As the devastating effects of climate change rage on, small island nations are disproportionately affected yet ill-equipped to combat the fallout; however, a new International Tribunal ruling could lead to real change.
Drone view of a devastating flood caused by Tropical Storm Ernesto in Puerto Rico, resulting in the submersion of a bridge.[1]
Small island developing states ("SIDS") represent the collection of nations most vulnerable to the effects of climate change.[2] Nations comprising this category include islands situated in nearly every ocean, from Haiti and Jamaica to The Maldives, Fiji, and Singapore.[3] The challenge facing these nations worsens each day as they are forced to bear the burden imposed by larger nations and corporations whose contributions to the warming of the planet continue to fuel devastating environmental conditions.[4] In addition to the vicious cycle of forceful weather impacting these SIDS, rising sea levels present a threat far worse than disaster: extinction.[5]
The marine impact of climate change can be seen through coral bleaching, rising ocean temperatures, increasingly disastrous and unpredictable weather, and, perhaps most detrimentally, rising sea levels.[6] For SIDS without high cliffs and coastlines, the threat of their lands falling below sea level grows more apparent every day, with each new tropical storm bringing that nightmare closer to reality.[7] This common threat affecting SIDS, together with other increasingly severe climate change issues, prompted the formation of the Alliance of Small Island States in 1990 ("AOSIS").[8] This alliance has made astonishing developments in international marine protection, despite a lack of support from major global powers.[9] AOSIS bolstered its efforts by signing the “Agreement for the Establishment of the Commission of Small Island States on Climate Change and International Law” (the “Agreement,” creating the “Commission”), which seeks to impose responsibility for failures in protecting the marine environment.[10]
The Commission enables members to seek advisory opinions on disputes over alleged failures by larger states to meet legal obligations imposed by various UN Climate Conventions and international treaties protecting the marine environment.[11] Importantly, the Agreement provides a potential avenue for the Commission to seek legal reparation for the SIDS harmed by the noncompliance of larger nations.[12] The Agreement allows the Commission to bring disputes to the International Tribunal for the Law of the Sea (“ITLOS”), where the Commission, on behalf of SIDS, may present failures by larger global powers to take reasonable measures to protect the marine environment, where such failures ultimately led to the SIDS’s detriment.[13]
In May 2024, ITLOS finally answered the lengthy call for an advisory opinion.[14] In this opinion, ITLOS determined that modern international law requires tangible action by the vast majority of United Nations member states globally aiming to actively prevent the harm resulting from climate change.[15] Referencing a United Nations Intergovernmental Panel on Climate Change report from 2023, ITLOS described the extensive damage a buildup of greenhouse gases had over time on the ocean.[16] A centrally important declaration in the advisory opinion involved ITLOS deeming greenhouse gas emissions to be a marine pollutant under the meaning of the United Nations Convention on the Law of the Sea (“UNCLOS”).[17] Signed by 170 of the 193 United Nations, UNCLOS obligates participating states to take “all measures . . . that are necessary” to thwart marine pollution, through deterrence and mitigation of harms caused by greenhouse gas emissions in their respective maritime jurisdictions.[18] States are also expected to act in accordance with the greatest available scientific research, as well as international rules and standards set by relevant international organizations, the United Nations Framework Convention on Climate Change and the Paris Agreement.[19] ITLOS additionally emphasized states’ obligations to assist developing and vulnerable states in need under UNCLOS.[20]
These duties not only outline a clear intention for international commitment to stricter climate regulations, but also develop a legal pathway for SIDS to receive assistance with the devastating toll large, highly pollutive industries and global superpowers have taken on their land. [21] Advisory opinions have authoritative weight in the international realm; the decision from ITLOS therefore bolsters recent efforts to hold the developed world accountable for the role it has played in climate change by requiring compliance moving forward.[22] UNCLOS provides for compulsory dispute resolution mechanisms allowing parties to raise legal issues regarding the agreement, and with the strength of the advisory opinion, there exists a realistic potential to successfully hold noncompliant parties accountable for the benefit of SIDS in the future.[23]
[1] Ricardo Arduengo, Aftermath of Tropical Storm Ernesto in Toa Baja (photograph), in Pictures of the Week, Reuters (August 15, 2024, 4:18 PM), https://www.reuters.com/pictures/photos-of-the-week/pictures-week-2024-08-15/.
