Document Type : Original Article
Authors
1
Assistant professor, Faculty of Humanities, Shahed University, Tehran, Iran Corresponding Author Email: Ma.rashidi@shahed.ac.ir
2
Ph.D., Faculty of Law & Political Sciences, Allameh Tabataba’I University, Tehran, Iran
Abstract
Climate change and its adverse effects have attracted the attention of the international community since at least the 1990s and numerous efforts have been made to regulate state behavior in tackling climate change, most notably through the adoption of international climate treaties such as the 1992 United Nations Framework Convention on Climate Change (UNFCCC), the 1997 Kyoto Protocol, and the 2015 Paris Agreement. Despite these binding treaty documents, how to deal with the increasing trend of climate change remains one of the most important concerns of the world today. According to the UNFCCC, ‘"Climate Change" means a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and is separate from natural climate changes that occur over time’. The adverse impacts of climate change on ecosystems and human life have been well-documented in various scientific reports issued by the Intergovernmental Panel on Climate Change (IPCC). Among the most vulnerable elements of the climate system are the oceans and seas, which cover over 70 percent of the planet’s surface. Notably, the relationship between climate change and seas is a reciprocal one. On the one hand, undeniable scientific evidence points to the severe impacts of climate change on the marine environment, including ocean acidification due to carbon absorption, rising sea temperatures, melting ice, sea-level rise leading to the submersion of low-lying island nations, threats to coral reefs, and harm to marine biodiversity. On the other hand, oceans and seas play a vital role in regulating the Earth’s climate by absorbing and redistributing carbon dioxide and heat, and are considered one of the most important sinks for greenhouse gases. Despite this significant interactions, the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the most important international treaty document in the field of the law of the sea, contains no reference to climate change. Given that communities residing in small island developing states (SIDS) are disproportionately affected by the adverse effects of climate change on the oceans, the Commission of Small Island States on Climate Change and International Law (COSIS) submitted a request for an advisory opinion from ITLOS concerning the following two questions: What are the specific obligations of State Parties to the United Nations Convention on the Law of the Sea (the "UNCLOS"), including under Part XJI: (a) to prevent, reduce and control pollution of the marine environment in relation to the deleterious effects that result or are likely to result from climate change, including through ocean warming and sea level rise, and ocean acidification, which are caused by anthropogenic greenhouse gas emissions into the atmosphere? (b) to protect and preserve the marine environment in relation to climate change impacts, including ocean warming and sea level rise, and ocean acidification? The issuance of the advisory opinion by ITLOS on 21 May 2024 in response to these questions markes a milestone in the articulation of states’ obligations to protect and preserve the marine environment from adverse effects of climate change. In this opinion, ITLOS, as the foremost judicial body in the field of the law of the sea, interpreted the provisions of the 1982 UNCLOS in order to combat climate change. Accordingly, the central research question of this study is: What are the obligations of states under international law, from the perspective of ITLOS, to address the harmful effects of climate change on the marine environment? This article adopts a descriptive-analytical approach to examine the ITLOS advisory opinion and thereby identify and elaborate on the legal obligations of states concerning the impacts of climate change on oceans and seas. Through an in-depth analysis of the Tribunal’s reasoning, it becomes evident that the advisory opinion constitutes an important step toward clarifying and delineating the scope of states’ obligations to eliminate and mitigate the adverse effects of climate change on the marine environment. The findings of this study indicate that, although UNCLOS does not stipulate obligations regarding climate change and its harmful effects, ITLOS, through an evolutionary interpretation, establishes a linkage between two key obligations under the Convention—namely, the duty to prevent, control and reduce marine pollution and the obligation to protect and preserve the marine environment—on the one hand, and the need to address climate change on the other hand. The Court has identified anthropogenic greenhouse gas emissions as pollution of the marine environment, and the Court’s emphasis on the obligation of States to prevent, control and reduce such pollution, as well as their commitment to ensure that no damage is caused to territories outside the State’s jurisdiction by such pollution, requires that States not only reduce anthropogenic greenhouse gas emissions themselves, but also monitor the activities of the private sector in their areas of jurisdiction. This interpretation places a heavier burden of responsibility on major greenhouse gas-emitting countries, particularly industrialized nations. According to the Tribunal, states’ obligations to prevent marine pollution from greenhouse gases and to preserve the marine environment from the adverse effects of climate change are obligations of conduct. In other words, states must exert their best efforts to fulfill these obligations, which are to be assessed based on a stringent due diligence standard. The Tribunal’s emphasis on the application of a stringent due diligence standard for implementing states’ obligations to address climate change in the marine environment necessitates the establishment of national systems, including legislation and enforcement mechanisms, and the monitoring of their effective implementation. Therefore, adopting laws and frameworks aimed at reducing greenhouse gas emissions to combat marine pollution and to preserve the marine environment from the negative impacts of climate change constitutes part of the states’ obligations under international law of the sea. The Tribunal’s emphasis on the stringent due diligence standard reflects the seriousness with which it regards the issue of climate change impacts on the marine environment
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