Reflecting on the range of views submitted to the International Tribunal on the Law of the Sea on Climate Change
After 30 years of science on the ocean-climate nexus, 2023 is to be remembered as the year when the international community has scaled up climate change action to the level of international courts and tribunals. Three requests for an Advisory Opinion have been submitted to the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice and the Inter-American Court of Human Rights. In addition, three climate-focused applications are now jointly pending before the Grand Chamber of the European Court of Human Rights.
As part of our ongoing work on the ocean-climate nexus and human rights, this blog post will reflect on the complementarity of the points made in the One Ocean Hub’s submission to the ITLOS with the arguments made in some of the 51 written statements submitted by States and non-State actors to the Tribunal. While you can read a summary of the main points in our submission in our blog post, here we will focus on which other submissions have addressed the need to interpret international law on the law of the sea and on climate change in ways that ensure the protection of the marine environment from the negative impacts of climate change through a mutually supportive interpretation with international biodiversity law and international human rights law.
Background: The Request for an Advisory Opinion from the ITLOS
The background information to the Request for an Advisory Opinion from the ITLOS was provided in our last blog post. Upon the filing of the Request to the ITLOS Registry by the Commission of Small Islands States on Climate Change and International Law (COSIS) on 12 December 2022, the Tribunal invited States Parties to the United Nations Convention on the Law of the Sea (UNCLOS, or Convention) and a number of intergovernmental organisations to present written statements by 16 June 2023.
On this occasion, an unprecedented 52 written submissions were received by the ITLOS (in comparison, 31 and 17 statements were submitted in the context of the two other requests for an advisory opinion from the ITLOS in 2015 and 2011). Out of these, 33 are by States Parties to the Convention (including the European Union), while the remaining 19 are by a diverse range of non-State actors, including UN bodies (e.g., the United Nations Environmental Programme, the Food and Agriculture Organisation of the United Nations, and the International Maritime Organisation), intergovernmental organisations (e.g., COSIS, the International Union for the Conservation of Nature, the African Union) and civil society actors (e.g., Client Earth, High Seas Alliance, WWF, Center for International Environmental Law (CIEL) jointly with Greenpeace International). The full list of submissions is available here.
The striking number of 19 submissions by non-State actors (compared to respectively 8 and 5 in the previous requests) marks an extraordinary rise in public interest and participation in international judicial proceedings under the UNCLOS, traditionally seen as an inter-State regime. This confirms the growing attention devoted to the advisory function of international courts and tribunals, increasingly seen as a gateway for the protection of public interests and, consequently, as a participatory justice mechanism. In this regard, the One Ocean Hub stands out as the first and only representative of the academic research sector having submitted a written statement in the context of a Request for an Advisory Opinion in the nearly 3 decade-long history of the Tribunal.
The Tribunal has not ordered a second round of written submissions. This contrasts with its previous practice in the Fisheries Advisory Opinion (2015) and arguably narrows the space for public participation. The ITLOS has set on 11 September 2023 the date for the opening of the public hearing, where States Parties to UNCLOS, COSIS and a limited number of intergovernmental organisations may make oral statements. The latter category includes, amongst others, the African Union and the Pacific Community. The schedule of the hearings is available here and it is interesting to note that States Parties which did not submit a written statement are participating in the oral proceedings and vice versa. Moreover, the International Seabed Authority will not participate in the oral proceedings, despite submitting a written statement.
UNCLOS cannot be interpreted and applied in isolation
While UNCLOS does not contain any reference to or obligation on climate change, several of its obligations are relevant at the ocean-climate nexus. Virtually all submissions by both States Parties and non-State actors referred to obligations under UNCLOS to:
a. protect and preserve the marine environment (Article 192),
b. take appropriate measures to prevent, reduce and control pollution from any source (Article 194),
c. cooperate on a global and regional basis (Article 197),
d. conduct environmental impact assessments (EIAs; Article 206), and
e. adopt laws and regulations to prevent, reduce and control pollution from land-based sources and from or through the atmosphere (Articles 207 and 212).
Amongst the submissions, there is a wide consensus over the fact that UNCLOS is part of the broader system of international law, thus requiring it to be interpreted and applied in such a way as to be consistent with other treaties and rules existing within such a system, in line with Article 31(3)(c) of the Vienna Convention on the Law of Treaties, the so-called principle of “systemic integration”). This argument finds confirmation also in UNCLOS Article 293(1), which provides that the Tribunal “shall apply this Convention and other rules of international law not incompatible with this Convention” (emphasis added). It is also confirmed by UNCLOS Article 237 concerning the obligations under other conventions on the protection and preservation of the marine environment.
