Vague Cooperation and Financial Obligations for Climate Actions: ITLOS’s Missed Opportunity

[Luciana Maulida holds an LLM (Environmental Law) from Melbourne Law School and is an incoming PhD student at King’s College London, focusing on the intersection of international law and climate change]

The International Tribunal for the Law of the Sea (ITLOS or the Tribunal) issued a landmark unanimous Advisory Opinion (the Opinion) on climate change, on 21 May 2024. The Opinion addressed states’ obligations under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) to protect oceans from climate change impacts like ocean warming, sea level rise, and ocean acidification. This marks the first time an international court delivered a climate-related advisory opinion. The Inter-American Court of Human Rights (IACtHR) and the International Court of Justice (ICJ) are anticipated to issue similar opinions on states’ climate change obligations next year.

The Opinion was issued to respond to a request made by the Commission of Small Island States on Climate Change and International Law (COSIS or the Commission) submitted on 12 December 2022. The request aimed to clarify the specific legal obligations of UNCLOS State Parties regarding climate change mitigation and impacts on oceans and marine ecosystem under Part XII of UNCLOS, on the Protection and Preservation of the Marine Environment.

Specifically, the Commission posed two main questions regarding obligations under Part XII of UNCLOS, such as the obligations regarding:

a. prevention and control of marine pollution from climate change impacts; and

b. protection of the marine environment from climate change impacts.

The Tribunal unanimously confirmed its jurisdiction to provide the requested Opinion. It recognized anthropogenic GHG emissions as marine pollution under UNCLOS, including emissions from land-based sources, vessels, and atmospheric pollution.

In response to point (a), ITLOS affirmed that states have obligations to prevent, reduce, and control pollution by adopting measures informed by science and international standards, ensuring due diligence to prevent serious harm, and enacting and enforcing laws aligned with international agreements like the Paris Agreement. Additionally, states must prevent pollution from activities under their control, enact national regulations, cooperate internationally, control vessel emissions, cooperate globally, assist vulnerable states, and monitor and report pollution impacts.

In response to point (b), the Tribunal highlighted that the obligations to protect and preserve the marine environment from climate change impacts are interconnected with the obligations outlined in response to question (a). States must safeguard the marine environment by addressing pollution and climate change impacts, conserve vulnerable ecosystems, cooperate and consult on shared resources, conserve high seas resources, and mitigate risks from non-indigenous species (Article 196). These duties require rigorous due diligence, scientific-based measures, and adherence to precautionary and ecosystem approaches.

The Opinion has generally received positive responses from the international community. While it cannot single-handedly resolve the climate crisis, the ITLOS decision acts as a catalyst for both global and national action. It sets the stage for forthcoming opinions from the IACtHR and ICJ on climate change. However, the Opinion falls short in pushing for stronger cooperation, particularly in the critical area of finance, which is crucial for the protection, prevention, and control of the marine environment from the impacts of climate change.

Unpacking Cooperation Obligations under UNCLOS

Under Part XII of UNCLOS (Articles 192 – 237), the concept and explicit mention of ‘cooperation’ emerge in various articles. Article 194(1) underscores the necessity for joint efforts to prevent, reduce, and control pollution of the marine environment, while Article 197 emphasizes the importance of global and regional cooperation in ensuring the protection and preservation of the marine environment. This cooperation under UNCLOS, which is reiterated through the Opinion, encompasses several aspects including:

• developing contingency plans for responding to pollution incidents in the marine environment (Article 199),
• promoting studies, research, and exchange of information about pollution of the marine environment (Article 200),
• developing rules, standards, and recommended practices to prevent and reduce pollution (Article 201),
• assisting developing states through scientific and technical assistance such as supporting in training, supplying necessary equipment, enhancing manufacturing capacity (Article 202),
• preferential treatment for developing states in the allocation of appropriate funds and technical assistance (Article 203),
• cooperative arrangements for the prevention, reduction and control of pollution from vessels (Article 211).

The obligation of states under Part XII of UNCLOS is to take necessary measures using their available means and capabilities. ITLOS acknowledged the principle of common but differentiated responsibilities (CBDR), applied from the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement to UNCLOS. It affirmed that all states bear obligations for environmental protection, with developed states expected to undertake more substantial efforts in reducing emissions compared to developing states (Opinion, paras 227, 229).

