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WWF: Hearings in case brought by small island states a ‘significant step’ toward defining countries’ climate obligations


Commenting on the opening of public hearings at the International Tribunal for the Law of the Sea on the Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law, Pepe Clarke, Oceans Practice Leader, WWF International, said:  

“Small island states and coastal communities worldwide face immediate threats due to climate change and rising sea levels. These hearings represent a significant step toward defining the climate-related obligations of states under the UN Convention on the Law of the Sea. In its submission to the Tribunal, WWF argues these obligations include rapidly reducing emissions while conserving and restoring the marine environment.

“A healthy ocean can help keep our climate in balance, support economic development and allow habitats and wildlife to thrive. But this will only happen if states take action now to fulfill their obligations while the solutions are still within our grasp.” 

Information on the tribunal, the case and WWF’s brief:

  • A legal request from the Commission of Small Island States was lodged in December 2022 with the International Tribunal for the Law of the Sea (the Tribunal). The UN Convention on the Law of the Sea (UNCLOS) establishes the legal order applicable to the world’s seas and oceans. 
  • The public hearings will open on Monday 11 September at the Tribunal in Hamburg, Germany.
  • The Commission of Small Island States asked the Tribunal for an Advisory Opinion on what the specific obligations of the state parties to the Convention are: (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 in 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.
  • WWF submitted an amicus brief, also known as a friend of the court brief, to the Tribunal in June 2023. The brief is based on WWF’s scientific knowledge of the impacts of climate change on marine ecosystems and in the brief WWF argues that:
    a) UNCLOS is a living flexible framework, able to adapt to new continually changing challenges affecting the oceans; b) The Paris Agreement on climate change is relevant to the interpretation of the obligations under Part XII of UNCLOS; c) Greenhouse gases (GHGs) fall within the scope of “pollution” under Article 1.1(4) of UNCLOS; specifically, increased concentrations of GHGs in the atmosphere, and subsequently in the marine environment, result in ocean acidification and warmer seas; d) The obligation ‘to protect and preserve the marine environment’ under Article 192 of UNCLOS includes a duty to protect the ocean against climate change impacts. 
  • WWF submits that, given the best available science on climate change, state parties must move from taking steps to achieving results (so-called duties of result, rather than duties of conduct). This should include states: a) Preventing the grant of licenses for new oil and gas; b) Ensuring the sea is taken into account when putting together states’ climate reduction targets (NDCs) under the Paris Agreement, including the protection and restoration of blue carbon habitats; c) Ensuring mandatory environmental impact assessments are carried out for both land-based and marine projects that assess the likely impacts from GHGs on marine ecosystems; d) Identifying and limiting activities harmful to the climate, which also harm our oceans.
  • The case at the Tribunal is one of a number seeking clarity around states’ obligations in this space. In April this year the General Assembly of the United Nations requested an advisory opinion from the International Court of Justice (ICJ) on states’ obligations concerning climate change following a successful campaign led by island states such as Vanuatu. The ICJ process is expected to begin in earnest in January 2024 after the ITLOS process has run its course.  

Information on climate change and oceans:

  • About 70% of the Earth’s surface is ocean, which is critical to life on Earth and for regulating the global climate system. 
  • Due to its size and reflective capacity, the ocean has absorbed more than 93% of the heat generated by anthropogenic global warming since 1971 (see IUCN Explaining Ocean Warming report, p17).
  • The ocean has absorbed about 20 to 30% of the carbon dioxide produced by human activities since the 1980s, leading to ocean acidification. This has resulted in changes to ocean chemistry that are unprecedented in 65 million years (see WWF Climate, Nature and our 1.5°C future report, p12-13).
  • Excessive heat and energy warming the ocean is leading to a cascade of melting sea-ice, sea level rise, marine heatwaves, ocean acidification and deoxygenation which, cumulatively, is causing lasting impacts on marine biodiversity and increasing the risk of irreversible loss of marine and coastal ecosystems.
  • According to the IPCC, hundreds of local losses of species have been driven by increases in the magnitude of heat extremes and mass mortality events on land and in the ocean (see Intergovernmental Panel on Climate Change AR6 Synthesis Report, p15).
  • Coral reefs, which make up some of the most species-rich habitats on Earth, are suffering heavily: scientists expect major damage to reef-building corals with 1.5°C global warming and warm water corals to all but disappear above 2°C (see WWF Climate, Nature and our 1.5°C future report, p18).
  • The loss of nature in our ocean is also having severe impacts on people, particularly for the billions who rely on fish and other seafood for their primary source of protein, as well as livelihoods. 

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