Climate Change and the International Law of the Sea
Climate Change and the International Law of the Sea
Mapping the Legal Issues
Abstract and Keywords
This chapter provides an overview of the salient issues that arise in the interface between climate change and the international law of the sea. Sea-level rise resulting from climate change can cause the submersion of existing land territories, thereby raising complex issues of sovereignty and access to natural resources. Sea-level rise is also expected to change the existing boundaries of maritime zones, with concomitant political, economic, and security implications. The dumping of iron into the seas as a means of sequestering carbon similarly raises legal issues with respect to the application of specialized regimes dealing with dumping and the protection of the marine environment. The opening of navigation channels, such as the Northwest Passage, resulting from the melting of Arctic ice caps also poses legal questions. Finally, the applicability of the dispute settlement mechanism established in UNCLOS could also eventually attract claims relating to climate change.
The international law of the sea has been a dynamic field of international law throughout several centuries, and its flexibility to adapt to changes will once again be tested. (p.254) Environmental impacts on the oceans resulting from a changing climate, and the measures necessary to address these changes, are the new challenges that must be confronted.
The impacts of a changing climate on the marine environment are multifaceted and they carry serious political, economic, and security implications. On a number of issues, the challenges that climate change presents for law-of-the-sea governance are of a magnitude unforeseen in public international law. For example, sea-level rise resulting from climate change can cause the submersion of the land territory of an entire state, thereby raising complex issues of sovereignty, self-determination, migration, and access to natural resources.1
Climate change thus poses decisive challenges to the existing international legal structures governing the oceans, as established in the UN Convention on the Law of the Sea (UNCLOS)2 and other international law sources.3 Some issues may be approached within existing legal frameworks, while other issues may require new law. Whether the law of the sea will be able to respond to the climate change challenge will be a topical point of debate during the twenty-first century.
This chapter provides an overview of the salient issues involved in the interface between climate change and the law of the sea. These issues are elaborated in further detail in subsequent chapters in this unit on international ocean governance challenges. This overview is not meant to be comprehensive or detailed; rather, it intends to set the stage for the analysis that follows in this unit.
Section I of this chapter addresses sea-level rise and its impacts on two issues: statehood and baselines. The chapter then examines key provisions of part XII of UNCLOS pertaining to environmental protection,4 focusing on the reduction of emissions of greenhouse gases and the dumping of iron in the seas as a means of sequestering carbon. Section III considers marine biodiversity issues. Section IV examines the implications of melting polar ice for navigation, focusing on the legal issues pertaining to the potential opening of the Northwest Passage in the Arctic. Finally, Section V identifies the contours and key elements of UNCLOS part XV on dispute settlement,5 focusing on its potential application to potential climate change claims.
(p.255) I. Sea-Level Rise
In May 2013, the concentration of carbon dioxide (CO2) in the atmosphere exceeded the 400 parts per million mark, the highest level since 3 million years ago.6 Then, sea levels may have been as much as twenty meters above today’s levels.7 Global warming and climate change cause sea-level rise in two principal ways, namely thermal expansion, which refers to increase in volume as water warms, and the melting of glaciers on land.8
The Intergovernmental Panel on Climate Change (IPCC) concluded in its Fifth Assessment Report that “[g]lobal mean sea-level will continue to rise during the 21st century. Under all scenarios, the rate of sea-level rise will very likely exceed that observed during 1971 to 2010 due to increased ocean warming and increased loss of mass from glaciers and ice sheets.”9 The IPCC also estimated a maximum of 0.98m rise by 2100.10 Given the rates of melting in ice sheets in Greenland and Antarctica, many scientists conclude that sea-level will rise about one meter by 2100.11 An expert panel of NOAA adopted a two-meter rise as its highest of four scenarios by 2100.12 And if the Thwaites Glacier in West Antarctica flows to the sea, the rise would be more than three meters.13 Although uncertainty remains regarding the rate and extent of the rise, there is ample consensus that sea levels are rising as a result of climate change.
A. Loss of Statehood
Rising sea levels may mean that low-lying islands will become either submerged under the waters or uninhabitable for lack of access to fresh water. The Maldives in the Indian Ocean, for example, is composed of numerous islands that lie between one and 1.5 meters above sea level.14 The inhabitants of these islands depend on fresh water resources found within the atoll, which may become infiltrated by salt water due to sea-level rise.
(p.256) International law will face several unique challenges in addressing the issue of submerging States.15 First is the principle that sovereignty over the land territory gives rights over the appertaining seas and natural resources found therein, that is, the land dominates the sea.16 This principle has found expression in the law of delimitation, the creation of maritime zones, and the drawing of straight baselines, among other concepts and norms in the law of the sea.
Climate change potentially disrupts this principle, however, posing the question whether a new law of the sea could be developed on the basis of entitlements to the sea based on marine occupation, rather than land occupation. Technology may enable human communities closely tied to the marine environment to continue to use the seas, including with respect to natural resources. In such a case, there may be claims to territorial seas and other maritime zones not on the basis of appurtenance to the land, but on the basis of historical occupation and equity.
B. Shifting Baselines
Baselines perform a basic function in the law of the sea: they establish the points on the coasts from which the outer limits of the coastal State’s maritime zones are to be measured.17 Rising sea levels will impact the low-water lines along the coast that are used to define the normal baselines.18 Similarly, a changing coastal landscape will also impact straight baselines, given the criterion established in UNCLOS, which closely follows the International Court of Justice’s (ICJ) judgment in the Anglo Norwegian Fisheries case.19 (p.257) The Court in that case held that straight baselines should not depart to any appreciable extent from the general direction of the coast.20
Accordingly, shifting baselines resulting from sea-level rise will introduce changes in the maritime zones of the coastal State,21 namely, (1) the territorial sea,22 (2) the contiguous zone,23 (3) the continental shelf,24 and (4) the exclusive economic zone (EEZ).25 For example, access to, and conservation of, valuable living and nonliving natural resources found in the continental shelf or EEZ may provide a fertile ground for conflict among States. Similarly, standards pertaining to navigation, such as innocent passage in the territorial sea or freedom of navigation in the EEZ, may introduce sources of tensions.
