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A strip of land in Funafuti, Tuvalu. The low-lying South Pacific nation of about 11,000 people is deemed ‘extremely vulnerable’ to the climate crisis. Photograph: Mario Tama/Getty
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Small Island Nations Take High-Emitting Countries to Court in Landmark Climate Justice Case

A strip of land in Funafuti, Tuvalu. The low-lying South Pacific nation of about 11,000 people is deemed ‘extremely vulnerable’ to the climate crisis. Photograph: Mario Tama/Getty
A strip of land in Funafuti, Tuvalu. The low-lying South Pacific nation of about 11,000 people is deemed ‘extremely vulnerable’ to the climate crisis.
Photograph: Mario Tama/Getty

Countries threatened by rising sea levels are asking a tribunal to decide on responsibility for pollution of the marine environment


The landmark hearing in Hamburg, Germany, involving small island nations disproportionately affected by the climate crisis taking on high-emitting countries, marks a significant moment in the pursuit of climate justice and the protection of the ocean. Here’s a closer look at the key elements of this case:

  1. Parties Involved: The nations involved in this case, such as the Bahamas, Tuvalu, Vanuatu, Antigua and Barbuda, are among the most vulnerable to the impacts of climate change, particularly rising sea levels and ocean-related threats. They are seeking legal recourse against high-emitting countries they believe are responsible for their predicament.
  2. International Tribunal for the Law of the Sea (ITLOS): ITLOS is an international judicial body that specializes in maritime disputes and interprets the United Nations Convention on the Law of the Sea (UNCLOS). It is an appropriate forum for addressing issues related to the marine environment.
  3. Objective: The main objective of this hearing is to determine whether greenhouse gas emissions that are absorbed by the marine environment should be legally classified as pollution. This is a crucial point as it could have significant implications for holding high-emitting countries accountable for their contributions to climate change and its effects on the oceans.
  4. Legal Arguments: The small island nations are likely to present legal arguments based on international environmental law and UNCLOS. They may contend that the greenhouse gas emissions, primarily carbon dioxide (CO2) and methane (CH4), are causing harm to the marine environment, including ocean acidification and rising sea levels. They might argue that this constitutes pollution under existing international legal frameworks.
  5. Evidence: Scientific evidence and data will play a crucial role in this case. The nations may present research and expert testimonies to demonstrate how greenhouse gas emissions are affecting the oceans and causing harm to their territories.
  6. Implications: If the tribunal rules in favor of the small island nations and determines that greenhouse gas emissions in the marine environment constitute pollution, it could set a precedent for future climate-related cases. This could potentially lead to legal responsibilities for high-emitting countries to take more aggressive actions to reduce emissions and mitigate climate change.
  7. Enforcement: As with any international legal decision, the enforcement of the tribunal’s ruling may be challenging. It would require diplomatic and international pressure, as well as further negotiations to determine specific actions that must be taken by high-emitting countries to address the issue.

This case underscores the growing recognition of the link between climate change and the health of the oceans and demonstrates the willingness of affected nations to pursue legal avenues to seek justice and environmental protection. It also reflects the urgency of addressing climate change and its impacts on vulnerable regions, particularly small island nations facing existential threats due to rising sea levels and other climate-related challenges.

The significance of the ocean as a carbon sink and its role in climate regulation cannot be overstated. The statistics you provided highlight the ocean’s vital functions in absorbing carbon dioxide emissions, capturing heat, and producing oxygen. Recognizing this importance, most countries are indeed bound by obligations under the United Nations Convention on the Law of the Sea (UNCLOS) to take measures to prevent, reduce, and control marine pollution. These obligations extend to addressing the impacts of CO2 pollution on the marine environment.


