Developing nations look for legal routes to force climate action
Developing nations have turned to the international legal system in a bid to put pressure on nations to be more ambitious in their climate efforts, including work at the International Maritime Organization.
They are hoping that if UN work at the IMO and the UNFCCC fail to set tough targets that are in line with the Paris Agreement, it will provide another avenue to instigate change.
There are two separate actions that have been put forward.
In March this year Vanuatu led a call requesting the International Court of Justice to give an advisory opinion on the obligations of states in respect of climate change under international law.
Meanwhile a separate Coalition of Small Island States (COSIS) has been formed and put a similar request for an advisory opinion to a tribunal which exists to settle disputes relating to the UN Convention on the law of the sea.
While these two requests for an advisory opinion o not necessarily focus on shipping and the work at the IMO, there is understanding according to one green advocacy group, Opportunity Green, that if the outcomes of these requests fall in favour of developing countries it will enable them to force developed countries in a particular to take more action or even pay for their part in the climate problem.
The United Nations is certainly a complex set of about 15 entwined inter-governmental specialized agencies, all making decisions that can impact the other.
That is certainly clear in shipping as we know that the UN Framework Convention on Climate Change has pushed the IMO to strengthen its decarbonisation strategy, with even the World Bank putting in reports on how monies from shipping can be used to speed that up, and small island member states pushing a tribunal formed under the UN CLOS to make countries act to reduce the impact of the environment on the oceans, notably through a reduction on how shipping impacts it through its emissions.
It will be no surprise then that the heads of UNFCCC and the UN are keen to encourage member state representatives at the IMO to be ambitious when they come to London for the 80th MEPC meeting.
It is easy to get buried in the detail of the UN systems, let alone the hundreds of acronyms, but the overriding aspect of the various main UN agencies is that it is formed by the people sent to the meetings by the member states that are signatories to the UN, therefore members, and subsequent signatories to the UN bodies and conventions, such as UNFCCC and UNCLOS.
There has always been the hope that nation states will echo their sentiments at UNFCCC in other UN bodies, but this has been far from the truth. Time and time again politics has trumped environment.
COSIS for example is hoping to get clarity on how wording in UNCLOS, which has a specific text calling on states to ensure ships are environmentally sound and the oceans are unpolluted, can force countries to make their own rules, and importantly give them power to take other member states to the international courts or tribunals if they are not doing enough.
Devil in the detail
In 2021 two small island states created COSIS, the Commission of Small Island States and International Law. They were Tuvalu along with Antigua and Barbuda. Niue, Palau, St Lucia and Vanuatu have also joined the Commission. The role of COSIS is to seek legal means to force more action on climate change, particularly what obligations countries have concerning climate change.
One way this is being done is to use the text of the law of the sea. (UNCLOS: UN Law of the Sea). UNCLOS deals largely with the fair and just use of the oceans, but has two parts of interest here. One is that in its texts it tells countries that are signatories to it to agree to use, amongst other things a Tribunal or the International Courts of Justice to resolve disputes.
The other is articles of note are 211 relating to pollution from ships and 212, through the atmosphere, and then articles 217 and 218 on enforcement by flag and port states.
The tribunal mentioned is the Hamburg based International tribunal for the law of the sea. While its role is largely to deal with disputes, it can be used to give an opinion on how parts of UNCOS can be interpreted and used.
And this is what COSIS has done. It has asked for the Tribunal to give an opinion on the following:
“What are the specific obligations of UNCLOS signatories 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?”
Also, what obligations do signatories have to protect and preserve the marine environment in relation to climate change impacts, including ocean warming and sea level rise, and ocean acidification?
While this does not explicitly mention shipping, NGO legal expert Carly Fields at UK based Opportunity Green believes it is a key part of the interpretation, and the reason Opportunity Green has backed the COSIS request with its own supporting submission.
The point is, she says for the Aronnax Podcast, that this gives an opportunity for small island developing states and those nations most at risk to force developed countries to take more ambitious action.
Thi is also why, ahead of the IMO’s biggest meeting on building a new roadmap for shipping, the group has sent its support for the Tribunal to make an advisory opinion, so that if the IMO fails to deliver, developing nations have another avenue to pursue.
So if the work at the IMO fails to be ambitious enough, if the work in other areas if climate adaptation, mitigation and funding fail to address the key challenges, these countries can take to the courts and try to force, on a bilateral manner, any nation.