Baselines also play a key role in delimitation between opposing or neighboring States.26 Thus, shifting baselines will destabilize existing boundaries between States, for example where they have been calculated on the basis of equidistance. More generally, shifting baselines will unsettle the stability, certainty, and predictability sought by maritime boundaries. In this regard, climate change and shifting baselines alter the notion that geography provides a stable basis for the determination of boundaries in the law of the sea.27
The shifting baselines problem is not simply one of topographic measurements in large-scale charts: it is also a political issue involving entitlement to territory and natural resources. Climate change therefore calls on the international community to revisit the basis upon which the maritime zones are calculated, in order to secure the rights of States that would otherwise suffer the loss of territory or access to natural resources.
II. Environmental Protection in UNCLOS
The Third UN Conference on the Law of the Sea was launched the year after the UN Conference on the Human Environment was held in Stockholm in 1972.28 Environmental (p.258) consciousness was capturing the imagination of the public and policymakers at a time when the deleterious impacts of transboundary air pollution such as acid rain were beginning to be felt. Thus, it is not surprising that UNCLOS addresses environmental protection in a comprehensive fashion. Although still lacking in a number of operative elements typical of a domestic environmental regime, part XII of UNCLOS reflects broad principles that enable international cooperation and progressive development of the law of the sea in addressing what was then a novel issue, environmental protection.29 Climate change will test whether part XII of UNCLOS is capable of withstanding, and responding to, the challenges posed by climate change.
A. Reduction of Emissions of Greenhouse Gases
Part XII of UNCLOS reversed the ancien régime wherein the seas could be used as a waste site, and affirmed in its stead the notion that the marine environment must be protected and preserved.30 This change in paradigm is evident in the first provision of part XII entitled general obligation: “States have the obligation to protect and preserve the marine environment.”31 The question thus arises whether such a general provision would suffice to require States to reduce emissions of greenhouse gases (GHGs) into the atmosphere, given the increasing scientific knowledge regarding the causal connections between land-based atmospheric contamination and the harm inflicted on the marine environment. The specific context of the inquiry thus largely refers to non-accidental damage to the marine environment resulting from the emissions to the atmosphere of GHGs within a State’s territory. In addition to this focus on land-based sources of GHGs, situations involving dumping and geoengineering call for inquiry,32 as do emissions of GHGs from vessels.33
The general obligation to protect and preserve the marine environment is followed by other general provisions of part XII, including measures to prevent, reduce, and control pollution of the marine environment.34 UNCLOS employs the following formulation: “States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment […].”35 This construct benefits from an explicit definition (p.259) of “pollution of the marine environment” in UNCLOS article 1 as “the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.”36
Whether climate change emissions satisfy the UNCLOS definition of pollution raises several issues. A first approach could distinguish between direct and indirect introduction of substances into the marine environment. For example, the precipitation of certain chemicals from the atmosphere into the seas resulting in ocean acidification could be regarded as a form of direct introduction of pollution, while the melting of inland glaciers resulting in accelerated sea-level rise could be addressed as a form of indirect introduction of pollution. Second, the UNCLOS definition also presents the questions of what “substances,” such as CO2 and other GHGs, have been introduced to the marine environment, in what quantity, and in what way. Yet another issue relating to the definition of pollution in the climate change context relates to the deleterious effects on the marine environment, including harm to coral reefs and migratory species, resulting from climate change.
The obligation to avoid causing damage by pollution is similar to the general obligation in international environmental law to avoid causing transboundary environmental harm, although it is focused on damage to other States and their environment.37 Whether this general obligation is capable of effectively addressing climate change emissions remains an open question, however.38 If the answer were to be affirmative, then claims of responsibility and liability under this head could be presented in the context of dispute settlement, addressed further below.
One of the elements of the controversy relating to the customary law obligation not to cause transboundary harm, including harm to the global commons, is its formulation as a due diligence standard.39 By contrast to a strict liability standard, which would attach liability to a State where its activity is causally connected to environmental harm, a due diligence standard examines the conduct of the State in relation to the foreseeable risks involved.40 In applying a due diligence standard, several issues must be examined, (p.260) including: the State’s material capacity to control activities within its territory,41 measures adopted to prevent foreseeable harm,42 and precautionary measures in situations of insufficient evidence.43
The Seabed Disputes Chamber of the International Tribunal for the Law of the Sea, in its 2011 Advisory Opinion on Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area, noted that due diligence is a variable concept. Emphasis on variability in the conceptual construct of due diligence allows, indeed calls for, consideration of the particular issues and context of the problem under scrutiny; in this instance climate change. The Seabed Disputes Chamber further noted that due diligence may change over time in relation to the risks involved and in light of new scientific and technological knowledge.44
The application of a due diligence standard to the climate change problem raises several issues. First of all, in regards to State conduct, a key question is the extent to which the State has adopted effective measures of prevention based on the best scientific evidence available, including a legal framework governing GHG emissions. The existence of an international regulatory scheme setting clear limits on the emission of GHGs to the atmosphere would further aid in evaluating the adequacy of the internal legal framework of the State. Second of all, in regards to material capacity, one of the crucial questions pertains to the level of development and resources available to the State. The relevance of the level of development and material capacity is reinforced in the principle of common but differentiated responsibilities and respective capabilities established in the UN Framework Convention on Climate Change (UNFCCC).45 The greater the availability of resources and concomitant capacity to effect climate change mitigation, the higher the diligence due. This notion of due diligence also finds strong support in considerations of equity on the basis of historical contributions to the concentration of GHGs in the atmosphere.
