Climate protection to protect the oceans

The International Tribunal for the Law of the Sea has published an opinion stating that carbon emissions are polluting the oceans and that governments are therefore legally obliged to reduce these emissions. (Photo: Photo of the International Tribunal for the Law of the Sea)

Island nations face a future of flooding and the world is running out of time to get its climate action in order. So they turned to the United Nations Convention on the Law of the Sea, and in May 2024 a court found that countries have a legal obligation to stop polluting the world’s oceans with greenhouse gases. Katie Surma is a reporter at Inside Climate News and joins host Jenni Doering to explain what the decision could mean for global climate action.

Transcript

DOERING: The 2015 Paris Agreement was hailed as a turning point for collectively tackling the climate crisis. Yet nearly a decade later, the world is far from the goal of limiting global temperature rise to 1.5 degrees Celsius. The Paris Agreement is not a legally binding document, so it cannot compel countries to rapidly reduce their carbon emissions. So island nations facing a flooded future and running out of time turned to another United Nations mechanism, the Convention on the Law of the Sea, for help. And in May, the International Tribunal for the Law of the Sea issued an advisory opinion saying that countries have a legal obligation to stop polluting the world’s oceans with greenhouse gases. To learn more about what that means, we now have Katie Surma, a reporter from our media partner Inside Climate News. Katie, welcome back to Living on Earth!

SURMA: Thank you for letting me be here.

DOERING: So this announcement requires governments to take “all necessary measures” to protect the oceans from greenhouse gas emissions. What does that mean in concrete terms?

SURMA: So the tribunal has, I think, 150 pages of detailing what specific steps the countries bound by the treaty must take to comply with this ruling. For example, they must adopt laws and regulations that meet the goals of the Paris Agreement, which is the 1.5 times limit of global warming. They must provide technical assistance to other countries. So the more developed countries must provide technology transfers and financial assistance to less developed countries. And as I said, the ruling is 150 pages long.

DOERING: Wow, that sounds pretty extensive.

SURMA: Yes, it really is. The tribunal also began its opinion by answering that scientific question, which was quite remarkable. Lawyers I’ve spoken to who deal with international environmental law have been very vocal about the importance of that question. The tribunal looked at the best available science, pointing to things like the Intergovernmental Panel on Climate Change. It found that the science on greenhouse gases and their impact on the oceans is no longer a matter of debate. And that positive statement by a court on the findings of the science and connecting it to the findings of the law is a unique decision. And I think lawyers will be grappling with understanding the implications for a while.

DOERING: Well, we have the Paris Agreement. And before that, the Kyoto Protocol. What is new or different about this particular opinion?

Members of the International Tribunal for the Law of the Sea. Their opinion was sought by a group of small island states frustrated by the slow progress on climate change. (Photo: Photo of the International Tribunal for the Law of the Sea)

SURMA: Yes, and you raise a key conclusion of that report. The Paris Agreement is part of what’s called the United Nations Framework Convention on Climate Change. And it’s largely political negotiations. And the culmination of that, in many people’s eyes, was the Paris Agreement, which requires countries by law to regularly report their greenhouse gas emission reduction targets. And that’s their only legal obligation. They don’t have to meet the targets that they set, they just have to set them. And just some additional context: If you add up all the targets that countries have put forward so far, that means the world is on a warming trajectory of 2.8 degrees Celsius above pre-industrial levels. And that level of warming is not an exaggeration, it’s catastrophic. I mean, that’s going to affect the lives of millions of people around the world. Severe droughts, rising sea levels, stronger storms, floods, etc. One of the big issues that the International Tribunal for the Law of the Sea looked at was: is the Paris Agreement enough? Is this Framework Convention on Climate Change the only way that countries have to legally comply? The answer was clear: No, the Paris Agreement is not. There are these other laws that countries have agreed to, and they apply in the context of climate change.

Great legal victory for COSIS today @ITLOS_TIDM ⚖️

Official press release from COSIS ???? pic.twitter.com/4rJTgRIMlb

— COSIS on climate change and international law (@cosis_ccil) May 21, 2024

DOERING: Katie, this is the first opinion that creates legal obligations for countries related to climate change. Why is this happening now and why is the focus on the oceans?

SURMA: So a few years ago, a small group of small island states met at the COP in Glasgow in Scotland. They came together because they were frustrated with the lack of ambition and the slow pace of these political negotiations. This group is known as the Commission of Small Island States or COSIS. The founding members were Antigua and Barbuda and Tuvalu, and some of the other countries were Vanuatu, St. Kitts and St. Lucia. And until now, the oceans have been largely left out of the climate discussion, and unfairly so, because the oceans are the world’s largest carbon sink. They have absorbed, I think, over 90% of the warming of the Earth since pre-industrial times, over 25% or about 25% of greenhouse gases, and these things are impacting the oceans, they are killing marine life through acidification and warming. And the oceans can only absorb or absorb so much warming. And scientists say we’re at a tipping point here. Once a certain level of warming or greenhouse gas uptake is exceeded, it can trigger a series of effects whose consequences we don’t know. On top of that, sea levels are rising. That’s broadly the context in which all this came together. These countries have long been considered the conscience of the COP process and they feel like they’re not being taken seriously. And they also feel like the financial losses and damages have not been taken into account. So this decision is really a powerful tool in the hands of countries that lack political power. Now they have the legal backing for their positions.

Katie Surma is a reporter at Inside Climate News. (Photo: Courtesy of Katie Surma)

DOERING: To what extent does this statement give small island states the power to sue countries that are hesitant to protect the climate?

SURMA: Yes, there are a number of legal consequences that will arise or are likely to arise from this opinion. I have asked several lawyers representing these states whether they plan to sue major emitters in intergovernmental proceedings. Nobody wants to say whether that is in the plans or not, because in the international arena, diplomacy is so important. But technically, a country like the Bahamas could sue a country like the United States in the International Court of Justice for failing to meet its legal obligations. Again, that is unlikely, as far as I know. But this opinion also provides a precedent for litigants at the national level to rely on. So NGOs or citizens could use this opinion as a basis for lawsuits against their own government or other governments. It is also very likely that we will hear this opinion later this year at the COP negotiations in Azerbaijan. It is extremely fascinating to watch how this all plays out in the area between diplomacy, politics and law.

DOERING: Katie Surma is a reporter for our media partner Inside Climate News. Thank you, Katie.

SURMA: Thank you, Jenni.

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Climate news from within | “‘Historic’ climate change report says countries must prevent greenhouse gases from damaging oceans”

Katie Surma’s profile at ICN