Last February, the UN secretary-general informed the UN Security Council during a debate about the implications of rising sea levels on international peace and security, with mega-cities on every continent facing serious impacts.
These cities include Lagos, Maputo, Bangkok, Dhaka, Jakarta, Mumbai, Shanghai, Copenhagen, London, Los Angeles, New York, Buenos Aires and Santiago, according to the World Meteorological Organization.
Caused by global warming, rising sea levels threaten existing maritime boundaries, mass displacement of populations and the national survival of low-lying small island states. This year's temperature records are rising around the world. At the same time, nations are failing to fulfil their commitments to comply with the 2015 Paris Agreement's target of keeping long-term global warming within 1.5°C above pre-industrial levels.
Among those mostly affected by the rising sea levels, the Commission of Small Island States on Climate Change and International Law (Cosis) -- comprising Antigua and Barbuda, Tuvalu, Palau, Vanuatu, St Lucia, St Vincent and the Grenadines, St Kitts and Nevis, and Niue -- has requested the International Tribunal for the Law of the Sea (Itlos) to give an advisory opinion on the specific obligations of parties to the 1982 UN Convention on the Law of the Sea (Unclos).
Cosis demands the convention's members: (a) prevent, reduce and control pollution and the environmental impact caused by greenhouse gas (GHG) emissions such as ocean acidification and sea-level rise; and (b) protect and preserve the marine environment in relation to these climate change impacts. GHGs are atmospheric gases responsible for causing global warming by absorbing radiation from the Earth and trapping heat in the atmosphere.
Serving as a natural absorber of excessive global heat, the ocean accounts for more than 70% of the Earth's surface.
Global sea-level rises are caused by heat-induced expansion of ocean water and the melting of frozen water, such as glaciers or ice caps. Ocean acidification results from ocean warming, which affects the chemistry of the ocean water -- since less oxygen is dissolved in warmer water, ocean warming reduces the amount of oxygen available to marine life at different depths of the ocean.
NATIONAL VS GLOBAL INTEREST
More than 140 of the current 169 parties to Unclos have submitted their written statements to Itlos -- either individually or through the coordinated positions of Cosis, the European Union, the African Union and the Pacific Community, putting forward legal arguments to protect their respective national interests. Thailand, India and Argentina have not done so, whereas the United States cannot participate because the country is not a party to Unclos. All relevant international organisations have submitted their written opinions, so have several global NGOs. Oral hearings at Itlos will start on Sept 11, with the advisory opinion expected to be delivered in May next year.
The written statement by the United Nations refers to the intention of some states to maintain existing maritime zones notwithstanding climate change-induced sea-level rises. Micronesia, an island nation in the Pacific Ocean, urges Itlos to uphold this position that reflects the stance of all small island states.
Itlos will have to explain the specific obligations by states regarding pollution from all sources, including land-based pollution, pollution from shipping, pollution from the exploitation of marine resources and waste disposal and other matters.
Itlos will also apply international environmental law, international human rights law and international law. Indeed, a range of human rights which are in danger include the rights to life; home, privacy, and family life; a clean, healthy, and sustainable environment; food; livelihood; and culture. These perils are compounded for vulnerable populations, such as indigenous peoples, small islands, developing states and coastal communities. Climate change also harms land-locked states.
Several developing states are demanding that Itlos require developed states to deliver on their commitments under the international climate change regime regarding financial assistance, technology transfer and capacity building for the purpose of climate change mitigation and adaptation and to urgently explore making further commitments.
Some are demanding, pursuant to the "polluter pays" principle, full reparation by the states responsible for climate change in order to restore the marine environment to its pre-pollution condition or provide compensation to those harmed by the pollution. Others have sought an immediate halt to new fossil fuel projects and a full transition of the power sector to non-fossil fuel sources by mid-century. It is also suggested that stringent standards on vessel GHG emissions be adopted.
On March 28 this year, the UN General Assembly requested the International Court of Justice (ICJ) to render an advisory opinion on: (a) the obligations of states under international law to ensure the protection of the climate system and other parts of the environment from GHG emissions by humans for states and for present and future generations; and (b) the legal consequences for states where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to: (i) states, including, in particular, small island developing states; and (ii) peoples and individuals of the present and future generations affected by the adverse effects of climate change.
Since the ICJ will render its advisory opinion after Itlos has done so, the ICJ will be informed of Itlos' advisory opinion and, as usual, synergise with it.
Although advisory opinions are technically not legally binding, in practice, they are the most authoritative statements of the law that cannot be ignored. That is why so many states and interested entities are working hard to make their voices heard before the two world courts to ensure our world will be a much better place to live in.
Kriangsak Kittichaisaree is a judge of ITLOS, arbitrator, conciliator, and president of the 25th Meeting of States Parties to UNCLOS.
