Will the Law Of The Sea (1982) — Safe The Climate?
Case 31 at the Sea Tribunal in Hamburg
Eventually, the UN Convention on the Law of the Sea (UNCLOS) is scrutinized by the International Tribunal on the Law of the Sea (ITLOS), commencing its task as Case 31, on Monday, 11 September 2023. The Tribunal is expected to issue an advisory opinion, as requested by “The Commission of Small Island States” (COSIS), formed by some Pacific and Caribbean countries, concerning:
“Climate Change and International Law”. The setup of COSIS was to serve this purpose.
Putting the Law of the Sea in focus, eventually, shall remind that it should have happened 30 years ago, when the Rio-Conferee 1992 issued the UN Framework Convention on Climate Change (UNFCCC), which is fundamentally flaulty, because not saying what the word CLIMATE stands for. A letter to the magazine NATURE criticized this (Volume 360, 26 November 1992, page 292), as it follows:
QUOTE: SIR — The Earth Summit in Rio de Janeiro and the earlier struggle for a Convention on Climate Change may serve as a reminder that the 1982 Convention on the Law of the Sea has its tenth anniversary on 10 December. It is not only one of the most comprehensive and strongest international treaties ever negotiated but the best possible legal means to protect the global climate. But sadly, there has been little interest in using it for this purpose. For too long, climate has been defined as the average weather and Rio was not able to define it at all. Instead, the Climate Change Convention uses the term ‘climate system’, defining it as “the totality of the atmosphere, hydrosphere, biosphere and geosphere and their interactions”. All that this boils down to is ‘the interactions of the natural system’. What is the point of a legal term if it explains nothing? For decades, the real question has been who is responsible for the climate. Climate should have been defined as ‘the continuation of the oceans by other means’. Thus, the 1982 Convention could long since have been used to protect the climate. After all, it is the most powerful tool with which to force politicians and the community of states into actions. UNQUOTE
Online: https://www.whatisclimate.com/1992-nature.html
More than 30 later the ITLOS gets involved in the subject, and it will be interesting to observe how the 21 sitting judges will handle the case and how they apply the “Law of the Sea” with regard to matters discussed as “climate change”. At this point it is to observe, that Tribunals considerations have to be based on COSIS request presented to them for an advisory opinion: which reads in full as it follows:
QUOTE: What are the specific obligations of State Parties to the United Nations Convention on the Law of the Sea (‘UNCLOS’), including under Part XII:
(a) 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 through ocean warming and sea level rise, and ocean acidification, which are caused by anthropogenic greenhouse gas emissions into the atmosphere?
(b) to protect and preserve the marine environment in relation to climate change impacts, including ocean warming and sea level rise, and ocean acidification. UNQUOTE
See: INCLOS Doc.: PR 327 https://www.itlos.org/fileadmin/itlos/documents/press_releases_english/PR_327_EN.pdf
The request can hardly be regarded as too narrow by indicating the range “from climate change, including through ocean warming and sea level rise, and ocean acidification”, which is basically to evaluated with regard to Article 192,
“States have the obligation to protect and preserve the marine environment”,
which outlines the ‘General Obligation’, of UNCLOS, Part XII (Marine Environment).
On the other hand, the mentioned issues are closely bound what is top in the scientific discussion (e.g. IPCC), with no regard to the missing definitions in the UNFCCC, and the point raised by the Letter to Nature, that driving force of climatic changes are insufficiently understood if the oceans are not thoroughly observed and understood.
But the tribunal may conclude that the causes of ocean warming can be defined as marine pollution, which could open the way to bringing successful proceedings for claims in international courts or affect national jurisdictions.
However, the oceans will receive greater attention, how much and with what result remains to be seen.
NOTE: A Guide to UNCLOS
https://www.bernaerts-sealaw.com/
In Russian & English: https://www.bernaerts-guide.de/
