Barrister Muhammad Muzahidul Islam :
The United Nations Convention on the Law of the Sea was signed at Montego Bay, Jamaica, on December 10, 1982 and entered into force on November 16, 1994.
Under this Convention, the International Tribunal for the Law of the Sea (ITLOS) was established to interpret and apply the provisions of the Convention in adjudicating cases related to the seas or oceans that come within the scope of this Convention.
The question is – how should the provisions of the Convention be interpreted and applied in the judicial process?
Here I would like to share an advisory opinion provided by the International Tribunal for the Law of the Sea where the issues of ‘interpretation’ and ‘application’ of the provisions of the Convention mentioned above were relevant.
In an advisory opinion request submitted by the Commission of Small Island States on climate change and international law before the International Tribunal for the Law of the Sea (Case No- 31), amicus curiae briefs were submitted, on 30 May 2023, by three UN independent experts; they were the UN Special Rapporteurs on Human Rights and Climate change, Toxics and Human Rights, and Human rights and the environment.
According to the website of the OHCHR (Law of the Sea Tribunal’s judgment on marine environment and climate change underscores obligations, say UN experts) “GENEVA (23 May 2024) – The International Tribunal for the Law of the Sea’s first climate-related judgment provides timely guidance on States’ obligations on climate change and an explicit reference to human rights issues, UN experts said today.
Following the International Day for Biological Diversity, the experts released this statement after the Hamburg-seated Tribunal handed down an Advisory Opinion: “In our written comments presented to the Tribunal, we analysed how international human rights obligations are applicable to the protection of the marine environment from climate change, including preventing disproportionate impacts on those in vulnerable situations, particularly in Small Island Developing States. The Tribunal on 21 May made the unprecedented recognition that greenhouse gas emissions are a form of marine pollution.
The Tribunal also underscored that States have obligations under the law of the sea, which are additional to those contained in the 2015 Paris Agreement climate. The Tribunal further clarified that States have obligations to protect the marine environment from climate change impacts and ocean acidification.
They include designing mitigation measures to minimise, to the fullest extent possible, the release of toxic substances into the marine environment and exercising strict due diligence to ensure that non-State actors comply with mitigation measures.
In terms of international cooperation, the Tribunal underscored States’ obligations to prevent climate change-related pollution affecting other States and the environment beyond national jurisdiction.
States’ obligations further include joining in global efforts to address climate change and assist developing States, in particular, the vulnerable developing States. The Tribunal’s Opinion is particularly relevant for the implementation of the human right to a clean, healthy and sustainable environment.
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Notably, the Tribunal emphasises the precautionary and ecosystem approaches in the context of States’ obligations to conduct environmental and socio-economic assessments of any activity that may cause climate change-related marine pollution.
We welcome the Opinion’s guidance on the protection of marine biodiversity. For example, the Tribunal clarifies States’ obligations regarding: adaptation and ecosystem restoration; protection of rare or fragile ecosystems from ocean warming, sea level rise and ocean acidification; and the creation of marine protected areas.
These obligations are essential for climate change mitigation and adaptation, as well as for healthy ecosystems, to effectively and equitably tackle the triple planetary crisis that undermines the effective enjoyment of human rights.”
According to paragraph No-130 of the advisory opinion “The Tribunal notes that many participants in the present proceedings have emphasized the open character of the Convention and its constitutional and framework nature.
In the Tribunal’s view, coordination and harmonization between the Convention and external rules are important to clarify, and to inform the meaning of, the provisions of the Convention and to ensure that the Convention serves as a living instrument.
The relationship between the provisions of Part XII of the Convention, entitled “Protection and Preservation of the Marine Environment”, and external rules is of particular relevance in this case.”