[2] Daniel Brindis, What Next for the Alliance of Small Island States in the Climate Change Arena? 7 Sustainable Dev. L. & Pol’y 45, 45 (2007) (discussing the vulnerability SIDS face to climate change and natural disaster).
[3] Id. (listing states vulnerable to these effects and including information on which small island states are members of the AOSIS).
[4] Samudu Atapattu, Climate Change: Disappearing States, Migration, and Challenges for International Law, 4 Wash. J. Env’t L. & Pol’y 1, 2 (2014) (describing the major strain human impact on the climate is having on small island nations).
[5] Brindis, supra note 2, at 45 (outlining the challenges SIDS face from changing climate patterns and rising sea levels).
[6] Clive Schofield & Karen Scott, Why a New Ruling on the Law of the Sea and Climate Change Matters for Australia and Especially Our Island Neighbours, Conversation (May 24, 2024, 8:11 AM), https://theconversation.com/why-a-new-ruling-on-the-law-of-the-sea-and-climate-change-matters-for-australia-and-especially-our-island-neighbours-230682 (outlining the danger posed and the effects of climate change on the ocean and coastal areas that are heavily marine oriented).
[7] Id. (describing the extreme dangers posed to SIDS by rising sea levels and extreme weather).
[8] Brindis, supra note 2, at 45 (explaining the motivation for the creation of the AOSIS and the common challenges SIDS face due to climate change).
[9] Malgorzata Materna, Introductory Note to the Agreement for the Establishment of the Commission of Small Island States on Climate Change and International Law, 61 Int’l Legal Materials 739, 739 (2022) (outlining some of the major accomplishments in marine protections from climate change in International Law largely led by the AOSIS).
[10] Id. (explaining the establishment of the Agreement and its legal aims).
[11] Id. at 739–42 (explaining the purpose behind the creation of the Commission, the Commission’s ability to bring disputes against large nations that fail to fulfill legal obligations regarding marine protections from climate change, and the source of this power arising from Article 21 of the enabling statute of the International Tribunal for the Law of the Sea (“ITLOS”)).
[12] Id. at 739–44 (describing a pathway for legal remedy for SIDS suffering the effects of large nations contributing to climate change issues through seeking an advisory opinion from ITLOS, which would be heavily considered if AOSIS sought remedy in front of the International Court of Justice or other international courts including arbitration).
[13] Id. (explaining the potential pathway for SIDS to seek remedy in the international arena if in the future continued noncompliance of global powers continues to the SIDS detriment).
[14] J. Michael Showalter & Robert Middleton, 3 Recent Decisions to Note as Climate Change Litigation Heats Up, Law360 (May 31, 2024), https://plus.lexis.com/api/permalink/25a3c2e4-db27-4ebd-95d6-54ca70a6b818/?context=1530671 (introducing recent judicial opinions that impact climate change legal framework globally, including an analysis on the decision by ITLOS).
[15] Request for an Advisory Opinion Submitted by the Commission of Small Island States on Climate Change and International Law (Commission of Small Island States on Climate Change), Case No. 31, Advisory Opinion of May 21, 2024, ITLOS Rep. 1, 123–152 (describing the interpretation by ITLOS advisory opinion released in May of 2024 of the obligations of United Nations member states under the United Nations Convention on the Law of the Sea ("UNCLOS") related to climate change).
[16] Id. at 45–82 (explaining significance of climate change damage to the ocean and the risk and danger it poses).
[17] Id. at 110–152 (overviewing the interpretation of UNCLOS and how it applies to the Law of the Sea for signatory states).
[18] Id. at 128–150 (outlining the advisory solutions posed by ITLOS and the obligations placed on the signatory states).
[19] Id. at 138–152 (presenting states with guidelines to adhere to UNCLOS to direct to proscriptive actions required).
[20] Id. at 294–340 (describing other obligations imposed by UNCLOS as interpreted by ITLOS including assistance to SIS).
[21] Showalter & Middleton, supra note 14 (describing the impact of ITLOS's decision on the future of international law in relation to climate change).
[22] Schofield & Scott, supra note 6 (emphasizing the weight of advisory opinions in international dispute resolution in the past and portraying how it may be helpful for disputes arising under UNCLOS).
[23] Id. (conveying the ability of an advisory opinion to strengthen claims brought under the compulsory dispute resolution mechanisms common in the international legal framework within the United Nations).
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