Small Island States Leverage International Law in Pursuit of Climate Justice
A New Era of Climate Action
WASHINGTON, CMC – Insufficient attention has been given to the far-reaching actions taken by several small island states, led by Antigua and Barbuda and Tuvalu, to challenge the destruction of their countries by major global polluters.
Fighting for Climate Justice
In December 2022, these states boldly requested the first-ever advisory opinion on climate change from the International Tribunal for the Law of the Sea (ITLOS). This request sought clarity on states’ obligations under the United Nations Convention on the Law of the Sea (UNCLOS) to protect oceans from the adverse effects of climate change caused by greenhouse gas (GHG) emissions.
In May 2024, ITLOS delivered a historic, unanimous opinion confirming that GHG emissions constitute marine pollution, obligating states to take affirmative steps to protect the marine environment based on scientific evidence to prevent catastrophic harm. This opinion has allowed all states—not just small island developing states (SIDS)—to pursue climate justice. It is also likely to influence how international and national courts address climate change as other developing states push back against the threats to their countries caused by emissions from industrialized nations.
Audit Committee on Small Island States and International Law (COSIS)
Frustration with the inadequate outcomes of the annual Conference of the Parties (COP) of the United Nations Framework Convention on Climate Change (UNFCCC) led small states to take legal action. The COP meetings have been long on promises but short on meaningful deliverables. In 2021, on the sidelines of COP26, Antigua and Barbuda and Tuvalu took the initiative to establish the Commission on Small Island States and International Law (COSIS). COSIS was mandated to leverage international law to support SIDS’s fight for climate justice. The organization has since been joined by several other small states, motivated by the failure of global climate negotiations and their disproportionate vulnerability to rising sea levels.
Sea Level Rise and Food Security
Rising sea levels are one of the most urgent challenges these nations face. Global sea levels have increased by more than 10 cm between 1993 and 2024, threatening not only the physical existence of islands like Tuvalu and the Maldives but also posing immediate challenges to food security and displacement. Some projections indicate that by 2100, 5% or more of the land in small island states could be permanently submerged. With no international law obliging other states to accept climate refugees, these small island nations acted urgently to protect their populations from the looming prospect of displacement.
Legal Action and International Law
Through COSIS, nine small island states turned to international law for redress. Forty states and international organizations participated in the ITLOS proceedings, and the 2024 opinion is expected to set a significant legal precedent.
While advisory opinions are not directly enforceable, they provide authoritative interpretations of international obligations. In practice, such rulings create legal precedents influencing how future cases are judged in global and domestic legal systems. The ITLOS opinion not only shapes the understanding of climate obligations under UNCLOS but could also provide the foundation for future compensation claims from affected nations against significant emitters.
Broader Applications
This opinion has already found broader application in other critical cases.
In January 2023, Chile and Colombia requested an opinion from the Inter-American Court of Human Rights on state parties’ obligations under the American Convention on Human Rights, specifically regarding the impact of climate change on human rights such as the rights to life, the rights of children, future generations, and indigenous communities.
A Global Levy on Coal and Oil and Gas Companies
There is also potential for using coal and oil and gas producing companies, which are responsible for a large share of global greenhouse gas emissions and climate change. A recent report shows that 57 oil and gas companies are responsible for 80% of global carbon dioxide emissions. These companies have continued to expand fossil fuel production even after the signing of the Paris Agreement. Hence, there is a call by many small island states for a global levy on them to pay compensation for damage.
Conclusion
The success of the ITLOS Opinion demonstrates the potential of legal action in securing climate justice. Small states should unite to fully leverage international law in addressing the profound impacts of climate change—rising seas, shifting borders, food insecurity, and the displacement of their populations. When major greenhouse gas emitters act to save themselves, these islands may already be reduced to mere rocks, unable to claim nationhood or sustain their populations.
Frequently Asked Questions (FAQs)
* What are the consequences of climate change for small island states?
Rising sea levels, food insecurity, and displacement are some of the consequences of climate change faced by small island states.
* What is the role of international law in addressing climate change?
International law acts as a shield and a weapon for small states confronting existential threats. The ITLOS Opinion demonstrates the potential of legal action in securing climate justice.
* How do small island states plan to address climate change?
Small island states are leveraging international law to support their fight for climate justice. They are also calling for a global levy on coal and oil and gas companies to pay compensation for damage.
* What is the significance of the ITLOS Opinion?
The ITLOS Opinion is a critical legal precedent that shapes the understanding of climate obligations under UNCLOS and provides the foundation for future compensation claims from affected nations against significant emitters.