Greenhouse gas emissions from human activities are responsible for marine pollution and States must act to preserve this environment, the UN Maritime Tribunal ruled on Tuesday May 21. An unprecedented position which should set a precedent in international climate law in construction.
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“ The oceans are the lungs of our Earth and today they breathe. » The ambassador of the Bahamas, Cheryl Bazard, had difficulty containing her joy in front of the press, in the very serious enclosure of the International Tribunal for the Law of the Sea in Hamburg (Germany), Tuesday May 21. “ This is a historic moment for Small Island Developing States in their quest for climate justice “, greeted a representative of the Tuvalu Islands.
In terms of international environmental law, this is indeed a pivotal moment. This is the first time that an international court has issued an advisory opinion – of general scope – on the issue of climate change. Since the end of 2022, the twenty-one judges of the UN maritime tribunal have been working on a dissertation topic submitted by a group of nine island states from the Pacific and Caribbean: what are the obligations of the 168 states parties to the Convention of the United Nations on the Law of the Sea (UNCLOS) to protect the ocean from marine pollution, ” having regard to the harmful effects that climate change may have, particularly through ocean warming and sea level rise, and ocean acidification, which are caused by anthropogenic emissions greenhouse gases in the atmosphere » ?
Read alsoProtection of the ocean: the Maritime Court must rule on the climate duties of States
GHG emissions constitute marine pollution
If the exercise required a little work, it is because the young climate law and the slightly less young law of the sea (UNCLOS dates back to 1982) have evolved in parallel. To decide the case, the judges therefore had to update the first in light of the second, but also, and this is notable, in the light of “ best scientific knowledge available », in other words the thick IPCC reports, cited extensively during the reading of the opinion.
He first recognizes that “ Anthropogenic emissions of greenhouse gases into the atmosphere constitute pollution of the marine environment », concluded the judges at the end of this expected hearing. Because, according to the so-called Montego Bay Convention, the Tribunal’s reference text, marine pollution is the ” introduction by man, directly or indirectly, of substances or energy into the marine environment (…) which causes or is likely to cause deleterious effects “.
Consequently, the judge continued to answer the second part of the question, the most scrutinized, the States have “ the specific obligations to take all necessary measures to prevent, reduce and control marine pollution resulting from anthropogenic GHG emissions “. They must ” preserve “, ” which also means restore » the marine environment clearly clarified the judge, and this “ conservation of biological resources, marine fauna and flora requires essential measures » which are “ left to the discretion of States, but must be based on the best scientific knowledge “. To this end, countries must “ strive to harmonize their policies “.
Although the effects of warming on the world’s seas are no longer discussed in the scientific community, this is the first time that an international court has made the link between the question of global climate change and that of the ocean, which nevertheless covers 70 % of our planet and captures nearly a third of the carbon dioxide released by human activities. A major regulator of the climate, it is nevertheless overheating and the rise in its mass threatens the islands with submergence and the coasts with erosion. Faced with this very real danger, nine island states (Antigua and Barbuda, Bahamas, Niue, Palau, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Tuvalu and Vanuatu, grouped together in within a committee, Cosis), no longer able to wait for diplomacy to prove itself to match the urgency, took the legal route.
The Paris Agreement reinforced by law
The judges’ opinion is simply advisory: there will be no sanctions or direct constraints on the States. But this does not remove its interest since it will set a precedent and strongly influence those of other jurisdictions. This tribunal, which has the upper hand over the laws of the ocean, is listened to, including by powers which are not members of the Convention, such as the United States, which has the largest maritime territory. “ The Court adopts a position resolutely favorable to the protection of the environment, observes for RFI Pascale Ricard, researcher at the CNRS who is following this issue. He also states tersely that climate change “represents an existential threat” and also raises “human rights concerns”. »
For lawyer Payam Akhavan, lawyer for Cosis, this opinion means that “ it is no longer enough to submit determined national contributions [les plans des États, demandés par l’Accord de Paris, pour réduire les émissions de GES] which are largely inadequate. This turning point in international law should ideally shape future negotiations to ensure a more solid climate regime. Whether it concerns the exploitation of the deep seabed, the COP processes or any other context linked to greenhouse gas mitigation, [cet avis] will be an instrument in the hand of the Small Islands and any other vulnerable country “, he insisted. “ We now know the legal obligations, whatever the political assessments », Added her colleague Catherine Amirfar.
“ For those who hide behind the weaknesses of international climate treaties, this opinion clearly shows that compliance with the Paris Agreement alone is not enough, points out Nikki Reisch, of the American NGO Center for international environmental law. Commitments and promises made at annual climate conferences do not meet States’ legal obligations » to succeed in limiting warming to +1.5°C. For Me Akhavan, this is the “ central point “.
“ Law and science met today in this courtroom. A legal marriage “, joked Cheryl Bazard for her part. The honeymoon will perhaps take place at the International Court of Justice: the highest court in the world must in turn issue an advisory opinion by early 2025, but on a much more general question and therefore potentially even more impactful.