In addition to the difficulties of proving breach of due diligence in relation to conduct and capacity, the standard also requires evidence of environmental injury and causal (p.261) connection between the harm and State conduct. In regards to evidence of harm to the marine environment, negligible impact is not the type of environmental damage that would qualify as a viable international claim. At the same time, international customary law does not establish with precision the requisite threshold of harm. Therefore, evidence that shows appreciable or serious injury is central to a viable claim. Given the negative impacts of climate change on the marine environment highlighted elsewhere in this volume,46 the application of the due diligence standard is less likely to present difficulties in the gathering of relevant evidence of harm; rather, it is likely to hinge on whether the harm is sufficiently serious as to present a cognizable claim.
Regarding the causal link required between the emissions arising in one country and environmental harm, the climate change context involves a situation where a number of States are contributing GHG emissions that result in harm to the marine environment. Would application of the Monetary Gold standard, subjecting the valid exercise of jurisdiction to the consent of each and every country whose conduct is relevant to the subject matter of the decision,47 defeat a climate change claim? In other words, would jurisdiction pose an insurmountable bar to the viability of an international climate change claim, given that an international tribunal’s exercise of jurisdiction would arguably determine the legality of conduct not only of the respondent, but would also affect the legal interests of States not parties to the dispute? Alternatively, would Barcelona Traction’s emphasis on erga omnes48 obligations due to the international community as a whole49 underscore the common interests at stake in climate change litigation? Would the erga omnes character of the obligation provide jus standi50 to an injured State, or to a State other than the injured State?51 The ability of international law to effectively answer these questions in the face of the serious climate change challenge appears to be a litmus test regarding the effectiveness of international law.
Given the difficulties involved in operationalizing the general obligation to protect and preserve the marine environment for specific environmental issues, such as operational pollution from vessels, dumping, and land-based sources of pollution, part XII of UNCLOS established a framework of authority that enables international (p.262) cooperation.52 This approach is characteristic of UNCLOS as a framework convention, a model that has been replicated in varying forms in several international environmental agreements.53
The specific context of land-based pollution from and through the atmosphere that results in harm to the marine environment contemplates a general formulation: “States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources.”54 The text makes it plain that the obligation is to adopt laws and regulations; thereby it signals a due diligence standard. A subsequent paragraph in that same provision states: “Laws, regulations, measures, rules, standards and recommended practices and procedures […] shall include those designed to minimize, to the fullest extent possible, the release of toxic, harmful or noxious substances, especially those which are persistent, into the marine environment.”55 The use of the words “to the fullest extent possible” employed in this provision again highlights and qualifies the due diligence standard applicable in this area.
A similar legal construct emphasizing contextual elements56 is apparent in the structure and text of the provision in part XII concerning measures to prevent, reduce, and control pollution of the marine environment.57 This provision states: “The measures taken pursuant to this Part shall deal with all sources of pollution of the marine environment. These measures shall include, inter alia, those designed to minimize to the fullest possible extent: (a) the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping.”58 Here, the wording “designed to minimize to the fullest possible extent” again suggests a due diligence standard.
Although part XII is largely designed to offer a framework for cooperation for the elaboration of more detailed regimes for the protection of the marine environment, the obligations established in part XII would be deprived of much of their legal value if they were interpreted as mere programmatic aspirations. Still, the application of general obligations to the climate change mitigation context must overcome formidable obstacles, as examined above, evincing the weaknesses of the legal tools available in UNCLOS to address climate change. The law in this area thus needs to be strengthened, so that the commitment of the international community to the protection of the (p.263) marine environment, expressed in UNCLOS and in the Rio+20 UN Conference on Sustainable Development, can transition from words to reality.
B. Iron Dumping in the High Seas
Ocean iron fertilization (OIF) refers to a controversial form of geoengineering to reduce atmospheric carbon dioxide.59 OIF would involve the spreading of iron dust into the ocean in order to promote the growth of phytoplankton that would draw CO2 out of the atmosphere.60 OIF has raised several concerns, including (1) whether it would actually work effectively, (2) whether manipulating large ecosystems could result in serious environmental harm, and (3) whether it would even be possible to measure and verify any carbon reductions.61
Field tests conducted since 1993, including in the eastern equatorial Pacific, have not delivered the results expected by the proponents of this technique.62 Nevertheless, in 2007, the Weatherbird II departed from Fort Lauderdale, Florida, in the initial phase of a large-scale OIF expedition named “Voyage of Recovery.”63 The owner of the vessel, Planktos Corporation, planned to dump up to 600 tons of iron in a 10,000 km2 portion of the eastern equatorial Pacific Ocean.64
The United States notified the Scientific Groups of the London Convention and Protocol65 of Planktos’ activities and invited them to take appropriate action.66 Subsequently, the Meeting of the Contracting Parties to the London Convention considered the issue, agreed that the OIF is covered by the London Convention and Protocol, in particular, in relation to their objective to protect the marine environment from all sources, and concluded that large-scale OIF projects were not currently justified.67
Nevertheless, OIF as a potential mitigation technique presents several legal questions. For instance, the London Convention and its 1996 Protocol apply to the elimination of (p.264) pollution caused by dumping.68 The definition of dumping in the London Convention and Protocol is virtually identical to UNCLOS. It defines dumping, in pertinent part, as “any deliberate disposal into the sea of wastes or other matter from vessels…,” but does not include “placement of matter for a purpose other than the mere disposal thereof, provided that such placement is not contrary to the aims of this Convention. …”69
This definition of dumping calls for a fresh reading of the aims of the London Dumping Convention. The challenge of climate change would raise issues such as (1) the relevance of the precautionary principle, (2) the holistic approach to pollution control and prevention from all sources, (3) the obligation to avoid transferring damage from one part of the environment to another, and (4) the duties regarding environmental impact assessment.
