Advisory Opinion by the Commission of Small Island States on Climate Change and International Law,2024 – An Overview

The International Tribunal for the Law of Seas (“ITLOS/Tribunal”) has recently given its advisory opinion on a request made by the Commission of Small Island States on Climate Change and International Law (“COSIS”). This opinion has clarified various concerns raised by COSIS regarding the interpretation of the term ‘marine pollution’ under Part XII of United Nations Convention on Law of Seas (“UNCLOS”). The mentioned part deals with the protection and preservation of the marine environment and the legal obligations of the state parties under UNCLOS in addressing the impacts of climate change caused by marine pollution. The opinion given by ITLOS further explores the preventive steps and measures which can be taken by the states for the prevention and protection of the marine environment.

To begin with, the UNCLOS is a comprehensive legal regime for world’s oceans and seas establishing rules governing all uses of the oceans and their resources[1]. The ITLOS has been established under UNCLOS’s mandate as a dispute resolution forum which specifically deals with:

• Interpretation and implementation of various provisions for the protection of marine resources and marine life under UNCLOS;
• Clarity regarding the convention’s provisions for national jurisdiction, Continental Shelf and Exclusive Economic Zones (“EEZs”).
• Promotion of scientific research and technological development for maritime sector by the member states as and when needed.

Analysis of the Opinion

In 2022, COSIS, comprising of six states from the Caribbean and the Pacific in collaboration with over 50 countries and organizations submitted their views to the ITLOS requesting a clarification though an advisory opinion on the following matters:

1. Emission of GHG Gases as pollution within the meaning of ‘Pollution of the marine environment’ under Article 1(1)(4) of UNCLOS which states that “the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities”[2]
2. The specific environmental obligations of the member states of UNCLOS regarding climate change and its impact on oceans, including but not limited to ocean warming, rise in sea levels and ocean acidification.

ITLOS after considering the requests made by COSIS made the following observations:

1. Jurisdiction of ITLOS: The jurisdiction of ITLOS and its discretion thereunder was established under Article 21 of ITLOS statute which states that “all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal”. The Tribunal pointed out that the issues raised need not be limited to the interpretation and application of specific COSIS agreement but a ‘sufficient connection’ is also enough to invoke its jurisdiction.
2. Emission of GHG Gases: The emission of GHG gases fall within the ambit of Article 1(1)(4) of The Tribunal found that these gases are ‘substance or energy’ which is ‘introduced by humans directly or indirectly into the marine environment’ and cause ‘multiple deleterious effects’ as these gases are released into the atmosphere causing indirect impact upon the marine resources. The Tribunal further stated that the same has been proved by science and is now widely accepted by all the member states.
3. Obligation of States:
   1. Under Article 192 read with Article 194(3) from Part XII of UNCLOS, the member states have an obligation to protect and preserve the marine resources and are also obligated to take steps towards prevention, reduction and control over all sources of pollution which might affect the marine environment in any way.
   2. ITLOS stressed upon the necessary measures which are to be determined objectively by taking into account all the relevant facts and opting for a case-by-case assessment in each state. It was further stated that the state must opt for world class scientific standards to determine and assess the situation as and when required.
   3. Furthermore, it was also observed that under Articles 211, 213, 222 of UNCLOS, the member states have a specific obligation to adapt laws and regulation to prevent, reduce and control marine pollution and in the instant case, marine pollution caused by the emission of GHG Gases. Furthermore, states also have an obligation to implement the internationally set rules and standards for the same.
   4. Under Article 202 of the UNNLOS, the developed states would assist the developing and vulnerable states in their efforts to address the issue of pollution caused by GHG emissions.
   5. Under Articles 204, 205 and 206 of the UNCLOS, each state is further accountable to publish Environmental Impact Assessment (“EIA”) Reports to address the GHG emissions and their impact on the marine resources.
   6. Finally, the Tribunal found that the member states should not confine themselves to the limited international conventions such as the Paris Agreement and should go beyond such conventions and take an initiative in furtherance of a sustainable future.

Conclusion

ITLOS’s opinion reiterated the concept of state liability which is an accepted aspect in multiple UN treaties and conventions. From this recent opinion, the stance can be clearly pointed out in the following points as listed below:

1. Stricter Legal Obligations on States: The opinion summarized the strictness of obligations on all member states to implement laws and regulations under UNCLOS and for that matter, other international environmental treaties to match the international standards set thereunder.
2. Impact on the Domestic Laws: Due to this opinion, the member states are further liable to bring their domestic laws in consonance with the opinion and internationally accepted standards to reduce the GHG Emissions by opting for more sustainable forms of energy.
3. Step towards Sustainable Development: This opinion clearly paves the path for a sustainable future for the upcoming generations and opting for sustainable means of energy.

The ITLOS Advisory Opinion marks a precedent for the interpretation and implementation of various legal obligations by the member states in order to prevent and protect the marine environment in all means possible.