Lastly, the provisions in UNCLOS Part XII on the protection of the marine environment include numerous rules of reference to generally accepted international rules and standards laid down in other international instruments. This is a legal technique allowing for the incorporation of external rules and standards into a framework convention such as UNCLOS, with a view to informing and reinforcing its content. Accordingly, such provisions favour an “evolutionary” and “mutually supportive” interpretation of UNCLOS, that is, its interpretation and application in a manner consistent with the emerging challenges and new developments in the broader international law system, including obligations undertaken by States within other international law-making processes.
In this respect, numerous submissions consider the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement as the two most relevant treaties in the context of the pending Request. These two instruments are widely expected to inform the interpretation and application of UNCLOS obligations on the prevention and control of marine pollution, as well as of the general UNCLOS obligation to protect and preserve the marine environment (including from the adverse effects of climate change). Accordingly, most of the submissions call for the Tribunal to interpret the meaning of marine pollution so as to include also anthropogenic greenhouse gas emissions, and some of them specifically recall States’ commitments in the Paris Agreement, e.g., the progressive reduction of such emissions (Article 4).
That said, the Paris Agreement is largely silent on the specific minimum conduct required by States, leaving a wide degree of discretion to Nationally Determined Contributions. In addition, many States and climate experts are not clear about its relevance and applicability to the ocean, whether within or beyond national jurisdiction (see a deeper discussion here).
For these reasons, some of the States and non-State actors also included reference to general principles of international environmental law amongst the rules qualifying States obligations under UNCLOS on the protection and preservation of the marine environment. By way of example, the United Nations Environment Programme (UNEP) points out that the precautionary approach “may be particularly relevant in the context of climate change, where there may be different degrees of scientific certainty […] as to whether a particular harm will eventualise”.
Some submissions by States such as the UK – make an express call to use precaution in the context of the adoption of potentially risky geoengineering technologies for the reduction of carbon dioxide concentration in the sea (e.g. the so-called “carbon dioxide reduction” technique). The employment of this technique is subject to a degree of uncertainty as to its long-term impacts on marine ecosystems. In this connection, the Hub submission recalled that State parties to the Convention on Biological Diversity (CBD) have already recognised that some climate change response measures, and geo-engineering in particular, can undermine biodiversity conservation (see fuller discussion here).
The submission by CIEL and Greenpeace underscored that “Many of these speculative technologies—such as large-scale carbon dioxide removal and marine geoengineering—also pose new environmental and social risks. […] Reliance on future deployment of such technologies, therefore, would not only delay needed climate action now, but potentially violate States’ duties under UNCLOS.” The CIEL/Greenpeace submission thus rather emphasises that the precautionary principle under UNCLOS should be interpreted as “requiring States to prioritise measures known to be effective at averting continued temperature rise […] including the phase-out of fossil fuels, transition to available renewable energy sources, and increased energy efficiency.”
Several written submissions referred to the CBD, including the European Union, arguing that the provisions of the CBD inform the scope and content of the due diligence obligation to protect the marine environment under UNCLOS. The High Seas Alliance emphasises the duty of cooperation in respect of areas beyond national jurisdictions, and the relevance of CBD, including Target 3 of the Kunming-Montreal Global Biodiversity Framework (GBF) as generally accepted rules and standards within the meaning of UNCLOS Article 197 (see our earlier blog on the GBF here). In this respect, the Hub’s submission underscores the relevance of States’ international obligations under the CBD, to address climate change as a driver of biodiversity loss on the basis of the ecosystem approach and precaution and the integrated consideration of social, environmental and economic impacts. Due to the high numbers of submissions referring to the CBD, Hub researchers are working on a detailed research paper on this aspect.
The BBNJ Agreement offers important indications of the progressive development of the law of the sea with respect to climate change
Several submissions refer to the June 2023 Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ Agreement). While the Agreement is set to provide protection for the vast majority of the ocean, namely the high seas and the deep seabed, some of its provisions can provide indications of the progressive development of the international law on the protection of the marine environment. Several of the submissions underscore the explicit link to climate change contained in the Agreement’s preamble, its general objective to build marine ecosystems resilience, and how this is given effect in the section on Marine Protected Areas (IUCN and the High Seas Alliance). Hub research has underscored that State’s obligations to mitigate and adapt to the effects of climate change are not exclusive to waters under a State’s jurisdiction, and do indeed apply to areas beyond national jurisdiction (see an in-depth analysis on this point here).