C. Carbon Capture and Storage
These issues relevant to the analysis of OIF involve broader systemic implications pertaining to carbon capture and storage. This mitigation technique would sequester carbon in the deep sea or in geological formations beneath the seabed. Carbon sequestration has raised significant controversy,70 mainly for two reasons: the potentially serious harmful effects of increased concentrations of CO2 in the marine environment, and the eventual return of the CO2 to the atmosphere through natural processes.
In 2007, the London Protocol asserted control over deep sea and sub-seabed carbon sequestration.71 An amendment was added to Annex 1 stating that “carbon dioxide streams may be considered as dumping if…disposal is into a sub-seabed geological formation. …”72 The amendment considers sub-seabed geological formations and excludes the deep sea bed.73 Therefore, the absence of deep sea carbon capture and storage from Annex 1 means that that specific practice is banned.
The examples of OIF and carbon capture and storage show the extent to which international environmental instruments may interact to respond to climate change issues. As discussed in the next section, similar issues are evident in connection with marine biodiversity.
(p.265) III. Marine Biodiversity
The massive loss of biodiversity in the age of Anthropocene has been compounded by the challenges of climate change.74 Ocean acidification threatens the productivity and even the survival of coral reef ecosystems.75 Changing currents, water temperatures, and ice formations pose obstacles to the migration patterns of several species, including pelagic fish, marine mammals, and seabirds.76 Effective responses in international law have yet to be developed, however.
In the face of biodiversity loss, several questions need to be answered, including the following. How do instruments governing the protection of migratory species account for the impacts of climate change? More specifically, would the protection of habitat require measures to address climate change impacts?
Instruments and institutions governing fisheries face similar challenges. How do regional fisheries management organizations (RFMOs) account for climate change impacts in their modeling and conservation measures? This question raises related issues of uncertainty and the need for precaution in the management of species. A related question pertains to the ability of an RFMO to designate an area of the high seas under its jurisdiction as a protected area.77 Protected areas under the law of the sea raise issues of jurisdiction and maritime entitlement. In particular, the creation of protected areas in areas beyond national jurisdiction has been a hotly debated issue.78 The Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR) has made progress in this regard through the protection of the South Orkney Islands Southern Shelf,79 but has not yet managed to set up a system of protected areas.
The 2012 UN Conference on Sustainable Development (Rio+20) reaffirmed the value of marine ecosystems and biodiversity for present and future generations and (p.266) committed “to address, on an urgent basis, the issue of the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, including by taking a decision on the development of an international instrument under the Convention on the Law of the Sea.”80 A new instrument in this area would provide an opportunity for the international community to establish new and necessary tools to address the challenges that climate change poses to marine biodiversity.
IV. Melting of Polar Ice and Arctic Navigation
One of the notorious impacts of climate change is the melting of the polar ice cap during the Northern summer.81 The retreating ice poses an immediate threat to imperiled species, such as polar bears.82 The melting ice also makes commercial navigation possible in areas formerly covered by ice. This is the situation affecting the Northwest Passage, a sea route along Canada’s Northern islands that links the Atlantic and Pacific Oceans.83 The melting ice also presents the question whether special protection for Arctic waters is necessary in the new environment posed by climate change.
A. Is the Northwest Passage an International Strait?
Canada maintains that some of the waters of the Northwest Passage are under its full sovereignty as part of Canadian internal waters.84 Internal waters are those waters found inland from the relevant baselines; generally there is no right of innocent passage along those waters, unless straight baselines enclose waters that had been used for navigation.85 The United States, by contrast, argues that the Northwest Passage is an international strait that is open to passage by vessels flying the flag of any State.86
There are a number of policy questions associated with this dispute, including commercial, environmental, and security considerations. From a commercial perspective, the reduction in about 1,000 nautical miles distance, and the concomitant days, required to complete the voyage between the Atlantic and Pacific Oceans, as compared with the use of the Panama Canal, significantly reduces the cost of transport of goods that enter international trade.87 From an environmental perspective, the operational pollution as (p.267) well as the risk of accidents associated with navigation in a fragile ecosystem presents serious concerns.88 From a security angle, the potential entry of terrorists, pirates, or other unlawful groups into Canadian territory, or their passage through the waters of the Northwest Passage, also raises serious concerns.89
The dispute also presents several interesting legal questions, perhaps the most critical of which pertains to the definition of a strait under customary international law and UNCLOS. Part III of UNCLOS addresses the regulation of straits used for international navigation.90 A key threshold question is thus whether the Northwest Passage is a strait used for international navigation, and critically whether such use is actual or potential use. Potential use as the criterion to define an international strait would call for cartographic and commercial evidence relating to the feasibility of navigation through the sea route. An actual use criterion, by contrast, would require evidence of actual passage by vessels.
As the Northwest Passage has been covered by ice for most of recorded history, only icebreakers and submarines have completed the voyage.91 Climate change, however, is presenting a new scenario. In September 2013, the MS Nordic Orion, a Danish bulk carrier flying the flag of Panama, became the first large sea freighter (carrying 73,500 tons of cooking coal) to complete the voyage through the Northwest Passage.92
B. Special Protection for Arctic Waters
In light of the fragility of ice-covered ecosystems, UNCLOS contemplates the possibility of coastal States adopting laws and regulations for the prevention, reduction, and control of pollution from vessels in ice-covered areas within the limits of the EEZ.93 This provision raises several interpretative questions that are beyond the scope of this chapter. What is, however, relevant for this discussion is that the International Maritime Organization adopted non-binding Guidelines for Ships Operating in Arctic Ice-Covered Waters that set out construction, equipment, operational, and environmental provisions with special consideration for the risks of navigating in the ice-covered (p.268) waters of the Arctic.94 In light of increased navigation expected in Arctic waters as a result of climate change, the question surfaces whether these guidelines should be transformed into a binding legal regime.95
V. Dispute Settlement in UNCLOS
Part XV is an integral element of UNCLOS that sets out a comprehensive framework for settlement of disputes relating to the law of the sea.96 Part XV establishes compulsory jurisdiction whereby States consent to submitting UNCLOS-related disputes to international adjudication, albeit subject to certain exclusions.97 Part XV thus serves basic functions in the legal regime governing the oceans. Part XV preserves the balance between rights and obligations established in the Convention. Part XV also establishes a governance arrangement that can contribute to the progressive development of the law.
