Air Date: Week of July 12, 2024

The International Tribunal for the Law of the Sea published an advisory opinion stating that carbon emissions are polluting the oceans and that governments therefore have a legal obligation to reduce those emissions. (Photo: International Tribunal for the Law of the Sea photo)

Island nations are facing a flooded future and running out of time for the world to get its climate act together. So, they turned to the UN Convention on the Law of the Sea, and in May 2024, a court found that countries do have legal obligations to stop greenhouse gases from polluting the world’s oceans. Katie Surma is a reporter with 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 celebrated as a turning point for nations coming together to tackle the climate crisis. But nearly a decade later, the world is way off track from the goal of limiting global temperature rise to 1.5 degrees Celsius. The Paris Agreement is not a legally binding document, so it can’t compel nations to rapidly reduce carbon emissions. So island nations facing a flooded future and running out of time turned for help to a different United Nations mechanism, the Convention on the Law of the Sea. And in May, the International Tribunal for the Law of the Sea issued an advisory opinion stating that countries do have legal obligations to stop greenhouse gases from polluting the world’s oceans. For more on what this means, we are joined now by Katie Surma, a reporter with our media partner Inside Climate News. Katie, welcome back to Living on Earth!

SURMA: Thanks for having me.

DOERING: So this announcement requires governments to take "all necessary measures" to protect the oceans from greenhouse gas emissions. What does that actually mean?

SURMA: So the tribunal laid out, it was over, I think 150 pages going into detail about specific steps that nations that are bound by the treaty have to take to comply with this ruling. And so they have to do things like enact laws and regulations that meet the goals of the Paris Agreement, that 1.5 warming threshold. They need to provide technical assistance to other countries. So, more developed countries need to transfer technology and provide financial assistance to less developed countries. And like I said, the decision is 150 pages.

DOERING: Wow, that sounds pretty extensive.

SURMA: Yeah, it really is. The tribunal started its opinion in addressing this question of science as well, which was pretty remarkable. Attorneys who I talked to, who practice international environmental law, really emphasized the importance of that. The tribunal went into what the best available science said, making reference to things like the Intergovernmental Panel on Climate Change, remarking that the science on greenhouse gases and what they do to the oceans, it's not a debate anymore. And so just that affirmative statement from a court about what the science says, and then stitching it together with what the law says it's a first-of-its-kind decision. And one, I think, that lawyers will be digesting for some time to understand what the implications are.

DOERING: Now, we do have the Paris agreement. And even before that, the Kyoto Protocol, what's new or different about this particular opinion?

SURMA: Yeah, and you are hitting on a major implication of this advisory opinion. The Paris Agreement is part of what's known as the UN Framework Convention on Climate Change. And they are largely political negotiations. And the sort of high point of that, in a lot of people's eyes has been the Paris Agreement, which under that agreement, countries are legally obligated to periodically report their goals to reduce greenhouse gas emissions. And that is their only legal obligation. They don't need to meet the goals that they set, they just have to set them. And just some additional context here, you know, if you add up all of the goals that countries have submitted so far, that puts the world on a warming pathway to 2.8 degrees Celsius above pre-industrial levels. And that amount of warming, this is not hyperbole, it's catastrophic. I mean, this will affect millions of people's lives around the world. Severe drought, sea level rise, more severe storms, flooding, etc. And so one of the big issues here that the International Tribunal on the Law of the Sea was looking at was this question of is the Paris Agreement enough? Is this climate framework convention, is that the only game in town here when it comes to what countries are legally obligated to do? And it gave a definitive answer of no, the Paris Agreement is not it. There are these other laws out there that countries have agreed to, and they apply in the context of climate change.

Tremendous legal victory by COSIS today @ITLOS_TIDM ⚖️

COSIS official press release ???? pic.twitter.com/4rJTgRIMlb

— COSIS on Climate Change and International Law (@cosis_ccil) May 21, 2024

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

SURMA: So a small group of small island countries came together at the Glasgow COP in Scotland a few years ago. They banded together because they were frustrated with the lack of ambition, the slow pace of these political negotiations. That group is known as the Commission of Small Island States or COSIS. The founding members were Antigua and Barbuda, as well as Tuvalu, and some of the other countries were Vanuatu, St. Kitts and St. Lucia. And until now, the oceans have largely been sidelined from climate discourse and wrongly so because oceans are the world's biggest carbon sink. They have absorbed, I think it's something like over 90% of Earth's heating since pre industrial times, over 25% or around 25% of greenhouse gases and those things affect the ocean, it's killing off marine life through acidification and heating. And there's only so much heating the ocean can take or absorb. And scientists say that we're at a tipping point here. Once you know, a certain level of heating or greenhouse gas absorption is breached, it can catalyze a number of effects that we have no understanding of what that will do. Beyond that, there's sea level rise. So that's broadly the context of how this all came together. These countries have been known as the conscience of the COP process for a long time and feel that they haven't been taken seriously. And they also feel that the financial loss and damages has not been forthcoming. So this decision's really a powerful tool in the hands of those countries that lack sort of the political power. Now they have the legal backup to their positions.

DOERING: To what extent does this opinion give small island states any power to sue countries that are stalling climate action?

SURMA: Yeah, there's a number of legal consequences that will flow from this advisory opinion or that are expected to flow. I asked a number of attorneys who represent these states, are you planning to sue big emitters in state-state litigation, no one wants to say whether that's in the works or not, because in the international realm of things, diplomacy is so important. But technically, I mean, a country like the Bahamas could, you know, take a country like the United States to court before the International Court of Justice, over failure to meet its legal obligations. Again, from what I hear, that's not likely to happen. But this advisory opinion also provides legal precedent for litigants at the national level, to rely on it. So NGOs or citizens could use this advisory opinion as a basis for suing their own governments or other governments. It's also very likely that in Azerbaijan later this year at the COP negotiations that we're going to be hearing this advisory opinion referenced. So that realm between the diplomatic, the political and the legal, that's one of the most fascinating things to watch how this all plays out.

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

SURMA: Thanks, Jenni.

 

Links

Inside Climate News | “‘Historic’ Advisory Opinion on Climate Change Says Countries Must Prevent Greenhouse Gases from Harming Oceans”

Katie Surma’s Profile at ICN