Paras Shah: Last week, an international court issued a major decision that could impact how nations around the world address climate change and protect the ocean.
On May 21, the International Tribunal for the Law of the Sea, also known as “The Oceans Court,” delivered an advisory opinion holding that countries must take all necessary measures to prevent, reduce, and control pollution of the marine environment from greenhouse gas emissions. This is the first time that an international court has ruled directly on countries’ international legal obligations to mitigate climate change. The European Court of Human Rights found similar State obligations under the European Convention on Human Rights in April.
The ITLOS decision is a major victory for the Commission of Small Island States on Climate Change and International Law, or COSIS, a coalition of nine nations from the Caribbean and the Pacific. For small island States, climate change is an existential threat. Protecting the world’s oceans, which act as important heat and carbon sinks, is key to maintaining fish stocks, reducing the frequency and intensity of devastating storms, and protecting plants and wildlife.
What exactly did the Tribunal decide? And how might this groundbreaking ruling impact future climate policy?
This is the Just Security Podcast. I’m your host, Paras Shah. Co-hosting this episode with me today is Just Security’s Managing Editor, Megan Corrarrino.
Megan Corrarino: Joining the show to discuss the Tribunal’s decision and its potential impact are Catherine Amirfar and Ambassador Cheryl Bazard.
Catherine is Chair of the Subcommittee on Litigation Management of COSIS’s Committee of Legal Experts and the Co-Chair of the law firm Debevoise & Plimpton’s International Dispute Resolution Group. She is also the Co-Chair of Just Security’s Advisory Board. Ambassador Cheryl Bazard serves as The Bahamas' Ambassador to Belgium and the European Union. The Bahamas is one of the nine COSIS States that sought the opinion.
Paras: Ambassador Bazard, Catherine, thank you so much for joining the show to discuss this important decision. Catherine, many of our listeners might not be familiar with the international tribunal for the Law of the Sea, also known as ITLOS and the oceans court. Could you start by giving us an overview of the tribunal?
Catherine Amirfar: Happy to, and really wonderful to be here with you and with the ambassador. So as you say ITLOS, as it's called, it's an independent, international tribunal that is part of the UN system of specialized courts. And as you've noticed, sometimes called the World Court for the ocean. And that's because it was established by the UN Convention on the Law of the Sea, which is also known as the ocean treaty. Now, that treaty was adopted over 40 years ago, and since then, 169 countries have become parties. It has become so foundational in the fabric of international law that it's known as the Constitution for the ocean. And so ITLOS really stands as the guardian of the Constitution for the ocean. It’s responsible for its interpretation, its application. It is comprised of 21 elected judges who sit in a courtroom in Hamburg. And they come from all regions of the world with a reputation for the fairness, integrity, and they have obviously a particular technical expertise in the Law of the Sea.
Paras: Thanks so much for that overview. And the advisory opinion that we're discussing today was brought in December 2022. By the commission of small island states on climate change and international law, also known as COSIS. Ambassador Bazard, the Bahamas is a member of COSIS. What motivated the coalition to bring this case?
Ambassador Cheryl Bazard: Thank you for the question, Paras, and just to give some background, COSIS was formed in 2021 at the COP meeting in Glasgow by the countries Antigua and Barbuda, and Tuvalu, and the aim of that formation was to define and enforce State obligations under international law to safeguard the marine environment. This association was born, as many great ideas and institutions are, out of frustration with the lack of urgency and the response by developed states to developing states in their action to curb the effects of climate change on the environment of small island states, as demonstrated by stalled negotiations, on compensation for loss and damage. So the Kosis request for an advisory opinion which as you indicated was submitted in December of 2022, saw the resolution of a legal question under the United Nations Convention and Law of the Sea.
And that was the scope of the state's obligations under UNCLOS from adverse climatic effects and degradation. And COSIS put two questions to the Tribunal. The first was, what were the specific obligations of states 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 ocean warming and sea level rise and ocean acidification caused by anthropogenic greenhouse gas emissions or GHG into the atmosphere. And secondly, to protect and preserve the marine environment in relation to climate change impacts including ocean warming, sea level rise, and ocean acidification.