An examination of climate change issues under part XV must consider two broad and intertwined issues: jurisdiction and substantive claims. On jurisdiction, a key question is whether part XV establishes compulsory jurisdiction with respect to claims pertaining to climate change and the law of the sea. On substantive claims, the relevant questions relate to the causes of action and theories that could be articulated in relation to climate change and the law of the sea. These issues are examined in turn.
The jurisdictional gateway of part XV is established in the interplay of several provisions, and their application to climate-change-related claims would need to positively overcome several hurdles. The first such hurdle is found in article 281(1) of the Convention. Article 281(1) provides that the compulsory dispute settlement mechanisms of part XV will operate only where disputing parties have not reached settlement of the dispute in accordance with any means they have agreed to, and the agreement of the parties does not exclude any further procedure.98
This provision thus calls for careful analysis of the essential character of a dispute involving both climate change and the law of the sea. In simplified terms: Is it a law-of-the-sea dispute, a climate change dispute, or both? A defendant seeking to exclude jurisdiction is likely to argue that the climate change dispute falls only marginally under (p.269) UNCLOS, if at all, and that the climate change dispute essentially pertains to the UNFCCC, which provides for a different dispute settlement mechanism that excludes recourse to compulsory adjudication under part XV.99 This line of argumentation would be analogous to Japan’s position in the Southern Bluefin Tuna arbitration conducted under Annex VII of part XV.100 In that case, the Annex VII arbitral tribunal concluded that the disputing parties had agreed to seek settlement of the dispute under the terms of a regional fisheries convention that excluded any further procedure not accepted by all disputing parties, and accordingly dismissed the claims for want of jurisdiction.101
By contrast, the claimant would likely argue that the dispute concerns the protection of the marine environment and thus arises under UNCLOS. The claimant also would likely attempt to distinguish its case from the Southern Bluefin Tuna arbitration based on the subject matter of GHG emissions and marine pollution, the interplay of the various instruments involved, and the global dimension of the environmental threat. The claimant may also argue that the UNFCCC does not constitute a bar to part XV jurisdiction with respect to violations of UNCLOS.
The debate over the framing of the dispute in relation to article 281 would be influenced by another key jurisdictional provision: article 288. This provision establishes broad jurisdiction for the dispute settlement procedure with respect to two key sources. The procedure may exercise jurisdiction to address any dispute concerning: (1) the application or interpretation of UNCLOS (submitted consistently with part XV), and (2) the application or interpretation of an international agreement consistent with the purposes of UNCLOS (submitted consistently with that agreement).102 This jurisdictional question is different from the question of applicable law addressed further below.
A key consideration to the questions raised by articles 281 and 288 pertains to the framing of the issues and the dispute. If the dispute is seen as essentially one over climate change and the UNFCCC, then part XV may be displaced by the dispute settlement mechanism of the UNFCCC. However if the essential character of the dispute is seen to involve marine protection issues governed by UNCLOS, then part XV may provide a jurisdictional basis.
If a UNCLOS/UNFCCC claim successfully overcomes the hurdle of article 281(1), part XV section 2, regarding compulsory procedures entailing binding decisions, enters into operation.103 A pivotal provision here is article 287, which concerns the choice of procedure for settlement of the dispute, namely: the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice (ICJ), Annex VII Arbitral (p.270) Tribunal, or Annex VIII Specialized Arbitral Tribunal.104 Annex VII arbitration is the default procedure if the parties do not otherwise agree on any procedure.105
Once the procedure is established, another relevant question is what law shall be applied. UNCLOS article 293(1) directs a court or tribunal exercising jurisdiction under part XV to apply UNCLOS and other rules of international law not incompatible with UNCLOS.106 It is likely that sources of international environmental law, including customary law and the UNFCCC, would be relevant applicable law, as part of this category of rules of international law not incompatible with UNCLOS.
B. Claims and Remedies
Does the law of the sea provide viable claims of State responsibility in the general context of climate change and the marine environment? In more specific terms, does the inadequate control of activities within a State’s territory that produces GHG emissions that result in harm to the marine environment breach any international obligation established in UNCLOS? The various options available to formulate the relevant legal questions raise conceptual and linguistic nuances that go beyond this chapter. Still, it is worth recalling that the framing of the question is most likely to have a material influence on the answer provided by a dispute settlement mechanism.
The discussion above107 regarding environmental protection and UNCLOS presents the key legal issues relevant to identifying a viable cause of action relating to climate change and the marine environment.
The discussion of remedies would center on cessation, restitution, and compensation, as these are the traditional tools established in general international law.108 From the outset it could be asked whether these remedies are sufficient or even adequate to address harm to the marine environment resulting from GHG emissions. For example, compensation could provide monetary resources to a State that has suffered injury, but these may be meaningless to the inhabitants of a State that has lost its territory in whole or part. Similarly, physical restitution may be impossible in the presence of irreversible harm.
Cessation, on the other hand, may provide a strong legal, moral, and political argument for a change in conduct.109 The strength of the argument, however, would hinge on the subject matter of the specific obligation found in breach. This discussion would involve the substantive analysis of part XII of UNCLOS discussed above. At the same (p.271) time, cessation would be incapable of preventing the impacts on the marine environment resulting from the GHGs already emitted to the atmosphere. Given the limitations of the traditional remedies established in the law of State responsibility, new concepts, tools, and methods may be necessary to effectively protect the marine environment from climate change.
