STATE OBLIGATIONS TO PREVENT MARINE POLLUTION FROM GREENHOUSE GAS EMISSIONS: INDONESIA’S POSITION ON ITLOS ADVISORY OPINION
Setyawati Fitrianggraeni, Alicia Daphne Anugerah*
Indonesia’s written submission to the International Tribunal for the Law of the Sea (ITLOS) regarding the obligations of States to prevent marine pollution from greenhouse gas (GHG) emissions is both nuanced and significant. It addresses the scope of the United Nations Convention on the Law of the Sea (UNCLOS), particularly its pollution and environmental protection provisions, in the context of climate change. This article will summarize Indonesia’s position, which reflects a cautious and careful interpretation of the current international legal framework.
1. Context of the Request for Advisory Opinion?
Indonesia’s position arises in response to the request for an advisory opinion made by the Commission of Small Island States on Climate Change and International Law (COSIS).[1] The Commission asked ITLOS to clarify the obligations of State Parties to UNCLOS concerning the prevention, reduction, and control of marine pollution caused by anthropogenic greenhouse gas (GHG) emissions.[2] The key legal questions posed by the Commission involved whether States are specifically obligated to prevent marine pollution caused by climate change effects such as ocean warming, sea-level rise, and ocean acidification, all of which are exacerbated by GHG emissions.[3]
Indonesia’s submission addresses both the jurisdiction of ITLOS in this matter and the specific obligations of States under UNCLOS.[4]
2. Jurisdiction of ITLOS
Indonesia begins by discussing whether ITLOS has the authority to issue an advisory opinion on this matter.[5] Under Article 138 of the Tribunal’s Rules of Procedure, ITLOS may provide advisory opinions on legal questions if they are requested by an international agreement related to the purposes of UNCLOS.[6] Indonesia argues that the Commission’s request qualifies as a legal question because it seeks clarification on legal obligations under UNCLOS regarding the protection of the marine environment in the context of climate change.[7]
Indonesia supports ITLOS’s jurisdiction in issuing the opinion, asserting that the request meets the necessary criteria under UNCLOS and ITLOS’s statutes.[8] Moreover, Indonesia notes that there are no compelling reasons for the Tribunal to refuse to render an advisory opinion, as the legal questions posed are valid and do not involve any existing disputes between states.[9]
3. Marine Pollution and Greenhouse Gas Emissions 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.[10] While Part XII outlines the obligations of States to prevent, reduce, and control marine pollution from various sources, Indonesia points out that UNCLOS does not explicitly address climate change or greenhouse gas emissions.[11]
?3.1. Pollution Defined under UNCLOS
Indonesia emphasizes that the definition of pollution in Article 1 of UNCLOS focuses on the introduction of substances or energy into the marine environment that results or is likely to result in deleterious effects.[12] The text defines pollution primarily in terms of physical, chemical, or biological contaminants introduced by human activities into the marine environment.[13]
Indonesia argues that this definition does not explicitly encompass greenhouse gas emissions or climate change impacts.[14] Specifically, they highlight the distinction between the pollution of the marine environment and climate change, which UNCLOS does not mention or regulate.[15]
?3.2. Absence of Climate Change in UNCLOS Negotiations
Indonesia further supports this argument by pointing to the negotiation history of UNCLOS.[16] The treaty was negotiated between 1973 and 1982, a period when climate change was not a major concern in international environmental discussions.[17] Therefore, climate change and its impacts were not considered during the drafting of UNCLOS, which explains why no specific obligations regarding GHG emissions or climate change impacts are found in the text.[18]
Given this context, Indonesia asserts that the impacts of climate change—such as ocean acidification and warming—were not intended to be included within the scope of marine pollution under UNCLOS, and as such, there are no specific obligations in the treaty related to mitigating climate change impacts.[19]
4. Obligations Under Part XII of UNCLOS
While Indonesia acknowledges that UNCLOS imposes general obligations on States to prevent, reduce, and control pollution of the marine environment, the country asserts that these obligations are not directly related to the issue of greenhouse gas emissions or climate change.[20] Part XII of UNCLOS requires States to take all necessary measures to prevent pollution from land-based and sea-based sources, but Indonesia argues that these provisions do not explicitly address the broader global issue of GHG emissions and their atmospheric effects on marine ecosystems.[21]
?4.1. Pollution from the Atmosphere
One of the critical aspects of Indonesia’s position is its interpretation of Article 212 of UNCLOS, which addresses pollution from or through the atmosphere.[22] Indonesia contends that this article is limited to pollutants that directly impact the marine environment from the atmosphere (such as acid rain or airborne pollutants) and does not encompass global atmospheric phenomena like climate change.[23] Indonesia points to the original intent behind the article, which was to address localized pollution events (e.g., oil spills, chemical discharges from ships, or nuclear fallout) rather than systemic issues like rising global temperatures caused by GHG emissions.[24]
Indonesia stresses that climate change is an indirect, global process, whereas the pollution referenced in UNCLOS involves more direct, specific human activities that introduce harmful substances into the marine environment.[25] ?