Paras: Right. And when we hear the questions presented that way, they sound complicated, and using a lot of scientific terms, but essentially what COSIS is asking is, what exactly are states obligations? What do they have to do when it comes to their international law commitments in protecting the ocean? Catherine, how exactly did the tribunal respond? What did it decide last week?
Catherine: So just, the tribunal issued its advisory opinion and the words that come to mind sitting in the courtroom in Hamburg, receiving the decision are really historic, legal game changer. And I don't use those words lightly. But this is the first time an international tribunal has opined on exactly what you said, the steps that countries are legally obligated to take to mitigate and adapt to the catastrophic effects of climate change. And I want to pause on that, because that's what makes this different. It is a statement, an authoritative statement, of what international law requires under the ocean treaty in relation to climate change.
And it's the first time that's been done in a unanimous opinion that spans 153 pages. And so you can imagine, there's a lot of detail to that. But the key holding is that GHG emissions that come from manmade activities constitute marine pollution under the ocean treaty. And it triggers a broad ambit of legal obligations in relation to climate change under a treaty to which 169 countries are party. And so what we have here is, for the first time, a detailed listing of legal obligations, the breach of which would obviously trigger international responsibility for compensation, for other aspects available under international law, in relation to climate change. The other point I'll emphasize is that the tribunal made clear that, contrary to what some countries argued during the course of these proceedings, the tribunal made clear that the Paris agreement and the other treaties that are part of what's called the climate change regime, is not exclusively what states must do in order to meet their legal obligations under the ocean treaty.
So the basic question is, is it enough for states to basically issue nationally determined contributions under the Paris agreement to meet their legal obligation under the ocean treaty? And the tribunal came back with a very clear answer: no. More is needed. The ocean treaty is its own basic constellation of legal obligations, independent of the Paris agreement and the climate regime, and should be treated as independent legal obligations. So that was really significant in terms of being part of what the tribunal was communicating about what the ocean treaty requires.
Megan: That is very helpful. Catherine, thank you. Among some of that detail that you mentioned, the tribunal relied extensively on, quote, “the best available science” in making its decision. What role did science and our understanding of the impact on climate change on the world's oceans play in this case?
Catherine: I would say it was a central role. And if I use the words of the tribunal, it was a crucial role played by science. Honestly, it became a almost a mantra, in the submissions by COSIS to the tribunal, both in the written and oral phase, that it was all about what is necessary for countries to take with respect to climate change, not as a matter of political discretion, but as a matter of what the objective science tells us is necessary to avoid the catastrophe that is climate change. And so what COSIS urged, and what the opinion now spells out, is that the measure of what actions are necessary by countries is on the basis of the best available science. And that science is unequivocal, it's unarguable. We are no longer in the realm of debate if we ever were. And they're manifest in the conclusions of the Intergovernmental Panel on Climate Change, the IPCC, which is the world's authoritative source of the best available climate change science. And that's exactly what the advisory opinion endorsed. And the reason that's so important is the role that the ocean plays in climate change is by far the largest greenhouse gas and heat sink for the entire world. It absorbs more than 90% of the excess heat and nearly one quarter of the excess carbon that's accumulated in the atmosphere since the 19th century.
But we're at a tipping point, we have as a result of these GHG emissions, damage to the ocean environment, the marine environment to such an extent, that it is no longer functioning in that fashion. And its failure, our failure to protect the ocean would only exponentially increase the catastrophic effects of climate change. So what this advisory opinion does is it marries the law and the best available science to lay out a blueprint for what countries must do as a matter of legal obligation to combat climate change.
Megan: So clearly, this was a profound decision, an enormous amount of work went into it from all sides. Ambassador Bazard, what was it like to be in the courtroom when this decision was announced? And what did it mean for the small island states.
Ambassador Bazard: I think that words really can't express what we felt when we listened to the advisory opinion being rendered by the President of ITLOS, we looked at each other. From time to time we were trying to contain our, our joy, if I can use that word, in what this advisory opinion was and the effects it would have. I think if you can couch this in the light of the fact that countries, small island states, countries like the Bahamas, stand to lose not only a heritage or a livelihood, or a standard of living, but really life and existence itself. As you know, we are subject to many exogenous shocks that have greatly impacted our socio economic status, one of which is the alarming impact of climate change.