This chapter has provided an introductory overview of the salient issues that arise in the interface between climate change and the international law of the sea. Sea-level rise resulting from climate change can cause the submersion of existing land territories, thereby raising complex issues of sovereignty and access to natural resources. Sea-level rise is also expected to change the existing boundaries of maritime zones, with concomitant political, economic, and security implications.
The UN Convention on the Law of the Sea establishes a general obligation to protect the marine environment, as well as more specific obligations pertaining to pollution, and these obligations may carry potential implications for the emission of greenhouse gases to the atmosphere. The dumping of iron in the seas as a means of sequestering carbon similarly raises legal issues with respect to the application of specialized regimes dealing with dumping and the protection of the marine environment. The opening of navigation channels as a result of the melting of Arctic ice caps such as the Northwest Passage also poses legal questions.
Finally, the applicability of the dispute settlement mechanism established in UNCLOS could also eventually attract claims relating to climate change. The chapter has explored the basic boundaries of these issues, with a view to setting the stage for the more detailed examination and analysis that follows in this unit. (p.272)
(1) See generally Rosemary Rayfuse, International Law and Disappearing States: Utilising Maritime Entitlements to Overcome the Statehood Dilemma (Univ. of New S. Wales Faculty of Law Research Series 2010, Working Paper No. 52, 2010), available at http://law.bepress.com/unswwps-flrps10/art52; Maxine Burkett, The Nation Ex-situ: On Climate Change, Deterritorialized Nationhood and the Post-Climate Era, 2 CLIMATE L. 345 (2011) (addressing climate change and statelessness).
(2) United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS].
(3) For example, the law on self-determination may be relevant in examining issues of sea-level rise and sovereignty, migration, and access to natural resources.
(5) Id. arts. 279–99.
(6) Robert Kunzig, Climate Milestone: Earth’s CO2 Level Passes 400 ppm, NAT’L GEOGRAPHIC (May 9, 2013), http://news.nationalgeographic.com/news/energy/2013/05/130510-earth-co2-milestone-400-ppm/.
(7) Tim Folger, Rising Seas, 224 NAT’L GEOGRAPHIC 30 (Sept. 2013), available athttp://ngm.nationalgeographic.com/2013/09/rising-seas/folger-text.
(8) John Theodore Houghton, GLOBAL WARMING: THE COMPLETE BRIEFING 146 (3d ed. 2004).
(9) INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 2013, SUMMARY FOR POLICYMAKERS: THE PHYSICAL SCIENCE BASIS WORKING GROUP I CONTRIBUTION TO THE FIFTH ASSESSMENT REPORT 23 (Thomas F. Stocker et al. eds., 2013).
(14) Hunt Janin & Scott A. Mandia, RISING SEA LEVELS: AN INTRODUCTION TO CAUSE AND IMPACT 96 (2012).
(15) See generally Rosemary Rayfuse, Sea Level Rise and Maritime Zones: Preserving the Maritime Entitlements of “Disappearing” States, in THREATENED ISLAND NATIONS: LEGAL IMPLICATIONS OF RISING SEAS AND A CHANGING CLIMATE (Michael B. Gerrard & Gregory E. Wannier eds., 2012); Moritaka Hayashi, Sea-Level Rise and the Law of the Sea: Future Options, in THE WORLD OCEAN IN GLOBALISATION: CLIMATE CHANGE, SUSTAINABLE FISHERIES, BIODIVERSITY, SHIPPING, REGIONAL ISSUES 187 (Davor Vidas & Peter Johan Schei eds., 2011); Jenny Grote Stoutenburg, Implementing a New Regime of Stable Maritime Zones to Ensure the (Economic) Survival of Small Island States Threatened by Sea-Level Rise, 26 INT’L J. MARINE & COASTAL L. 263, 271–75 (2011); Clive Schofield & I Made Andi Arsana, Imaginary Islands? Options to Preserve Maritime Jurisdictional Entitlements and Provide Stable Maritime Limits in the Face of Coastal Instability, 6th IHO-IAG ABLOS Conference, 6 (Oct. 26, 2010), available athttp://www.iho.int/mtg_docs/com_wg/ABLOS/ABLOS_Conf6/S2P1-P.pdf.
(17) R.R. CHURCHILL & A.V. LOWE, THE LAW OF THE SEA 25 (1983).
(18) David D. Caron, Climate Change, Sea Level Rise and the Coming Uncertainty in Oceanic Boundaries: A Proposal to Avoid Conflict, in MARITIME BOUNDARY DISPUTES, SETTLEMENT PROCESSES, AND THE LAW OF THE SEA 1 (Seoung-Yong Hong & Jon M. Van Dyke eds., 2009); David D. Caron, When Law Makes Climate Change Worse: Rethinking the Law of Baselines in Light of a Rising Sea Level, 17 ECOLOGY L.Q. 621, 634 (1990). See also Charles Di Leva & Sachiko Morita, Maritime Rights of Coastal States and Climate Change: Should States Adapt to Submerged Soundaries? (Legal Vice Presidency The World Bank, L. & Dev., Working Paper No. 5), available athttp://siteresources.worldbank.org/INTLAWJUSTICE/Resources/L&D_number5.pdf. (last visited July 16, 2014).
(19) Fisheries (U.K. v. Nor.), 1951 I.C.J. 116 (Dec. 18).
(20) See id.
(21) José Luís Jesus, Rocks, New-Born Islands, Sea Level Rise and Maritime Space, in VERHANDELN FÜR DEN FRIEDEN NEGOTIATING FOR PEACE-LIBER AMICORUM TONO EITEL 599, 602 (Jochen Abr. Frowein et al. eds., 2003).
(23) See id. art. 33.
(24) See id. arts. 76–85.
(25) See id. arts. 55–75.
