The advisory request by the commission was sought broadly on two points regarding the specific obligation of state parties under the United Nations Convention on the Law of the Sea (UNCLOS). First, whether state parties have a specific obligation to prevent, reduce and control pollution of the marine environment caused by events like climate change, ocean acidification, etc, that are induced by anthropogenic greenhouse gas (GHG) emissions in the atmosphere?
And secondly, whether state parties have an obligation to protect and preserve the marine environment in the context of climate change impacts, including sea-level rise, ocean warming and ocean acidification?
The tribunal answered both points in the affirmative by deriving its jurisdiction on the issues within the UNCLOS. The tribunal broadly relied on Article 194, which enumerates state parties’ obligations to prevent, reduce and control pollution of the marine environment. In its elaborate ruling, the tribunal laid down certain important legal aspects that will dictate future policy actions.
Anthropogenic GHG emissions as pollution under UNCLOS: Interpreting anthropogenic GHG emissions as pollution under ‘pollution of the marine environment’ (Article 1, para 1, subpart 4 of the UNCLOS) was the precondition for ascertaining state parties’ obligations. The definition of ‘pollution of the marine environment’ uses the phrase “…introduction by man, directly or indirectly of substances or energy” without specifying the nature of such an introduction.
Often, marine environment pollution refers to pollutants carried by water. The tribunal elaborated that the word “substance” refers to a particular kind of matter with uniform properties. A gas qualifies as a substance with uniform properties (as distinct from liquid and solid matter). The word “energy” was also understood to include thermal energy or heat within its fold.
The International Law Commission’s commentary on the definition of “atmospheric pollution” corroborated the interpretation of gas as a source of marine pollution. The tribunal also cited scientific evidence (mostly from the IPCC) of the solubility of GHG gases like CO2 in the planet’s oceans to substantiate the “introduction” element of the definition.
The second aspect was interpreting “anthropogenic emissions” to ascertain the liability of state parties. The IPCC defines “anthropogenic emission” as a GHG emission caused by human activities. Thus, the essentiality of Article 1 para 1 subpara 1 of the UNCLOS was fulfilled. The other important determinant by the tribunal was with respect to the nature and extent of the liability of state parties.
Extent of the specific obligations of states: Prima facie, states have the sovereign right to exploit their natural resources in line with their environmental policies under Principle 21 of the Stockholm Declaration. This right is also acknowledged in the UNCLOS under Article 193. Article 194 enumerates “Measures to prevent, reduce and control pollution of the marine environment” for state parties and was not disputed by any parties involved in the proceedings.
The tribunal underlined that the obligation of state parties to prevent, reduce and control marine environment pollution is not restricted to just cessation of the source of pollution. This means that states would have to make efforts to also restrict the deleterious effects of existing anthropogenic GHG emissions on the marine environment. Thus, it is a continuous obligation that is based on the stringent principle of due diligence.
The UNCLOS necessitates parties to take “necessary” actions to curb pollution. The tribunal laid down three parameters to determine whether state actions would qualify as “necessary” under Article 194: scientific pieces of evidence, international rules and standards relating to climate change and the available means and capabilities of states.
The last parameter implies that Least Developed Countries and developing countries would have limited capacity to take satisfactory actions to curb marine pollution. Thus, the tribunal also employed Article 202 of the UNCLOS to ask state parties to provide assistance (including financial aid) to developing countries.
The tribunal advisory opinion also advances the interrelation between the international law of the sea under the UNCLOS and the state obligations under the Paris Agreement. The tribunal acknowledged that the UNFCCC and Paris Agreement are lex specialis and thus conformity with their mandate would meet the obligation under Article 194.
Thus, the above principles laid down by the tribunal hold persuasive value, serving as a guide for determining the obligations of states across various forms of climate impact.
Widening the horizon: The international tribunal ruling closely follows the recent ruling by the European Court of Human Rights, wherein the court held Switzerland liable for not taking effective measures against climate change, thus violating the human rights of the complainants.
Advances in environmental law jurisprudence will encourage further climate litigation across the globe. With this ruling, we can expect that state parties will deploy the UNCLOS to hold other nations liable for any breach of climate obligations or if they find themselves to be victims of the adverse effects of climate change caused by the anthropogenic emissions of other countries.
The author is a Research Fellow in the Climate and Ecosystem Team at Vidhi Centre for Legal Policy.
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Published: 24 May 2024, 11:00 AM IST
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