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The case brought by the Commission of Small Island States on Climate Change and International Law (Cosis) is significant for several reasons:

  1. Carbon Emission Reduction: If successful, this case could establish a legal precedent that holds high-emitting countries accountable for their greenhouse gas emissions, even when those emissions are absorbed by the oceans. It would mean that nations have a legal obligation to not only reduce emissions but also consider the impact of those emissions on the marine environment.
  2. Protection of Damaged Marine Environments: The case’s success could require high-emitting countries to take measures to protect and rehabilitate marine environments that have been harmed by CO2 pollution. This could encompass addressing ocean acidification, coral bleaching, and other detrimental effects linked to excess CO2 absorption.
  3. Climate Justice: The case highlights the concept of climate justice, where countries disproportionately affected by climate change seek legal remedies against those primarily responsible for the emissions. It underscores the need for equity and shared responsibility in addressing the global climate crisis.
  4. UNCLOS as a Legal Framework: UNCLOS provides the legal framework for addressing issues related to the marine environment and pollution. This case underscores the relevance and significance of international environmental agreements in addressing contemporary challenges like climate change.
  5. Global Implications: A successful case could have far-reaching implications for climate policy and international efforts to combat climate change. It could encourage more robust climate action by high-emitting countries, including efforts to reduce emissions and invest in technologies that mitigate the impact of CO2 on the oceans.
  6. Awareness and Advocacy: The case raises global awareness about the interconnectedness of climate change and ocean health. It may encourage greater advocacy for ocean protection and climate mitigation efforts.

It’s worth noting that while legal actions like these are important tools for addressing climate change, they are only one part of a broader strategy that also includes diplomacy, international cooperation, and public engagement. The outcome of this case will be closely watched, as it may set a precedent for future legal actions aimed at protecting the environment and seeking climate justice.

Flooding in Funafuti, Tuvalu in 2019. Half of the capital will be flooded by 2050, estimates suggest. Photograph: Mario Tama/Getty Images
Flooding in Funafuti, Tuvalu in 2019. Half of the capital will be flooded by 2050, estimates suggest.
Photograph: Mario Tama/Getty Images

The states involved in this case are not only seeking to protect their territories from the impacts of climate change but also hope to set a precedent that can guide countries in meeting their commitments under the Paris Agreement. Here are some key points to consider:

  1. Meeting Paris Agreement Goals: The Paris Agreement aims to limit global warming to well below 2 degrees Celsius above pre-industrial levels, with an aspirational target of limiting it to 1.5 degrees Celsius. These island nations are advocating for emissions reductions that align with the 1.5-degree target, as they are acutely aware of the devastating consequences of even slight increases in global temperatures. The warning by scientists that the world may breach the 1.5-degree target by 2027 underscores the urgency of their plea.
  2. Sea-Level Rise and Climate Impacts: The prime minister of Tuvalu, Kausea Natano, highlights the real and immediate threats faced by small island nations due to climate change. Rising sea levels, extreme weather events, and the deterioration of marine ecosystems are directly impacting their communities, infrastructure, and ways of life. These nations argue that they are suffering from a “manifest injustice” caused by climate change, which is disproportionately caused by high-emitting countries.
  3. International Legal Action: These island nations are placing their trust in international courts and tribunals to address this injustice. They believe that international law should hold responsible parties accountable for their contributions to climate change and its impacts on vulnerable regions.
  4. Precedent and Guidance: One of their objectives is to establish a legal precedent that could guide countries in fulfilling their commitments under the Paris Agreement. A successful case could provide clarity on the level of emissions reductions necessary to prevent further warming and associated impacts, especially for nations that are vulnerable to climate change.
  5. Global Solidarity: The statements from leaders like Prime Minister Kausea Natano underscore the urgency of the climate crisis and the need for global solidarity in addressing its impacts. Small island nations are often at the forefront of climate change consequences, and their voices in international fora emphasize the moral imperative of taking swift and meaningful action to combat climate change.

Ultimately, this case represents a call for climate justice, emphasizing the need for accountability and action to prevent further harm to these vulnerable island nations and to ensure that the goals of the Paris Agreement are met. Its outcome will be closely watched by the international community and may have broader implications for climate policy and responsibility.

While the Paris agreement is a legally binding treaty requiring countries to reduce emissions and affirms the goal of limiting the global temperature rise to below 2C, it allows countries to set their own action plans.

“There are no obligations to keep temperature rise to within 1.5C, beyond which there is a high probability of catastrophic climate change,” said Payam Akhavan, lead counsel and chair of Cosis’s committee of legal experts.

The case will use the principle of transboundary harm, said Akhavan. “What’s the difference between having a toxic chimney spewing across a border to carbon dioxide emissions?

“Some of these states will become uninhabitable in a generation and many will be submerged under the sea.

“This is an attempt to use all the tools available to force major polluters to change course while they still can.”

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Source:

Karen McVeigh at The Guardian



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