The Pacific-Caribbean Climate Case

In mid-September, the prime ministers of Tuvalu and Antigua and Barbuda gave evidence in a landmark case brought before the International Tribunal for the Law of the Sea (ITLOS) in Hamburg, Germany. The two prime ministers represented a coalition known as the Commission of Small Island States on Climate Change and International Law (COSIS), which consists of a number of Pacific and Caribbean island countries that are highly vulnerable to the effects of climate change.

The purpose of the case is to determine whether carbon emissions that have been absorbed by the marine environment can be considered pollution, and what the consequence of this might be. The objective of COSIS is to not only establish legally binding constraints on pollution (some of which are already in place), but to seek a set of obligations for states for the improvement of marine environments already damaged by carbon pollution.

Presently, oceans absorb about a quarter of the world’s carbon emissions. This has an impact on the acidification of the oceans, as well as accelerating coral bleaching. These in turn have disastrous implications for marine ecosystems, affecting not only the essential marine diversity but also the seafood stocks that many island states rely on.

For Pacific Island countries, the protection of the marine environment is paramount not only to their livelihoods but also their cultures and nationhood. These countries feel a strong sense of guardianship over the ocean. The collective Pacific diplomatic strategy of the Blue Pacific has sought to reframe Pacific countries away from being “small island states” to “large ocean states” instead – reflecting not only their extensive Exclusive Economic Zones, but how they actually understand their own place in the world.

In a statement prior to proceedings at ITLOS, Tuvalu’s prime minister, Kausea Natano, was blunt in stressing the importance of this case: “We come here seeking urgent help, in the strong belief that international law is an essential mechanism for correcting the manifest injustice that our people are suffering as a result of climate change.”

For Tuvalu, ocean health is not only a matter of food security and cultural importance; it is an existential issues. Estimates suggest that rising sea levels will leave half of Tuvalu’s capital, Funafuti, flooded by 2050. Rising ocean temperatures also affect the number and intensity of extreme weather events that impact Tuvalu and the wider Pacific region.

As with other attempts to create legal frameworks around the impacts of climate change, this case concerns the principle of transboundary harm. Pacific Islands (and their Caribbean comrades) are some of the world’s lowest carbon emitters, but suffer disproportionately the effects of these emissions.

During the first day of evidence, Natano stated that despite their efforts, countries like his have tried and failed to gain the traction for the world to cut carbon emissions with the necessary urgency. “This lack of political will endangers all of humankind, and it is unacceptable for small island states like my own, which are already teetering on the brink of extinction,” he stated.

What COSIS is realistically trying to achieve with this case is a favorable ruling that may open up a path to other legal cases. And with this terrain established there will be greater pressure on larger emitters to reduce their emissions as a protective measure.

Other countries are recognizing the impact that this case may have on how they operate. Thirty states, as well as the EU, submitted written statements to the tribunal prior to proceedings, while others also gave verbal statements over the week of proceedings. China, the world’s largest emitter, explicitly challenged the jurisdiction of ITLOS, claiming that the body is only able to resolve disputes and doesn’t have the power to issue advisory opinions.

Despite not having conventional power in the international system, Pacific Island countries, and the allies they find among other small and vulnerable states, have proven adept at climate diplomacy and finding ways to shift other states’ thinking. They may not be able to move the rest of the world at the pace that is necessary, but they continue to find inventive ways to have other states respond to their initiatives.

After September’s proceedings, ITLOS is now considering the case. An opinion is expected before the end of the year.