A group of small island states, including Antigua and Barbuda and the Bahamas, secured a significant win on climate change in an international court on Tuesday as they seek to combat rising sea levels. In its first-ever climate-related judgment, The International Tribunal for the Law of the Sea (ITLOS) declared that greenhouse gas emissions absorbed by the ocean are considered marine pollution. Consequently, countries are obliged to protect marine environments by going further than required under the Paris climate agreement.
A Landmark Decision
The opinion was requested by a coalition of nine island nations facing climate-driven rises in sea levels. Although the opinion is not legally binding, it will help guide countries in their climate policy and can be used in other cases as legal precedent. “The ITLOS opinion will inform our future legal and diplomatic work in putting an end to inaction that has brought us to the brink of an irreversible disaster,” said Antigua and Barbuda’s Prime Minister Gaston Browne.
The other nations in the group that brought the case were Tuvalu, Palau, Niue, Vanuatu, St. Lucia, St. Vincent and Grenadines, and St. Kitts and Nevis. The court stated that states are legally obligated to take all necessary measures to achieve the goal of keeping global warming to 1.5 degrees Celsius above pre-industrial levels according to the UN Convention on the Law of the Seas.
Global Implications
During the case hearings in September, China, the world’s biggest carbon polluter, challenged the islands’ request, arguing that the tribunal does not have general authority to issue advisory opinions. Beijing stated its position was taken to avoid the fragmentation of international law. “If ITLOS were to find that such an obligation exists, Beijing’s response would most likely be to characterize this as falling outside of its proper scope of authority,” said Ryan Martinez Mitchell, law professor at the Chinese University of Hong Kong.
Eselealofa Apinelu, a representative of the South Pacific island of Tuvalu, emphasized that the advisory opinion spells out the legally binding obligations of all states to protect the marine environment against existential threats posed by climate change. “This is a historic moment for small island developing nations in their request for climate justice, an important first step in holding the major polluters accountable, for the sake of all humankind,” Apinelu said.
Future Legal Precedents
Climate activists and lawyers noted that the decision could also influence two upcoming legal opinions by the Inter-American Court on Human Rights and the International Court of Justice – both of which are also considering states’ climate obligations. Last month, the European Court of Human Rights issued a historic ruling in favor of plaintiffs who argued that Switzerland was violating their human rights by not doing enough to combat climate warming.
“Now we have clarity on what states are obligated to do which they have failed to do through 30 years … but this is the opening chapter,” said Payam Akhavan, lead counsel for the nine island nations in the proceedings. He added that the next step is to ensure that major polluters implement their obligations.
