Source: The Hindu

Introduction

On 21^st May 2024, a significant milestone was reached in international climate change litigation. The International Tribunal for the Law of the Sea (ITLOS) delivered an advisory opinion sought by the Commission of Small Island States on Climate Change and International Law (COSIS). The opinion aimed to clarify the specific obligations of parties to the United Nations Convention on the Law of the Sea (UNCLOS) regarding climate change mitigation. COSIS represents the interests of small island states facing the dire consequences of climate change, such as rising sea levels and ocean acidification.

What are the International Legal Frameworks: UNCLOS, ITLOS, and COSIS?

• UNCLOS:
  • The United Nations Convention on the Law of the Sea (UNCLOS) is an international treaty that governs the use of the world's oceans.
  • It establishes the legal framework for various activities at sea, including navigation, fishing, conservation, and scientific research. UNCLOS also defines the rights and responsibilities of states in maritime zones, such as territorial waters, exclusive economic zones, and the high seas.
  • Adopted in 1982, UNCLOS is considered the "constitution for the oceans" and has been ratified by most of the world's nations.
  • It serves as the primary instrument for regulating ocean affairs and promoting cooperation among states in managing marine resources and protecting the marine environment.
• ITLOS:
  • The International Tribunal for the Law of the Sea (ITLOS) is an international judicial body established by the United Nations Convention on the Law of the Sea (UNCLOS). ITLOS is tasked with adjudicating disputes related to the interpretation and application of UNCLOS.
  • It provides a forum for resolving maritime disputes between states and issues advisory opinions on legal questions concerning the law of the sea.
  • ITLOS plays a crucial role in upholding international maritime law and promoting peaceful resolution of ocean-related disputes among nations.
• COSIS:
  • The Commission of Small Island States on Climate Change and International Law is a collaborative effort among small island nations to address the legal dimensions of climate change.
  • COSIS is set up in 2021.
  • It aims to strengthen legal frameworks, advocate for their interests in international forums, and foster cooperation to mitigate the impacts of climate change on vulnerable island communities.
  • Through research, policy development, and advocacy, the commission seeks to enhance resilience and ensure the equitable treatment of small island states in climate-related matters.

What are Obligations under UNCLOS?

• At the core of the ITLOS advisory opinion is the clarification of the obligations of parties to UNCLOS concerning anthropogenic greenhouse gas (GHG) emissions.
• The opinion emphasized that parties have a duty under Article 194(1) of UNCLOS to take all necessary measures to prevent, reduce, and control marine pollution resulting from such emissions.
• This ruling removed doubts regarding the classification of carbon dioxide as a pollutant under UNCLOS and underscored the significant role of human-induced CO2 emissions in contributing to ocean acidification and warming.

What are the Implications of Climate Crisis Regulation?

• The traditional principles of international law that govern state behavior in preventing transboundary harm encounter limitations when applied to the complex and global nature of the climate crisis.
• One such limitation is the bilateral framing of obligations, which may not adequately address collective interests.
• Moreover, challenges related to attribution and standing can complicate efforts to establish a breach of obligations related to climate change.
• The ITLOS opinion represents a departure from this traditional approach by prioritizing collective interests over bilateral concerns.
• It aligns obligations with the best available scientific evidence and international agreements, such as the Paris Climate Change Agreement.
• Importantly, the opinion emphasizes the need for parties to strive for the more ambitious goal of limiting global temperature rise to 1.5°C, rather than the previously agreed-upon 2°C target.

What Specific Actions Does the ITLOS Opinion Mandate for Parties Under Article 194(1) of UNCLOS?

• While the ITLOS opinion identifies general obligations under Article 194(1) of UNCLOS, it does not prescribe specific measures that parties must take to fulfill these obligations.
• It underscores that states do not have unfettered discretion in addressing climate change.
• The opinion suggests that gradual reduction of GHG emissions over time could be sufficient to meet these obligations.
• However, it leaves room for interpretation and debate regarding the specific actions that parties must undertake.

What are the Challenges in Determining Mitigation Action?

• The significance of the ITLOS opinion lies in establishing a mitigation obligation and in defining its content.
• One of the key challenges is determining the appropriate level of mitigation action that states must undertake.
• Drawing on the precedent set by cases such as Urgenda Foundation v. The Netherlands, which mandated specific emissions reduction targets, the opinion highlights the importance of setting concrete and ambitious goals based on scientific evidence and international agreements.
• However, the ITLOS opinion falls short in providing a clear methodology for assessing states' mitigation actions.
• This lack of clarity leaves room for debate regarding equitable distribution of mitigation responsibilities and the availability of resources.
• Additionally, the opinion acknowledges that the obligation to take necessary measures is subject to the means available to states and their capabilities, underscoring the importance of considering principles of equity in climate change mitigation efforts.

What are the Legal Implications and Analysis?

• The ITLOS advisory opinion carries significant legal implications for international climate change law. By clarifying the obligations of parties to UNCLOS regarding GHG emissions, the opinion provides a foundation for future legal action and policy development in addressing the climate crisis.
• The recognition of carbon dioxide as a pollutant under UNCLOS expands the scope of legal mechanisms available for regulating GHG emissions at the international level.
• Moreover, the opinion reinforces the principle of collective responsibility in combating climate change, emphasizing the need for coordinated action among states to mitigate its impacts.
• This principle aligns with the overarching goals of international climate agreements, such as the Paris Agreement, which seeks to mobilize global efforts to limit global temperature rise and protect vulnerable ecosystems.
  • However, the general nature of the obligations identified in the ITLOS opinion raises questions about the enforceability and effectiveness of international climate law.
• While states are obligated to take all necessary measures to reduce GHG emissions, the lack of specific guidance on how to achieve this goal leaves room for interpretation and implementation challenges.
• The principle of equity, which factors into the assessment of states' mitigation actions, introduces complexities in determining a fair distribution of responsibilities among nations with varying levels of resources and capabilities.

What are Political and Policy Implications?

• Beyond its legal significance, the ITLOS advisory opinion has important political and policy implications for global climate governance.
• As an authoritative interpretation of international law, the opinion carries considerable weight in shaping the discourse and actions of states and international organizations on climate change.
• It provides a framework for holding states accountable for their contributions to climate change and for guiding the development of policies and measures to mitigate its impacts.
• Moreover, the emphasis on the 1.5°C temperature goal in the ITLOS opinion reflects the growing recognition of the urgency of addressing climate change and the need for more ambitious action to avoid catastrophic consequences.
• This recognition is particularly relevant for vulnerable communities, such as small island states, which are disproportionately affected by the adverse effects of climate change, including sea-level rise, extreme weather events, and loss of biodiversity.
• At the same time, the ITLOS opinion highlights the challenges of translating legal obligations into concrete actions and outcomes.
• While states may be legally obligated to reduce GHG emissions, achieving this goal requires overcoming various political, economic, and social barriers.
• This includes mobilizing financial resources, fostering international cooperation and collaboration, and implementing innovative technologies and policies to transition to a low-carbon and climate-resilient future.

Conclusion

The ITLOS advisory opinion is a big step in climate law, explaining what countries must do about greenhouse gases and ocean pollution. But it shows we still need stronger global climate rules. We must make sure everyone follows the rules, be clear about what we're doing, and make sure people stick to it. Dealing with climate change is tough, but this opinion reminds us that all countries must work together to protect the Earth.