GREENHOUSE GAS EMISSIONS AS MARINE POLLUTION: ITLOS ADVISORY OPINION AND INDONESIA'S POSITION
By Setyawati Fitrianggraeni & Alicia Daphne Anugerah
Introduction
On May 21, 2024, the International Tribunal for the Law of the Sea (ITLOS) issued a landmark advisory opinion in response to a request from the Commission of Small Island States on Climate Change and International Law (COSIS). The opinion addresses critical legal questions regarding the obligations of States under the United Nations Convention on the Law of the Sea (UNCLOS) to prevent, reduce, and control marine pollution from greenhouse gas (GHG) emissions in the context of climate change.
This article explores the ITLOS advisory opinion that classifies GHG emissions as marine pollution under UNCLOS and examines Indonesia's nuanced position, which reflects a cautious interpretation of the current international legal framework.
Background of the Advisory Opinion
Small Island States, particularly vulnerable to the adverse effects of climate change—such as rising sea levels, ocean warming, and acidification—sought clarity on the legal obligations of States under UNCLOS. Represented by COSIS, nations including Antigua and Barbuda, Tuvalu, and Palau submitted two pivotal legal questions to ITLOS:
These questions aimed to determine whether States are obligated under UNCLOS to address the detrimental effects of climate change on marine environments, which are exacerbated by GHG emissions.
ITLOS's Findings
GHG Emissions as Marine Pollution
ITLOS ruled that anthropogenic GHG emissions contributing to ocean warming, sea-level rise, and ocean acidification fall under the definition of marine pollution as per UNCLOS. The tribunal interpreted that marine pollution encompasses any human activity introducing substances or energy into the marine environment that results or is likely to result in deleterious effects. Consequently, States are legally obligated to take action to prevent, reduce, and control such pollution, including regulating activities within their jurisdiction and cooperating internationally to combat climate change's detrimental effects on marine ecosystems.
State Obligations to Prevent and Control Pollution
The tribunal confirmed that UNCLOS imposes specific obligations on States to prevent, reduce, and control pollution from all sources, including land-based sources like industrial GHG emissions. Articles 192 and 194 of UNCLOS require States to take all measures necessary to prevent pollution that could harm the marine environment. ITLOS emphasized that these obligations are not limited to direct pollution (such as oil spills) but extend to activities that indirectly affect marine ecosystems through atmospheric emissions contributing to climate change.
Protection and Preservation of the Marine Environment
Addressing the second question, ITLOS elaborated on the broader obligation under Article 192 of UNCLOS for States to protect and preserve the marine environment. This includes addressing the causes of climate change (e.g., reducing GHG emissions) and adapting to its effects (e.g., implementing measures to protect coastal and marine ecosystems). The tribunal highlighted the necessity for international cooperation, as climate change is a transboundary issue affecting the marine environment globally. States are encouraged to adopt policies that contribute to the conservation of marine biodiversity and enhance the resilience of marine ecosystems against climate change impacts.
Indonesia's Position on the Advisory Opinion
Indonesia's written submission to ITLOS presents a significant and nuanced perspective on the obligations of States under UNCLOS concerning marine pollution from GHG emissions. Indonesia addresses both the jurisdiction of ITLOS and the specific obligations under UNCLOS.
Jurisdiction of ITLOS
Indonesia discusses whether ITLOS has the authority to issue an advisory opinion on this matter. Under Article 138 of the Tribunal's Rules of Procedure, ITLOS may provide advisory opinions on legal questions if requested by an international agreement related to UNCLOS's purposes. Indonesia argues that the Commission's request qualifies as a legal question seeking clarification on obligations under UNCLOS regarding marine environmental protection in the context of climate change. Indonesia supports ITLOS's jurisdiction, noting that the request meets the necessary criteria and there are no compelling reasons for the Tribunal to refuse rendering an advisory opinion.
