Historic Opinion of the International Tribunal of the Law of the Sea clarifies State obligations at the ocean-climate nexus
The International Tribunal on the Law of the Sea (ITLOS) delivered its much-awaited Advisory Opinion requested to clarify States’ obligations to protect the marine environment from climate change. This blog post collects relevant extracts from the first report of the UN Special Rapporteur on Climate Change and Human Rights, Hub Director Elisa Morgera, which reflects on the historic importance of the Opinion.
“ITLOS clarified that greenhouse gas emissions and ocean acidification are forms of marine pollution, therefore States have strict due diligence obligations under the law of the sea that are additional to those contained in the Paris Agreement, to take all necessary measures to prevent future or potential pollution from these emissions, as well as reduce and control existing pollution from these emissions from any source (land-based, vessels and aircraft), both through individual action and participation in global efforts to address climate change. The Tribunal clarified that States have strict due diligence mitigation obligations also in the context of the conservation of marine biodiversity and ecosystem restoration, which promote the resilience of living marine resources while enhancing carbon sequestration.”
“ITLOS clarified stringent due diligence obligations for States to establish the national and international legal frameworks, as well as administrative procedures and enforcement mechanisms, and to exercise adequate vigilance to make such a system function efficiently, with a view to preventing, reducing and controlling climate change, according to States’ capabilities and available resources. ITLOS also pointed to more stringent standards in relation to preventing transboundary harm. Vigilance includes monitoring and inspection, administrative guidance, investigation and prosecution for breaches of laws, and judicial or quasi-judicial proceedings, including prompt and adequate compensation or other relief in respect of damage caused by marine pollution by natural or legal persons under States’ jurisdiction. Due diligence also extends to international cooperation in various international organisations, including those without a specific law of the sea mandate.”
“ITLOS noted that climate change “raises human rights concerns”, with two judges separately confirming that international human rights obligations are applicable to the protection of the marine environment from climate change, including the obligation to prevent disproportionate impacts on those in vulnerable situations, particularly in Small Island Developing States (Declarations of judges Infante Caffi and Pawlak).” In that connection, Morgera underscores that “all the obligations outlined by ITLOS are crucial to protect human rights, and in turn should be interpreted in accordance with relevant international human rights obligations. This is the case, for instance, of States’ obligation to undertake environmental and socio-economic impact assessment for any planned activity that may contribute to climate change, in accordance with the precautionary and ecosystem approaches (Advisory Opinion No 31). This obligation also applies to international cooperation, including under the 2023 UN Agreement on Biodiversity of Areas Beyond National Jurisdiction (BBNJ Agreement), which provides for the creation of marine protected areas, environmental impact assessments and strategic environmental assessments, as well as capacity-building, technological and scientific cooperation with developing countries, while considering the importance of conserving the carbon cycling services of ocean ecosystems.”
“ITLOS indicated that marine geoengineering is contrary to the UN Convention on the Law of the Sea when it has the consequence of transforming one type of pollution into another and is incompatible with the obligation to take all measures necessary to prevent, reduce and control marine pollution resulting from the use of technologies under States’ jurisdiction or control.” Morgera highlights that geoengineering is also incompatible with States’ obligations related to the protection of marine biodiversity for the purposes of climate change mitigation and adaptation, clarified elsewhere in the Advisory Opinion.
“ITLOS further clarified that the following State obligations under the law of the sea are applicable to adaptation: to implement measures to protect and preserve the marine environment in relation to climate change impacts and ocean acidification, including resilience and adaptation actions; 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; and to take into account, in conservation measures, the impacts of climate change and ocean acidification, including shifts in fish distribution and decreases in fisheries that affect the “income, livelihoods, and food security of marine resource-dependent communities”, as well as impacts on marine ecosystems which will put “key cultural dimensions of lives and livelihoods at risk”. Morgera indicated that the “references to lives, food, livelihoods and culture in the Advisory Opinion should be interpreted in the light of the clarifications from international human rights experts outlined in the following section.”
Finally, ITLOS underscored the legally binding nature of State obligations under the law of the sea to assist developing States, in particular vulnerable developing States, in their efforts to prevent, reduce and control climate change as a form of marine pollution, also from a finance perspective.
The full report can be found here >>
The video-recording of the presentation of the report to the Human Rights Council on 2nd July can be found here >>
A podcast (in Spanish) on the importance of the ITLOS Advisory Opinion can be found here >>
The One Ocean Hub’s submission to ITLOS.
Image: Rilson S. Avelar
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