In the Bahamas, 32% of its land and one quarter of its population are projected to be underwater by 2050, with the resultant loss of life, and for those who survive becoming climate refugees. So this advisory opinion provides for us the legal framework by which small island states can seek recourse and or seek further legal recourse in other courts and in the judicial system. And so it was a joy to see the needle finally move and that we were shown to be right by taking our case to ITLOS and to move away from the constant talks that seem not to bring any relief for countries like ours.
Megan: And clearly, this was such a powerful decision. I think that really helps put things into context for what this means and how significant it is beyond the courtroom. Catherine, you wrote in an extremely helpful question and answer for Just Security and noted among other things that this decision will strengthen the legal basis for island states claims, that it will play an important role in diplomacy.
I'd be interested to hear from both of you on pieces of that, Catherine, how do we get from this advisory opinion to concrete remedies and enforcement measures? Is there a pathway for this opinion to lead to actual reductions in emissions by other states? And what does that path look like?
Catherine: Sure, and it won't surprise you to hear that I think the answer is yes, there is a pathway, and the pathway has both legal and diplomatic components. So the advisory opinion itself is non binding because it is an advisory opinion. But it does stand as an authoritative statement of what international law requires under the ocean treaty related to climate change. And what that means is that in the next case, whether it's on the international plane or in domestic courts, there is a fabric of legal obligations that can anchor those legal claims going forward. Now, I can't speculate as to what those next generation cases look like. But at least what we have here is an understanding and a clarification and a crystallization of what the legal obligation framework is. And again, that's for the first time under an international treaty related to climate change. It also has a diplomatic aspect to it in that it provides, as an authoritative statement of the law, both the lexicon and a lever for small island states in addressing what is an existential crisis that they face in ongoing diplomatic negotiations around technology transfer, loss and damages.
All of this is part of the negotiations and this fabric of obligations that the advisory opinion clarifies feeds into those negotiations. So I think of it as very much a synergistic relationship between the legal components and the diplomatic next steps. And I think probably one of the most important aspects of this is that this opinion places the ocean at the heart of the legal and political efforts related to climate change. And that really is a game changer, both from a legal and diplomatic perspective. And of course, given the role and the central role the ocean plays in the climate system, the fact that this opinion will give a basis for what are the technology transfer obligations, what are the necessary steps informed by the best available science, all of that will contribute to very concrete statements by states, by countries, as to what they have to do in order to meet the thresholds that the best available science sets out. Just to give you a snapshot at the Global stocktake that occurred just last year, which was an opportunity to assess all of the nationally determined contribution plans from the countries who are participating under the auspices of Paris Agreement, it was an opportunity for us to take a breath and say, How are we doing as a world community in addressing this crisis?
And the answer is not well, even if you assume that the NDCs, these nationally determined contribution plans, are fully implemented, we are still very much on a pathway, not just not to hit the 1.5 degrees Celsius threshold that we know is after which the catastrophic effects of climate change get exponentially worse. But we're on a pathway to a 2.8 degree average climate increase, which is more than catastrophic. So we know there's work to be done. We're not doing it far enough and fast enough. And what this opinion does, is it catalyzes that action going forward.
Paras: Right, an important step in catalyzing those legal obligations. Ambassador Bazard, how does this decision influence or inform the Bahamas’ strategy and the strategy of COSIS on the diplomatic front?
Ambassador Bazard: Well, I think Catherine really did a beautiful job in laying out the diplomatic and the legal framework by which we can now move forward. And if one looks, first of all, at the whole legal language of loss and damage, it's a legal construct. And we now see that this opinion shows the transformative power of international law that has been reimagined through the lens of environmental justice as supported by science. And I think that is what is so important here. And the protection that this advisory opinion affords, to our oceans and marine environment is a very lucid and detailed legal precedent, for complying with measures necessary to negate at best and mitigate at least the effects of climate change. There is the responsibility for states to act. And the directive is simple. But yet direct and strong prevent, reduce, and control harm to the marine environment, do so with a sense of urgency, and provide the necessary assistance to right the wrongs that you have committed.
Paras: That’s a very powerful message. In concrete terms. What would you say to policymakers who now have to implement this decision? What steps should they really take when it comes to taking the law from where it is to where the rubber hits the road, which is policy action?