The EU and IUCN submissions refers to the BBNJ Agreement section on EIAs as operationalising the obligation under UNCLOS Article 206, though limited to areas beyond national jurisdiction. They also highlighted the importance that SEAs will have in evaluating the cumulative impacts of broader policies and plans. The relevance of SEAs was central to the Hub’s submission (see also deeper discussion here) to advance ocean-climate science and ensure a proactive approach to the protection of the marine environment that can also cover broader considerations of human rights in respect of coastal communities, including women, children, small-scale fishers, Indigenous People and local knowledge holders. Alike the number of submissions which refer to the CBD, the Hub intends to undertake deeper analysis in this context.
Human rights treaties and rules inform the interpretation and application of UNCLOS obligations
Finally, human rights were specifically addressed by some of the submissions, specifically underscoring their role as interpretative tool to substantiate State obligations under UNCLOS regarding climate change. Notably, the joint submission by three UN Special Rapporteurs (Human Rights and Environment, Human Rights and Climate Change, Toxics and Human Rights) emphasises the adverse impact of climate change-induced marine biodiversity loss on a set of human rights such as the right to life, the right to self-determination, the right to a healthy environment, the right to home, privacy and family life, the right to food, the right to livelihood, including to customary fishing practices, and the cultural rights of minorities and Indigenous Peoples. In particular, the joint submission highlights how the relevance of these human rights translates into the following obligations for States to:
- rapidly reduce greenhouse gas emissions consistently with their obligations under both international human rights law and environmental law,
- implement rules, standards and practices to ensure the full enjoyment of human rights, by communities and individuals affected by climate change, and
- apply the precautionary principle to activities that might result in the pollution of the marine environment.
Other NGOs that collaborate with the Hub on the international recognition of the human right to a healthy environment and the protection of children’s human rights, pointed out that UNCLOS obligations regarding the protection of the marine environment need to be interpreted not only in light of States’ duties and commitments under the international climate change regime, but also taking into account international human rights law. They highlight the following entry points for human rights laid down in certain UNCLOS provisions:
a. the very definition of pollution in Article 1(1)(4), referring to human health;
b. the reference to the “nutritional needs of the population” of land-locked and geographically disadvantaged States (Articles 69-70);
c. the general objective to realise “a just and equitable international economic order which takes into account the interests and needs of mankind as a whole” (preamble).
Lastly, some States underscore the relevance of human rights as tool for the harmonious interpretation of States’ obligations regarding climate change adaptation and mitigation. Nauru argues that common Article 1 to the International Covenant on Civil and Political Rights and to the International Covenant on Economic, Social and Cultural Rights – affirming the right to self-determination – informs the scope of the general obligation to protect and preserve the marine environment under UNCLOS Article 192. Consequently, such an obligation should be interpreted and applied in such a way as to ensure that a people is not deprived of its own means of subsistence. This relates directly to the Hub’s work on the human rights of fishers (especially small-scale fishers) in the context of a changing ocean.
Micronesia argue that failing to regulate anthropogenic greenhouse gas emissions to avoid harmful effects on the marine environment, also constitutes a violation of the right to a healthy environment, and/or the right to life, the right to adequate food, to water, to an adequate standard of living, to health, to cultural practices and traditions, to productively enjoy property and to self-determination. Such violations give rise to full reparation. The Hub submission underscored that guidance adopted under the CBD has often implicitly addressed human rights concerns at the ocean-climate nexus, and has been recognised by international human rights bodies as interpretative materials for State’s obligations under other international treaties.
Finally, the CIEL/Greenpeace submission refers to the need to protect future generations, and the Oxfam submission referred to children’s human right to health and to development. These submissions complement the contribution made in the One Ocean Hub’s submission on children’s human rights (see also here and here), notably indicating that children’s human rights provide important considerations for the application of the precautionary principle: children’s human rights to life, survival, health and food call attention to immediate concerns, whereas children’s right to development can serve as a basis to assess the long-term effects of marine pollution on children’s life and wellbeing at later stages of their lives.