A team of 21 judges is going to figure it out.
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Last month, in Hamburg, Germany, a little-known court held an unprecedented two-week hearing. Representatives of countries around the world, from tiny island nations to big wealthy states, gathered in a distinctly wave-shaped building overlooking the Elbe river in search of answers.
“We are here today because over a century and a half of anthropogenic greenhouse gas emissions have polluted our precious oceans and devastated the marine environment,” said Gaston Browne, prime minister of Antigua and Barbuda, setting the scene at the opening of the hearing before the International Tribunal for the Law of the Sea (ITLOS), a panel of 21 judges representing countries across the world. “Those emissions have fundamentally changed Earth’s climate and pose an existential threat to vulnerable communities worldwide,” he said.
Browne was speaking not only for his own country but also on behalf of eight others — Tuvalu, Palau, Niue, Vanuatu, Saint Lucia, Saint Vincent and the Grenadines, Saint Kitts and Nevis, and The Bahamas. In recent years, these countries joined forces to form the Commission of Small Island States on Climate Change and International Law (COSIS). And now they were pressing the court to answer a crucial legal question.
ITLOS is responsible for interpreting and upholding the 1982 United Nations Convention on the Law of the Sea (UNCLOS), an international treaty representing 169 countries. The island nations want the court to decide what legal duties UNCLOS imposes on signatory states to protect the marine environment from the impacts of climate change.
Photo credit: Ian Jones / Wikimedia
After a spring and summer of record-high ocean temperatures, Browne told the tribunal, it is “no exaggeration to speak of existential threats when some of these nations may vanish in the foreseeable future because of rising sea levels.”
Margaretha Wewerinke-Singh, a representative of the COSIS legal experts committee, says they are hoping the court will issue legal guidance, in the form of an advisory opinion, that will clarify “once and for all” that greenhouse gas emissions constitute pollution of the marine environment “and then show with a high level of specificity what states are supposed to do to prevent this pollution.”
The tribunal is one of three international legal institutions that have recently been tasked with providing an advisory opinion on climate change. Chile and Colombia asked the Inter-American Court of Human Rights to interpret what obligations nations have to respond to human rights issues, such as migration, that are caused or exacerbated by the climate emergency. And in March, the United Nations General Assembly approved a resolution calling on the UN-affiliated International Court of Justice to clarify a similar issue.
Of these, ITLOS is expected to be the first to respond publicly, likely by next spring.
In their argument to the court, COSIS’s legal team was keen to focus on the science. This was a strategic choice, says Wewerinke-Singh. “This is something that ITLOS does really well. The judges, if you compare them to judges on other courts and tribunals, are really quite capable of grappling with complex scientific evidence.”
Sarah Cooley, director of climate science at Ocean Conservancy and a lead chapter author of a recent Intergovernmental Panel on Climate Change (IPCC) report, spoke as an expert witness for COSIS. At the hearing, she outlined how the already increasing temperature and acidity of the ocean will continue to have “vast and drastic” consequences for the marine environment, including sea level rise, ocean acidification, shifting currents, ecosystem changes, and the increased likelihood and severity of marine heatwaves.
In line with the IPCC’s report, Cooley added that global temperature rise must be kept under a 1.5 C threshold by urgently cutting greenhouse gas emissions, particularly those from fossil fuels.
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In her presentation to the tribunal, Shobha Maharaj, an environmental biologist, science director of the Hawai‘i-based reforestation company Terraformation, and also a lead chapter author of a recent IPCC report, emphasized how residents of small islands are particularly vulnerable because their homes and infrastructure are often near the coast, making them susceptible to sea level rise, storm surges, flooding, and other extreme weather. They’re also often tightly reliant on the local marine and terrestrial ecosystems for many of their needs. “As such, negative impacts on island ecosystems can often quickly and adversely impact the people who live on these islands,” Maharaj said.
In their written and oral statements to the tribunal, most countries accepted that greenhouse gases are a form of pollution that states are required to prevent, reduce, and control. But they disagreed on how exactly countries should have to respond to the threat.
Wealthy countries, such as the United Kingdom and Australia, as well as those in the European Union, contended that climate change is already being dealt with at an international level through the United Nations Framework Convention on Climate Change, under which the landmark Paris Agreement was signed in 2015.
But small island nations are not convinced. Browne told the tribunal they’ve been raising their concerns in that arena for decades to little avail. “Year after year, we listened as promises to mitigate climate change were made, and year after year, we watched as those promises went unfulfilled,” he said.
If and when ITLOS issues its opinion laying out the legal requirements of states to respond to climate change, the decision will not be legally binding. Nor will it relate to every country in the world. UNCLOS is an opt-in international agreement, and some countries — notably the United States — have not signed on. Regardless, experts say the tribunal’s decision is likely to affect the opinions of other courts, such as the International Court of Justice.
Not complying with the court’s decision, adds Monica Feria-Tinta, a barrister specializing in public international law, would expose states to potential lawsuits. Feria-Tinta helped the nonprofit World Wide Fund for Nature draft a written submission to the tribunal that argued a healthy marine environment is important in and of itself — not just for its services to humans. “[The opinion is] going to be extremely influential,” she says.
In its 41-year history, ITLOS has only ever produced two advisory opinions: one on deep-sea mining and the other on high-seas fisheries. So experts say it’s difficult to know how the court will approach the much broader and more complex matter of climate change.
Armando Rocha, an expert in the law of the sea and climate change law at the Catholic University of Portugal, believes ITLOS will be under pressure to leave states a large margin of discretion in how they reduce their greenhouse gas emissions.
But Rome wasn’t built in a day. “If we are expecting too much out of this advisory opinion, it will be a failure,” says Rocha. But if we realize that current international law on climate change is underdeveloped, “then these small steps … can be very meaningful.”
This story by Isabella Kaminski was originally published by Hakai Magazine and is part of Covering Climate Now, a global journalism collaboration strengthening coverage of the climate story.