Ambassador Bazard: Well, I mean, that's a good question. But they have all of the assistance that is required from the advisory opinion. The tribunal took its time in terms of laying out: what is the pollution as defined? What are the specific responsibilities? And it looks at it from different articles of the convention, and it looks at it and brings a directional instruction, to cause competent international organizations to establish global and regional rules, standards, and to recommend practices and procedures. And so it is very clear in terms of what this should be, and it's up to them to flesh it out as appropriate. And this level of appropriateness, if I can use that as a word, is based on due diligence, and that due diligence is stringent. And and that's so because of the incalculable and irreversible damage to the marine environment, owing to the impact of climate change through man's actions and ocean acidification. And so the textbook, as we sought to call it, when we were handed a copy of the advisory opinion, is very clear, very instructive. And it forms the basis for climate negotiation, and decisions for further actions, both in the diplomatic realm and the legal realm for small island states like the Bahamas.
Megan: That's great. That's very helpful. And it seems like what we are seeing now is the result of many years of work and that COSIS has laid the groundwork for litigation now that's going on in a number of tribunals. One of our executive editors, Bec Hamilton, wrote an article in which she called 2024, the quote “year of climate in international courts and tribunals” and there are opinions coming down from the European Court of Human Rights, something pending at the Inter American court of human rights, the ICJ. So with all of this activity, both in courts and also behind the scenes in diplomatic and political negotiations, what would each of you identify as one to two trends to watch in the coming year?
Catherine: I can start. I think, as you said, you know, an international law advisory opinions are having a moment. COSIS has obviously brought and initiated the case before ITLOS that we've just been discussing, but it's also participating in the Inter American Court of Human Rights and the International Court of Justice, which are both taking account of the international legal questions related to climate change. So I think in terms of something to watch is really what those decisions look like, especially in the ICJ, which is the the UN's top judicial organ, and as a court of general jurisdiction is going to be opining not just on obligations of countries under UNCLOS, or the ocean treaty, but a whole host of different legal regimes.
So one to watch is how that process unfolds. And again, COSIS has submitted a written statement, the next written statement is due in just a month. And then there'll be oral proceedings before before that court, which as again, the World Court is going to be an important moment. The other of course, is COP 29 coming up later this year in Baku. It will be very interested to see how this clarification or crystallization of the ocean treaty obligations plays into those negotiations, as well as last year stocktake, which, again, means that there's a lot of work to do by countries to reduce GHG emissions and think about the fund and technology transfer and all of those issues that have been on the diplomatic agenda for so long, but for which there hasn't been enough concrete progress. So those are the two pieces of that, that I would very closely track going forward.
Ambassador Bazard: For me, I concur with watching the ICJ and the COP 29. But I will also add the SIDS 4 Conference, and to really see what the conversation would be like in light of this advisory opinion. And whether it shapes the way forward for small island developing states, and the reaction by developed countries. Also looking at the reshaping of the financial architecture for access by small island states to financing, that has been a problem, those who have caused the damage are now not reacting in a strong manner or a swift manner by which to allow countries that have been affected by their actions to now access the financing necessary to provide the concessions in these countries.
And so that is going to be very clear. I think somebody said it. I mean, you know, show me the money. Because for us in the small island states, it's going to take that to repair the harm and the damage that has happened to our countries owing to climate change action that has been really ongoing for some time without any recourse to justice. And so this is the first step. And we look forward to see if the ICJ follows in the same trajectory as ITLOS. And so it's a very exciting time. And we await the outcome of these meetings and advisory opinions, a very
Paras: A very exciting time across many different tribunals forums and issues. Ambassador Bazard, Catherine, thank you so much for joining the show. We'll be tracking all of this at Just Security.
Catherine: Thank you very much for having us. It's been a pleasure.
Ambassador Bazard: Yes. Thank you for having me.
Paras: This episode was co-hosted and produced by me, Paras Shah, and Megan Corrarino with help from Audrey Balliette.
Special thanks to Catherine Amirfar and Ambassador Cheryl Bazard.
You can read all of Just Security’s coverage of climate change, including Catherine’s analysis of the ITLOS decision, on our website. If you enjoyed this episode, please give us a five-star rating on Apple Podcasts or wherever you listen.