International Tribunal for the Law of the Sea (ITLOS)
It is an independent judicial body established by the 1982 United Nations Convention on the Law of the Sea.
The Tribunal is composed of 21 independent members.
The seat of the Tribunal is in the City of Hamburg, Germany.
It has jurisdiction over any dispute concerning the interpretation or application of the Convention and over all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal.
Disputes relating to the Convention may concern the delimitation of maritime zones, navigation, conservation and management of the living resources of the sea, protection and preservation of the marine environment and marine scientific research.
The Tribunal is open to States Parties to the Convention(i.e. States and international organisations which are parties to the Convention).
It is also open to entities other than States Parties, i.e., States or intergovernmental organisations which are not parties to the Convention, and to state enterprises and private entities.
COSIS
Over the coming decades, Small Island Developing States (SIDS) will encounter "rising sea levels, extreme weather events, coral bleaching, loss of fisheries and marine biodiversity", as well as the risk of total submersion.
Facing this existential threat, as well as inaction on the international stage, the Prime Ministers of Antigua and Barbuda and Tuvalu signed the Agreement for the Establishment of the Commission of Small Island States on Climate Change and International Law (COSIS) on the eve of COP26.
The Agreement was registered with the United Nations in accordance with Article 102 of the Charter of the United Nations
The Co-Chairs (PM of Antigua and Barbuda and Tuvalu) have appointed Committees and Subcommittees to advise on the exercise of the Commission's mandate and conduct of its activities.
The Committee of Legal Experts comprises 14 legal scholars and practitioners.
The Committee is gender balanced with representatives from States on six continents.
They serve on subcommittees relating to (1) the marine environment, (2) loss and damages, (3) sea-level rise, (4) human rights, and (5) litigation management
United Nations Convention on the Law of the Sea (UNCLOS)
The United Nations Convention on the Law of the Sea (UNCLOS), 1982 is an international agreement that establishes the legal framework for marine and maritime activities.
It is also known as Law of the Sea.
It divides marine areas into five main zones namely- Internal Waters, Territorial Sea, Contiguous Zone, Exclusive Economic Zone (EEZ) and the High Seas.
It is the only international convention which stipulates a framework for state jurisdiction in maritime spaces.
It provides a different legal status to different maritime zones.
It provides the backbone for offshore governance by coastal states and those navigating the oceans.
It not only zones coastal states’ offshore areas but also provides specific guidance for states’ rights and responsibilities in the five concentric zones.
ITLOS advisory opinion
International climate change litigation reached a milestone on May 21, 2024 when the ITLOS delivered an advisory opinion sought by the COSIS concerning the specific obligations of the Parties to the UNCLOS on climate change mitigation
The Tribunal, in its Opinion, laid down very clearly that under Article 194(1) of the UNCLOS, “the Parties have specific obligations to take all necessary measures to prevent, reduce and control marine pollution from anthropogenic greenhouse gas emissions (GHG)”.
The ITLOS clarification on carbon as pollutant bolsters the position taken by the scientific community that the surface ocean absorbs around a quarter of the CO2 emitted into the atmosphere, at increasingly rapid rates, resulting in the progressive acidification of sea water.
Other greenhouse gases (GHGs) do not have this effect.
In addition, the sea also absorbs over 90% of the excess heat (‘energy’) generated by global warming, resulting in higher ocean temperatures and, ultimately, in sea-level rise.
The principle of prevention or no harm rule which governs state behaviour towards regulation of shared natural resources (between two or more states) so as to avoid transboundary harm of a significant nature in another state has its two main limitations when the rule is sought to be applied to regulate climate crisis: its anchoring in a bilateral frame, and, the principle is not helped due to obstacles relating to attribution and standing in establishing a breach of obligation to climate change.
The Opinion, by siding with the principle for climate change , adds a new chapter.
The necessary measures are to be decided in the light of the best available science and the relevant international rules and standards contained in the United Nations Framework Convention on Climate Change, the Paris Climate Change Agreement 2015, and also 1.5° Celsius rather than 2° C as the global average temperature goal.
The Opinion describes the obligation relating to the taking of necessary measures as due diligence obligation but the standard of it in the eyes of the Opinion is stringent one given the high risks of serious and irreversible harm to the marine environment from such emissions.
But the Parties’ obligations in terms of taking all necessary measures to reduce anthropogenic GHG emissions within Article 194 (1) are very general in nature.
This can be interpreted that neither the release of all pollution (GHGs) must be prevented nor that anthropogenic GHG emissions must cease immediately or even eventually.
Measures that gradually reduce marine pollution by lowering GHG emissions over a period of time would be sufficient.
Still, the identification of a general obligation by the ITLOS underlines one thing — that states do not have unfettered discretion in addressing climate change.
Mere identification of general obligation will be of symbolic value and is inadequate.
COMMENTS