5. Climate Change: A Separate Legal Regime
Indonesia asserts that climate change obligations are governed by a separate legal regime outside UNCLOS, namely the United Nations Framework Convention on Climate Change (UNFCCC) and its associated instruments like the Kyoto Protocol and the Paris Agreement.[26] These agreements specifically address the regulation and reduction of greenhouse gas emissions.[27]
????????? 5.1. UNFCCC and Kyoto Protocol
Indonesia notes that the UNFCCC and the Kyoto Protocol are the appropriate frameworks for addressing global emissions of GHGs.[28] These instruments contain detailed provisions on mitigation, adaptation, and climate finance, which are aimed at reducing global emissions and addressing the impacts of climate change.[29] As such, the issue of reducing GHG emissions falls outside the scope of UNCLOS and should be dealt with under the UNFCCC.[30]
????????? 5.2. International Maritime Organization (IMO)?
Moreover, Indonesia refers to the role of the International Maritime Organization (IMO), which has taken steps to regulate emissions from shipping.[31] Indonesia highlights that the Kyoto Protocol specifically tasked the IMO with regulating emissions from ships, recognizing that maritime emissions contribute to climate change.[32] Thus, Indonesia contends that maritime-related emissions are already being addressed through sectoral agreements and organizations.[33]
6. Conclusion: No Specific Obligations Under UNCLOS for Climate Change
In conclusion, Indonesia believes that UNCLOS does not impose specific obligations on States to prevent marine pollution caused by greenhouse gas 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. Indonesia’s submission acknowledges the critical role of UNCLOS in regulating pollution from vessels, seabed activities, and land-based sources. Still, it maintains that climate change and global atmospheric pollution are issues best addressed through other legal frameworks, particularly the UNFCCC.
Indonesia argues that while UNCLOS provides general obligations for States to prevent and control marine pollution, these obligations do not extend to the effects of climate change, as the treaty does not specifically address the issue. Instead, Indonesia believes that the Kyoto Protocol, UNFCCC, and sectoral organizations like the IMO are the appropriate forums for addressing GHG emissions and their impacts on the marine environment.
In sum, Indonesia’s position reflects a strict interpretation of the scope of UNCLOS, emphasizing that the Convention does not impose specific obligations on States concerning climate change and that efforts to mitigate the impact of GHG emissions should be governed by separate legal frameworks tailored to address global climate concerns.
*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 Malmo, Sweden. Additionally,?Alicia Daphne Anugerah?is a researcher in the Ocean Climate Research Group – Legal Lab at Anggraeni and Partners
References :
[1] ????? Government of the Republic of Indonesia, ‘Written Statement Submitted by the Government of the Republic of Indonesia to the International Tribunal for the Law of The Sea Requested by the Commission of Small Island States on Climate Change and International Law for an Advisory Opinion’ [15 June 2023], para. 1, 3, pp. 1 (“Written Statement”).
[2] ????? Written Statement, para. 2, pp. 1; see also, Request for an Advisory Opinion Submitted by The Commission of Small Island States on Climate Change and International Law (Advisory Opinion) [21st May 2024] ITLOS Case Number 31, para. 3, pp. 5; para. 139, pp. 53.
[3] ????? Written Statement, para. 14-15, pp. 4; see also, para. 81, pp. 19.
[4] ????? Written Statement, para. 5, 7, pp. 2.
[5] ????? Written Statement, para. 9, pp. 2.
[6] ????? Written Statement, para. 10, pp. 2.
[7] ????? Written Statement, para. 12-15, pp. 3-4; see also, para. 30-31, pp. 7.
[8] ????? Written Statement, para. 13-14, pp. 3-4.
[9] ?????? Written Statement, para. 27-31, pp. 6-7.
[10] ???? Written Statement, para. 65-68, pp. 15-16.
[11] ???? Ibid.
[12] ???? Written Statement, para. 57, pp. 13.
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[13] ???? Written Statement, para. 57-58, pp. 13.
[14] ???? Written Statement, para. 54-56, pp. 13.
[15] ???? Written Statement, para. 57-64, pp. 13-15.
[16] ???? Written Statement, para. 49-56, pp. 12-13.
[17] ???? Written Statement, para. 49.
[18] ???? Written Statement, para. 50.
[19] ???? Written Statement, para. 56.
[20] ???? Written Statement, para. 68, pp. 16; see also, para. 72-73, pp. 17-18.
[21] ???? Ibid.
[22] ???? Written Statement, para. 61, pp. 14.
[23] ???? Written Statement, para. 62, pp. 14.
[24] ???? Written Statement, para. 63, pp. 15.
[25] ???? Written Statement, para. 64, pp. 15; see also, para. 58, pp. 13.
[26] ???? Written Statement, para. 74-75, pp. 18.
[27] ???? Ibid.
[28] ???? Written Statement, para. 75-81, pp. 18-19.
[29] ???? Ibid; see also, UNFCC, Art. 4(2)(a) and Kyoto Protocol, Art. 10(b), Art. 10(c), Art. 12(5)(b).
[30] ???? Written Statement, para. 81, pp. 19.
[31] ???? Written Statement, para. 80.
[32] ???? Ibid.
[33] ???Supra note? 31.
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