The world's highest court covering the oceans issued a groundbreaking opinion Tuesday that excessive greenhouse gases are pollutants that could cause irreversible damage to the marine environment and must be reduced.
The advisory opinion of the court, the International Tribunal for the Law of the Sea, is non-binding, but stated that, legally, nations must take all necessary measures to reduce, control and prevent marine pollution caused by greenhouse gas emissions produced by man.
The tribunal's 21 judges were unanimous in their opinion, and experts say this could lead to broader damages claims against polluting nations.
The position taken by the tribunal, sometimes called the Oceans Court, will also likely influence how other international and national tribunals address the growing dangers posed by climate change.
The seas are vulnerable because burning fossil fuels releases greenhouse gases such as carbon dioxide into the atmosphere, warming the world and contributing to sea level rise by melting glaciers and ice sheets. Climate change also contributes to the warming and acidification of ocean waters, which affects marine life and the food chain, among other dangers.
The request for an advisory opinion was made by a group of small island nations that are already affected by rising sea levels as their coastlines erode or become uninhabitable and fresh water for drinking and planting crops becomes saline. The Court's opinion applies to the more than 165 countries that have ratified the United Nations Convention on the Law of the Sea, which includes major polluters such as China, Russia and India, but not the United States. (The Senate would not ratify the pact.)
The Convention is the legal framework governing the uses of the oceans and their resources, including the obligation to protect the marine environment.
The advice issued Tuesday effectively expanded the definition of marine pollution to include greenhouse gases. The convention, negotiated in the 1970s, does not mention these emissions and their adverse effects on the world's oceans, which is based on more recent scientific data.
“We didn't know how bad these emissions were in the 1970s,” said David Freestone, co-author of one study. World Bank report last year on the legal dimension of sea level rise which followed court hearings and debates. “At the time, people were worried about acid rain.”
Scientists say the time has come to protect the role of the oceans on the planet. The seas cover 70% of the earth's surface and provide half of the world's oxygen. They also absorb almost all of the excess heat generated by greenhouse gases and are warming faster than expected, driving further climate change.
Key questions addressed by the court included whether excessive greenhouse gases constituted “pollution of the marine environment” and, if so, whether countries can be held responsible for such pollution. The judges said yes to both.
The leaders of the island nations who sued argue that existing climate agreements have not made enough progress to prevent lasting damage to the oceans. They say that although they contribute only a small fraction of global emissions, they are already bearing the brunt of the catastrophic effects of climate change.
“We got everything we asked for; we now have an authoritative definition of states’ obligations to avoid irreversible harm,” said Payam Akhavan, the lead lawyer for the group of island nations, adding that the court “cited the best available science.”
The judges also appeared to side with island nations that had long sought help in vain, saying the most polluting nations bear a greater responsibility than small, vulnerable states and should provide them with financial aid and technical assistance.
Activists at the court, located in Hamburg, Germany, sent a series of messages applauding the decision. “For the first time, an international court has recognized that the fate of two global commons – the oceans and the atmosphere – are intertwined and imperiled by the climate crisis,” wrote Joie Chowdhury of the Center for International Environmental Law.
Activists are increasingly blaming governments and energy companies for climate damage and have recently won rulings in their favor. In April, Europe's highest human rights court unexpectedly set aside nearly 2,000 Swiss women over the age of 64 who had sued their government for failing to do enough to prevent climate change. They said their health was at risk during heat waves linked to global warming.
Two other institutions, the International Court of Justice and the Inter-American Court of Human Rights, were also asked for an advisory opinion on the legal implications of climate change. Their opinions will come later.
