protect and preserve the marine environment in relation to climate change impacts, including ocean warming and sea level rise, and ocean acidification?
Replies:
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The obligation under Article 192 of the Convention to protect and preserve the marine environment has a broad scope, encompassing any type of harm or threat to the marine environment. Under this provision, States Parties have the specific obligation to protect and preserve the marine environment from climate change impacts and ocean acidification. Article 192 of the Convention requires States Parties to anticipate risks relating to climate change impacts and ocean acidification, depending on the circumstances.
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There is an obligation of due diligence. The standard of due diligence is stringent, given the high risks of serious and irreversible harm to the marine environment from climate change impacts and ocean acidification.
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Under Article 194, paragraph 5, of the Convention, States Parties have the specific obligation to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life from climate change impacts and ocean acidification.
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Under Articles 61 and 119 of the Convention, States Parties have the specific obligations to take measures necessary to conserve the living marine resources threatened by climate change impacts and ocean acidification using the best available science and relevant environmental and economic factors. This obligation requires the application of the precautionary approach and an ecosystem approach.
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The obligation to seek to agree under Article 63, paragraph 1, and the obligation to cooperate under Article 64, paragraph 1, of the Convention, require States Parties, inter alia, to consult with one another in good faith with a view to adopting effective measures necessary to coordinate and ensure the conservation and development of shared stocks. Under Article 118 of the Convention, States Parties have the specific obligation to cooperate in taking measures necessary for the conservation of living marine resources in the high seas that are threatened by climate change impacts and ocean acidification.
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Under Article 196 of the Convention, States Parties have the specific obligation to take appropriate measures to prevent, reduce and control pollution from the introduction of non-indigenous species because of climate change and ocean acidification which may cause significant and harmful changes to the marine environment. This obligation requires the application of the precautionary approach.
[Request for Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law, Case No. 31, decided on 21-05-2024]
*Opinion delivered by Albert J. Hoffman, President
State Party of India was represented by: Luther M. Rangreji, Joint Secretary (L&T), Ministry of External Affairs