ITLOS elaborated on the CBDR principle by discussing obligations of developed states to assist developing states, particularly those vulnerable to climate change impacts, in addressing marine pollution from anthropogenic greenhouse gas emissions through capacity-building, technology transfer, and scientific support (Opinion, paras 338, 339).

While UNCLOS emphasizes cooperation in regulatory, scientific, and technical aspects for protecting the marine environment, it lacks clarity on financial cooperation and assistance. The highly-anticipated Opinion did not provide clear financial-related obligations, resulting in a noticeable absence of explicit guidance on equitable financial support for developing nations.

Unclarified Financial Obligations

Fulfilling Part XII obligations of UNCLOS requires significant financial investments. Implementing effective climate efforts demands advanced technologies across various sectors: offshore wind farms, wave and tidal energy projects, sustainable fishing and aquaculture, as well as pollution reduction requires measures. These diverse needs highlight the urgent requirement for substantial financial support to ensure states can meet their obligations under UNCLOS effectively.

According to paragraph 76 of the Opinion, ITLOS acknowledges one of the aims of the Paris Agreement is to make finance flows consistent with a pathway towards low GHG emissions and climate-resilient development (Article 2(1)(c) of the Paris Agreement). Moreover, in line with Article 9(1) of the Paris Agreement, the Tribunal acknowledged the requirement for developed country Parties to provide financial resources to assist developing country Parties with respect to both mitigation and adaptation in continuation of their existing obligations under the UNFCCC.

However, finance is regarded as “other assistance” with weak wordings of “may include” in paragraph 336 of the Opinion. The Tribunal is of the view that financial assistance may be included as the obligation to provide developing states with support to promote the programmes and undertake the activities indicated in Article 202 of the Convention. It is evident that scientific, educational, and technical assistance entails financial implications. This highlights the need for more robust and explicit financial commitments to support developing countries, ensuring they can effectively participate in global efforts to protect the marine environment from negative climate impacts while meeting their obligations under UNCLOS.

Since 2009, developed countries have pledged to provide USD 100 billion annually for climate finance to support developing countries. However, at COP28, the UNFCCC and State Parties acknowledged a significant shortfall in meeting this pledge.

While financial assistance is available in the form of loans or grants, the emphasis should be on grants, offering sustainable pathways for developing countries to combat climate change without repayment obligations. Such grant-based financing isn’t charity; it’s an investment in global resilience, essential for safeguarding the futures of all nations. Yet, the OECD climate finance report shows that in 2022, 69% (USD 63.6 billion) of developed countries’ public climate finance was provided as loans, while only 28% (USD 25.6 billion) came as grants, indicating a significant reliance on loans.

There are numerous debates about the justification and ethical considerations of including loans as part of climate finance from developed to developing countries. Reliance on debt can lead to debt traps, stifling climate action and hindering development. Moreover, the use of loans as climate finance can entrap vulnerable and developing countries in a climate debt trap, with debt obligations to developed countries perpetuating a cycle of inadequate resources. Debt accumulation impedes governments’ ability to provide crucial public services in developing countries. According to UN Trade and Development, about 3.3 billion people live in nations where debt payments exceed spending on education or health.

The Tribunal had a significant opportunity to address and clarify the financial commitments made by developed countries since 2009 as part of the states’ obligations under UNCLOS through its Opinion. It could have emphasized that financial assistance should not take the form of loans but rather grants. This approach upholds climate justice and the CBDR principle, avoiding debt burdens that hinder developing countries’ climate efforts. Grant-based support fosters true international cooperation, empowering developing nations to build sustainable futures without crippling repayment obligations.

Concluding Remarks

The Opinion issued by ITLOS represents a significant step in clarifying states’ obligations under UNCLOS regarding climate change impacts on oceans. While ITLOS addressed key aspects like pollution control and environmental protection, it missed a crucial opportunity to provide clarity on financial cooperation and assistance.

Robust financial support is crucial for enabling states to effectively fulfill their UNCLOS obligations. The Opinion acknowledges the necessity of financial assistance for developing countries, as mandated by the Paris Agreement, yet lacks clarity on the modalities of such assistance. While loans are available, the emphasis should be on grants to avoid trapping vulnerable nations in a cycle of debt and inadequate resources.

The Tribunal squandered the opportunity to address this gap and affirm that financial assistance should align with principles of climate justice and CBDR, ensuring that developing countries can fulfill their obligations under UNCLOS without the burdensome loan payment obligations.