Small island states call out rich nations’ climate responsibility in historic ocean tribunal hearing

Leaders of nine small island states turned to the UN maritime court on Monday 11 September. They’re seeking an end to greenhouse gas pollution impacting the world’s oceans. The effects of the climate crisis threaten the very existence of entire island nations.

The island states are asking the International Tribunal for the Law of the Sea (ITLOS) to determine whether carbon dioxide emissions absorbed by the oceans can be considered pollution. If ITLOS determines so, nations could have specific obligations to prevent it under the United Nations Convention on the Law of the Sea (UNCLOS). The international treaty binds countries to preventing the pollution of the oceans.

Greenhouse gases and ocean pollution

In December 2022, the Commission of Small Island States on Climate Change and International Law (COSIS) submitted the request for an advisory opinion from ITLOS.

At the 2021 COP26 climate summit in Glasgow, a collection of small island states formed the COSIS coalition. Antigua and Barbuda, Tuvalu, Palau, Niue, Vanuatu, Saint Lucia, Saint Vincent and the Grenadines, Saint Kitts and Nevis, and the Bahamas make up the group.

The tribunal will conduct public hearings between 11 and 25 September. COSIS, 34 state parties, and four intergovernmental organisations are participating in the meetings in Hamburg, Germany.

The prime minister of Antigua and Barbuda, Gaston Browne, said that the tribunal was:

the opening chapter in the struggle to change the conduct of the international community by clarifying the obligation of states to protect the marine environment

The UN treaty defines pollution as the introduction by humans of “substances or energy into the marine environment” that harms marine life. However, it does not spell out carbon emissions as a specific pollutant. Nonetheless, the plaintiffs argue that these emissions should qualify.

Substantive measures against the climate crisis

At the opening of the tribunal, PM Browne also called out rich nations for failing to tackle emissions. He declared that:

The time has come to speak in terms of legally binding obligations rather than empty promises that go unfulfilled

The joint counsel representing the islands, Catherine Amirfar, said the point was to force countries to implement substantive measures against climate change. She argued that the nations were convening at the tribunal:

to discuss what are the necessary, concrete, specific steps that they must take as a matter of law, not political discretion. That’s key and… a big part of the answer

Ocean ecosystems create half the oxygen humans breathe. They also limit global warming by absorbing much of the carbon dioxide emitted by human activities. However, increasing emissions can warm and acidify seawaters, harming marine life.

Historic responsibility, current burden

Previously, small island states won a big boost for climate justice in March. The UN General Assembly adopted a resolution calling on the International Court of Justice (ICJ) to lay out nations’ obligations towards Earth’s climate. It also asked for clarity on the legal consequences countries face for failing to do so. The move at the UN was led by Vanuatu, one of the island nations that brought Monday’s case before the ITLOS.

As the Canary’s Glen Black reported at the time, the resolution specifically asked:

the court to weigh the Global North‘s obligations to “small island developing States” that are “particularly vulnerable” to climate breakdown.

Of course, this is especially vital in both the ICJ and ITLOS cases. Global North nations have a larger historic responsibility for the climate crisis. At the publication of the latest Intergovernmental Panel on Climate Change (IPCC) report in March, UN secretary general Antonio Guterres stressed the role of rich nations in addressing rampant emissions.

Notably, the IPCC report highlighted that rich industrialised nations were responsible for approximately 57% of global greenhouse gas emissions between 1850 and 2019. Conversely, the poorest, least industrialised nations and small island states contributed just 0.4% and 0.5% respectively during this period.

Naturally, small low-lying islands are particularly exposed to the impact of global warming, with seawater rises posing an existential threat.

Epitomising the increasing threat to small island states, Tuvalu’s prime minister Kausea Natano told the ITLOS tribunal:

Just a few years – this is all we have before the ocean consumes everything my people built across centuries. If international law has nothing to say about an entire country going underwater… then what purpose does it serve?

Legal obligations over charity

Moreover, an analysis from the World Meteorological Organization(WMO) in May spelled out the devastating economic toll of climate-fuelled extreme weather events on small island nations. Specifically, it noted that:

In Small Island Developing States, 20% of disasters with reported economic losses led to an impact equivalent to more than 5% of the respective GDPs, with some disasters causing economic losses above 100%

In June, the Canary reported on progress towards implementing a loss and damage fund. The fund would form an additional pot of finances for Global South nations impacted by climate-charged extreme weather.

Unsurprisingly, Global North nations have been evading their historic responsibility to Global South nations in this, too. Far from funneling funds to climate-stricken countries, Global North nations sought to rehash old funding structures that have worsened debt for countries already experiencing extreme debt burdens.

Additionally, PM Browne also voiced frustration at the attitude of major nations when it comes to funding climate change prevention.

He said at a press conference that when:

large polluters contribute towards various funds, they believe it’s an act of charity

Instead, Browne argued that a successful outcome at the ITLOS tribunal would tell rich nations that they do indeed have legal obligations. In particular, the rich nations largely responsible for driving the climate crisis would have to take concrete action on slashing their emissions to prevent rising, warming, and acidifying oceans.

Additional reporting via Agence France-Presse.

Feature image via apasciuto/Wikimedia, cropped and resized to 1910 by 1000, licensed under CC BY 2.0.