(26) A.H.A. Soons, The Effects of a Rising Sea Level on Maritime Limits and Boundaries, 37 NETH. INT’L L. REV. 207, 216–18 (1990); Lewis M. Alexander, Baseline Delimitations and Maritime Boundaries, 23 VA. J. INT’L L. 503 (1982–1983).
(27) Davor Vidas, International Law and Sea Level Rise: The Role of the International Law Association, MEPIELAN EBULLETIN (Feb. 18, 2014), http://www.mepielan-ebulletin.gr/default.aspx?pid=18&CategoryId=4&ArticleId=174&Article=International-Law-and-Sea-Level-Rise-The-Role-of-the-International-Law-Association.
(28) John A. Duff, The United States and the Law of the Sea Convention: Sliding Back from Accession and Ratification, 11 OCEAN & COASTAL L.J. 1, 5 (2005–2006).
(32) See infra Subsection B.
(33) For a discussion of the regulation of GHG emissions from vessels, see generally International Council on Clean Transportation, Reducing Greenhouse Gas Emissions from Ships: Cost Effectiveness of Available Options, White Paper No. 11 (July 2011), available at http://www.theicct.org/sites/default/files/publications/ICCT_GHGfromships_jun2011.pdf.
(35) Id. art. 194.
(36) Id. art. 1(4).
(37) Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8, 1996); see TRANSBOUNDARY HARM IN INTERNATIONAL LAW: LESSONS FROM THE TRAIL SMELTER ARBITRATION (Rebecca M. Bratspies & Russell A. Miller eds., 2010); see generally XUE HANQIN, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW (2003).
(38) Palau Seeks UN World Court Opinion on Damage Caused by Greenhouse Gases, UN NEWS CENTRE (Sept. 22, 2011), http://www.un.org/apps/news/story.asp?NewsID=39710&Cr=pacific+island&Cr1#.U1hMgNz7GYQ.
(39) John H. Knox, The Boundary Waters Treaty: Ahead of Its Time, and Ours, 54 WAYNE L. REV. 1591, 1594 (2008).
(40) SS Lotus (France v Turkey) 1927 PCIJ (Ser. A) No 10; Alabama Claims Arbitration (United States/Great Britain) (1872) 29 RIAA 125, 129. See also Jan Arno Hessbruegge, The Historical Development of the Doctrines of Attribution and Due Diligence in International Law, 36 N.Y.U. J. INT’L L. & POL. 265, 283 (2003–2004); Riccardo Pisillo-Mazzeschi, The Due Diligence Rule and the Nature of the International Responsibility of States, in STATE RESPONSIBILITY IN INTERNATIONAL LAW (Rene Provost ed., 2002).
(41) International Law Commission, Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, UN GAOR 56th Sess., Supp. No. 10, U.N. Doc. A/56/10 (2001), Commentary to Article 3.
(42) Pulp Mills on the River Uruguay (Argentina v Uruguay),  ICJ Rep 14, ¶ 101.
(43) Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Seabed Dispute Chamber of the International Tribunal of the Law of the Sea, Case No 17, 1 Feb. 2011), ¶ 131.
(44) Id. ¶ 117.
(45) Id. ¶ 161 (“Principle 15 provides that the precautionary approach shall be applied by States ‘according to their capabilities’. It follows that the requirements for complying with the obligation to apply the precautionary approach may be stricter for the developed than for the developing sponsoring States.”). See also Mary J. Bortscheller, Equitable but Ineffective: How the Principle of Common but Differentiated Responsibilities Hobbles the Global Fight against Climate Change, 10 SUSTAINABLE DEV. L. & POL’Y 49 (2010).
(47) Monetary Gold Removed from Rome in 1943 (It. v. Fr., U.K., & U.S.), Preliminary Hearing, 1954 I.C.J. 19 (June 15); East Timor (Port. v. Austl.), 1995 I.C.J. 1 (June 30).
(48) Erga omnes refers to international obligations owed to the international community as a whole, and all States can be held to have a legal interest in their protection. See Commentary to Draft Articles on Responsibility of States for Internationally Wrongful Acts, ILC, art. 1 ¶ 4.
(49) Barcelona Traction, Light and Power Co., Ltd. (Belg. v. Spain), 1970 I.C.J. 3 (Feb. 5).
(50) Jus standi refers to the right of standing, that is, who has the right to appear before an international tribunal and present international claims.
(51) See Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess., Supp. No. 10, at 29, UN Doc. A/56/10 (2001), available at http://www.un.org/law/ilc.
(53) SeePeter H. Sand, UNCED and the Development of International Environmental Law, 8 J. NAT. RESOURCES & ENVTL. L. 209 (1992–1993).
(55) Id. art. 207(5) (referring to paragraphs 1, 2, and 4 of article 207).
(56) See Daniel Barstow Magraw, Legal Treatment of Developing Countries: Differential, Contextual, and Absolute Norms, 1 COLO. J. INT’L ENVTL. L. & POL’Y 69, 74–76 (1990).
(58) Id. art. 194(3)(a).
(59) Raphael Sagarin et al., Iron Fertilization in the Ocean for Climate Mitigation: Legal, Economic, and Environmental Challenges 2 (Nicholas Inst. for Envtl. Pol’y Solutions, Duke University, Working Paper No. 07-07, 2007), available athttp://nicholasinstitute.duke.edu/sites/default/files/publications/iron- fertilization-in-the-ocean-for-climate-mitigation-legal-economic-and-environmental-challenges-paper.pdf.
(62) James Peterson, Can Algae Save Civilization? A Look at Technology, Law, and Policy regarding Iron Fertizilization of the Ocean to Counteract the Greenhouse Effect, 6 COLO. J. INT’L ENVTL. L. & POL’Y 61, 74 (1995).
(63) Kalee Thompson, Carbon Discredit, POPULAR SCI. 55 (July 2008).
(64) See Catherine Brahic, Company Plans “Eco” Iron Dump off Galapagos, NEW SCIENTIST, June 25, 2007.
