Small island nations affected by the climate crisis will converge in Hamburg, Germany, today for a hearing at the International Tribunal for the Law of the Sea (ITLOS). The case, filed by the Commission of Small Island States on Climate Change and International Law (COSIS), marks the world’s first climate justice lawsuit focused on protecting the ocean.
The nations include the Bahamas, Tuvalu, Vanuatu, Antigua and Barbuda, among others. They gather to raise a fundamental question that could reshape climate policy on a global scale: Should greenhouse gas emissions absorbed by the ocean be considered pollution?
The ocean, often dubbed the Earth’s lungs and climate regulator, plays an integral role in the fight against climate change. It acts as a major carbon sink, absorbing 25% of carbon dioxide (CO2) emissions produced by human activities. Additionally, the ocean captures 90% of the associated heat, which helps regulate the Earth’s temperature. The ocean is responsible for producing approximately half of the world’s oxygen.
Given these critical functions, the case hinges on the argument that emissions absorbed by the ocean should be classified as pollution. Many countries are already bound by legal obligations under the United Nations Convention on the Law of the Sea (UNCLOS) to address marine pollution, which traditionally focused on physical contaminants like oil spills and plastics.
The nature of this case extends these obligations to encompass carbon emission reduction and the protection of marine environments already harmed by CO2 pollution. This would mark a shift in global environmental jurisprudence that acknowledges the interconnectedness of climate change and ocean health.
The small island states seek not only to protect their vulnerable coastal communities but also to offer guidance to nations worldwide regarding the necessary emission reductions to fulfil their commitments under the Paris Climate Agreement. The Paris Agreement strives to prevent global temperatures from rising more than 1.5°C (2.7°F) above pre-industrial levels, a threshold critical for preventing catastrophic climate impacts.
Tuvalu Prime Minister Kausea Natano, whose nation faces the threat of being submerged by rising sea levels, issued a statement: “Sea levels are rising rapidly, threatening to sink our lands below the ocean.”
Half of Tuvalu’s capital, Funafuti, is projected to be submerged by 2050.
The Paris Agreement falls short of addressing the more stringent 1.5°C limit associated with averting catastrophic climate change. While legally binding and focused on emissions reduction, the agreement does not impose obligations to adhere to this lower temperature target.
Payam Akhavan, the lead counsel and chair of COSIS’ committee of legal experts, pointed to this crucial gap in the Paris Agreement. He stressed that the case would rely on the principle of transboundary harm, drawing a parallel between toxic emissions from a chimney that crosses borders and carbon dioxide emissions.
Akhavan further noted that the affected states may become uninhabitable within a single generation, with many facing the looming threat of submersion due to rising sea levels.