Interpretation of Marine Pollution under UNCLOS
Indonesia's core argument revolves around the interpretation of Part XII of UNCLOS, which concerns the protection and preservation of the marine environment. While acknowledging that Part XII outlines States' obligations to prevent, reduce, and control pollution from various sources, Indonesia points out that UNCLOS does not explicitly address climate change or GHG emissions.
Definition of Pollution
Indonesia emphasizes that the definition of pollution in Article 1 of UNCLOS focuses on the introduction of substances or energy into the marine environment resulting in deleterious effects. The text defines pollution primarily in terms of physical, chemical, or biological contaminants introduced by human activities. Indonesia argues that this definition does not explicitly encompass GHG emissions or climate change impacts, highlighting the distinction between direct pollution of the marine environment and broader atmospheric phenomena like climate change.
Absence of Climate Change in UNCLOS Negotiations
Supporting this argument, Indonesia refers to the negotiation history of UNCLOS. The treaty was negotiated between 1973 and 1982, a period when climate change was not a significant concern in international discussions. Therefore, climate change and its impacts were not contemplated during UNCLOS's drafting, explaining the absence of specific obligations regarding GHG emissions or climate change impacts in the treaty.
Obligations Under Part XII of UNCLOS
While acknowledging that UNCLOS imposes general obligations on States to prevent, reduce, and control marine pollution, Indonesia asserts that these obligations are not directly related to GHG emissions or climate change. Part XII requires States to take necessary measures to prevent pollution from land-based and sea-based sources, but Indonesia argues that these provisions do not explicitly address global issues like GHG emissions and their atmospheric effects on marine ecosystems.
Pollution from the Atmosphere
Indonesia interprets Article 212 of UNCLOS, which addresses pollution from or through the atmosphere, as limited to pollutants that directly impact the marine environment from the atmosphere (e.g., acid rain) and not encompassing global atmospheric phenomena like climate change. Indonesia stresses that climate change is an indirect, global process, whereas the pollution referenced in UNCLOS involves direct human activities introducing harmful substances into the marine environment.
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Climate Change Governed by Separate Legal Regimes
Indonesia asserts that obligations related to climate change are governed by separate legal regimes outside UNCLOS, namely the United Nations Framework Convention on Climate Change (UNFCCC) and its associated instruments like the Kyoto Protocol and the Paris Agreement. These agreements specifically address the regulation and reduction of GHG emissions. Indonesia notes that maritime-related emissions are already being addressed through sectoral agreements and organizations like the International Maritime Organization (IMO), which regulates emissions from shipping.
Conclusion
Indonesia concludes that UNCLOS does not impose specific obligations on States to prevent marine pollution caused by GHG emissions or to protect the marine environment from climate change impacts. In Indonesia's view, the Convention was not designed to address the climate-ocean nexus. Therefore, efforts to mitigate the impact of GHG emissions should be governed by separate legal frameworks tailored to global climate concerns, such as the UNFCCC and sectoral organizations like the IMO.
Implications and Reflections
The contrasting perspectives between ITLOS's advisory opinion and Indonesia's position highlight the complexities in interpreting international treaties like UNCLOS in the face of emerging global challenges like climate change. The ITLOS opinion sets a precedent for applying UNCLOS to address climate-related marine pollution, potentially influencing future negotiations and legal interpretations.
For Small Island States and other vulnerable nations, the ITLOS advisory opinion strengthens their ability to demand greater action from industrialized countries to reduce GHG emissions and protect marine environments. It underscores the urgent need for comprehensive and collaborative international efforts to mitigate and adapt to climate change's impacts on the oceans.
Authors
Setyawati Fitrianggraeni holds the position of Managing Partner at Anggraeni and Partners in Indonesia. She also serves as an Assistant Professor at the Faculty of Law, University of Indonesia, and is currently pursuing a PhD at the World Maritime University in Malm?, Sweden. Alicia Daphne Anugerah is a researcher in the Ocean Climate Research Group – Legal Lab at Anggraeni and Partners.
References
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