In an opinion issued at the request of small island states, the court established under the Montego Bay Convention considers greenhouse gases to be pollution of the marine environment that states must control.
” The International Court of Law of the Sea is making history by issuing the first opinion of an international court on climate change and oceans. » These are the words of the Commission for Small Island States (Cosis) greets opinion performed, this Tuesday 21.05 in 2024, per THE court, based in Hamburg (Germany), responsible for settling disputes related to the application of the United Nations Convention on the Law of the Sea, known as the Montego Bay Convention.
There Cosiscreated in October 2021 and composed of nine small island states (1) he asked the court two questions in December 2022. They it was about obligations States pof art according to Conventionnumber 169, prevent and reduce pollution of the marine environment, and protect that environment, taking into account the effect of anthropogenic greenhouse gas emissions on ocean warming and acidification, and on sea level rise.
Tribunal is considered competent to issue this advisory opinion and answers unanimously according to Cosis. AND notice imponrtant in Lhas a construction climate law internationalon the one hand, because‘this is one of the first positions he tookinternational jurisdictionto the questionon the other hand, becausehe it is in line with the requirements of small island states, victims of rising ocean levels due to global warming of which they are not responsible.
Pollution of the marine environment
” Anthropogenic emissions of greenhouse gases (GHG) into the atmosphere represent pollution of the marine environment (in terms of the Convention) “, above all, the judges believe by answering the first question. LStates parties have the obligation ” take all necessary measures to prevent, reduce and control marine pollution resulting from anthropogenic greenhouse gas emissions and strive to harmonize their policies in this regard “. These measures must be taken into account ” of the best available scientific knowledge » and international ruleswith relevant asThe Paris Agreement ” especially the goal of limiting the increase in global temperature to 1.5°C “.
This, the opinion adds, is an obligation to “ deep analysis “. And the level of diligence is high, taking into account the acute risks of serious and irreversible damage to the marine environment posed by these emissions », the judges indicate. This duty of due care, however, is the opposite of an obligationtion of the results that would require that the environment marin is not contaminated by any pollution. It corresponds to the expressed request Lin France during the procedure, explains the law professor Arnaud Gossé (2) .
party statesstates an opinion, they also have an obligation to take all necessary measures to ensure that anthropogenic emissions of greenhouse gases that fall under their jurisdiction” they do not harm other countries and their environment by polluting them “and so that the pollution associated with such emissions” it does not extend beyond the areas where they exercise sovereign rights ». Level ” deep analysis » there can be more here « due to the nature of transboundary pollution ».
The Tribunal also interprets other provisions of the Convention in light of thise state a series of obligations additional : adoption and application fromwith lawwith AND regulations required ; cooperation with other countries ; assistance to developing countries in their fight against this one pollution ; onvigilance to be continued, announcementwith reports correspondents and carrying out an environmental impact assessment.
Obligation to protect the marine environment
Obligation to protect and preserve the marine environment ” it has a wide scope, it includes all types of damage to the marine environment and all threats to the marine environment “, indicates the Court in response to the second question. Enot result, States parties have the obligation ” protect and preserve the marine environment from the effects of climate change and ocean acidification ». AND, where the marine environment is degraded, this obligation may ” call for measures to restore marine habitats and ecosystems ». States are also needed” predict the risks associated with the impacts of climate change and ocean acidification “.
LThe court putsthere-Also, And a number of other obligations at the expense of the states : protect rare or sensitive ecosystems and habitats of declining species impacts of climate change; preserve marine biological resources threatened; prevent, reduce and control introduction of non-native species.
“It is already part of international law »
” The International Tribunal for the Law of the Sea has taken a crucial first step in recognizing what small island nations have fought for for decades during negotiations on POLICE OFFICER it is already part of international law. Large polluters must avoid catastrophic damage to small island states, and if they fail to do so, they must compensate for losses and damages », he reacts I pay AkhavanotReprwithenthant of Coifwith before the tribunal.
” The Tribunal’s opinion leaves no doubt: states have a duty to protect the oceans from the factors and impacts of climate change, confirmed Nikki Reichdirector of the climate and energy program Center for International Environmental Law (Ciel). For those who hide behind the weakness of international climate agreements, this opinion makes it clear that simply adhering to the Paris Agreement is not enough. »And beforeeremove: ” Commitments and promises made at annual climate conferences do not fulfill the legal obligations of states (…). We know that this requires the rapid elimination of all fossil fuels. States that do not comply face legal liability. »
Even if it is just an opinion, it contributes to the formation of law international climatic. ” It creates a clear legal precedent for addressing climate change within existing international frameworks and strengthens the responsibilities of states in the fight against climate change.says Louise Fournier, Legal Adviser on Climate Justice and Accountability at Greenpeace International.
Especially since this opinion does following recent decision European court for human rights guaranteeing the right to effective protection of individuals by states against the effects of climate change. It is also a partand two procedureare ongoing in front, there US Court of Human Rightson one side, and in front International Court of Justiceon the other side. Commission for Small Island StatesIand even more so on a request for an advisory opinion initiated by one of its members, Vanuatu, and addressed by the General Assemblye of the United Nations before the latter jurisdiction.
“ These international courts and tribunals will clarify the obligations of states to act on climate change under international law for decades to come », estimates Greenpeace International.
Article published on May 22, 2024