(65) Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Dec. 29, 1972, 26 U.S.T. 2403 [hereinafter London Convention].
(67) Large-Scale Ocean Fertilization Not Currently Justified, IMO NEWS, Nov. 1, 2008, at 13, available at http://www.imo.org/MediaCentre/NewsMagazine/Documents/2008/IMO_NEWS_1_2008_WEBweb.pdf.
(69) 1996 London Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Nov. 2, 1996, 36 I.L.M. 1, arts. 1(8), 2(9), 4(10) [hereinafter London Protocol].
(70) Nadine R. Hoffman, The Emergence of Carbon Sequestration: An Introduction and Annotated Bibliography of Legal Aspects for CCS, 29 PACE ENVTL. L. REV. 218, 220 (2011).
(71) Ann Brewster Weeks, Subseabed Carbon Dioxide Sequestration as a Climate Mitigation Option for the Eastern United States: A Preliminary Assessment of Technology and Law, 12 OCEAN & COASTAL L.J. 245, 261 (2007).
(72) Press Release, IMO, New International Rules to Allow Storage of CO2 under the Seabed (Feb. 9, 2007) (on file with author).
(74) Alexandra Scuro, Are GMOs Good or Bad Seeds in the Developing World?: A Discussion of the Growing Role of Developing Countries in the Debate over Climate Change and the Loss of Biodiversity, 18 FORDHAM ENVTL. L. REV. 369, 378 (2007).
(75) C. Mark Eakin et al., Global Climate Change and Coral Reefs: Rising Temperatures, Acidification, and the Need for Resilient Reefs, in STATUS OF CORAL REEFS IN THE WORLD 2008, at 29 (Clive Wilkinson ed., 2008), available athttp://www.reefbase.org/download/gcrmn_download.aspx?type=10&docid=13311.
(76) Lawrence R. Liebsman et al., The Endangered Species Act and Climate Change— Current Issues, SR021 ALI-ABA 227, 232 (2009).
(77) Erick J. Molenaar & Alex G. Oude Elferink, Marine Protected Areas in Areas beyond National Jurisdiction: The Pioneering Efforts under the OSPAR Convention, 5 UTRECHT L. REV. 5, 7 (June 2009).
(78) LEE KIMBALL, THE INTERNATIONAL LEGAL REGIME OF THE HIGH SEAS AND THE SEABED BEYOND THE LIMITS OF NATIONAL JURISDICTION AND OPTIONS FOR COOPERATION FOR THE ESTABLISHMENT OF MARINE PROTECTED AREAS (MPAS) IN MARINE AREAS BEYOND THE LIMITS OF NATIONAL JURISDICTION, SECRETARIAT OF THE CONVENTION ON BIOLOGICAL DIVERSITY, TECHNICAL SERIES NO. 19 v (2005).
(79) See Protection of the South Orkney Islands Southern Shelf, Conservation Measure 91-03 (2009), available at http://www.ccamlr.org/sites/drupal.ccamlr.org/files//91-03.pdf.
(80) G.A. Res. 66/288, ¶ 162, U.N. Doc. A/RES/66.288 (July 27, 2012).
(81) John Kostyack & Dan Rohlf, Conserving Endangered Species in an Era of Global Warming, 38 ENVTL. L. REP. 10203, 10204 (2008).
(82) Id. at 10206.
(83) Christopher Mark Macneill, Gaining Command & Control of the Northwest Passage: Strait Talk on Sovereignty, 34 TRANSP. L.J. 355, 358 (2007).
(84) Id. at 365.
(87) Id. at 390.
(91) See generally Rob Huebert, Climate Change and Canadian Sovereignty in the Northwest Passage in Canadian Arctic Sovereignty and Security: Historical Perspectives, Calgary Papers in Military and Strategic Studies, Occasional Paper No. 4, 383-99 (P. Whitney Lackenbauer, ed., 2011), available athttp://cpmss.synergiesprairies.ca/cpmss/index.php/cpmss/article/view/18.
(92) John McGarrity & Henning Gloystein, Northwest Passage Crossed by First Cargo Ship, the Nordic Orion, Heralding New Era of Arctic Commercial Activity, NAT’L POST (Sept. 27, 2013), available athttp://news.nationalpost.com/2013/09/27/northwest-passage-crossed-by-first-cargo-ship-the-nordic-orion-heralding-new-era-of-arctic-commercial-activity/.
(94) INTERNATIONAL MARITIME ORGANIZATION, GUIDELINES FOR SHIPS OPERATING IN POLAR WATERS 5 (electronic ed., 2010).
(95) See ØYSTEIN JENSEN, THE IMO GUIDELINES FOR SHIPS OPERATING IN ARCTIC ICE-COVERED WATERS: FROM VOLUNTARY TO MANDATORY TOOL FOR NAVIGATION SAFETY AND ENVIRONMENTAL PROTECTION? 19 (2007), available at http://www.fni.no/doc&pdf/FNI-R0207.pdf.
(99) United Nations Framework Convention on Climate Change, May 9, 1992, 1771 U.N.T.S. 10.
(100) See, e.g., Marcos Orellana, The Law on Highly Migratory Fish Stocks: ITLOS Jurisprudence in Context, 34 GOLDEN GATE U. L. REV. 459, 463 (2004).
(101) Southern Bluefin Tuna (N.Z. v. Japan; Austl. v. Japan), Jurisdiction and Admissibility, Award of the Arbitral Tribunal, 39 I.L.M. 1359 (2000).
(103) See id. arts. 286–296.
(104) Id. art. 287(1).
(105) Id. art. 287(1)(c).
(106) Id. art. 293(1).
(109) RODA VERHEYEN, CLIMATE CHANGE DAMAGE AND INTERNATIONAL LAW: PREVENTION DUTIES AND STATE RESPONSIBILITY 242–43 (2005).