By Sir Ronald Sanders
On September 11 in Hamburg, Germany, a significant legal proceeding began that could redefine the parameters of climate justice for small island states. This case, slated to run until September 25, will unfold at the International Tribunal of the Law of the Sea (ITLOS).
The ITLOS proceedings
ITLOS, which is composed of 21 distinguished judges, is currently reviewing an advisory opinion request from the Commission of Small Islands on Climate Change and International Law (COSIS). The central issue is the obligation of states to combat pollution linked to climate change and its ensuing marine repercussions, such as rising ocean temperatures, sea level elevation, and ocean acidification.
By its conclusion, 19 inter-governmental and civil society organizations will have presented their testimony to the tribunal, supported by evidence – both written and oral -from 31 nations.
History is being made
At no other time in history has the deleterious effects of climate change on small states been given such meaningful international attention. The results of this case will be watched carefully, particularly by the world’s greatest contributors to the harmful impacts of climate change. Those countries have used the annual United Nations Conference of the Parties (COP) to tie-up any real progress on considering, let alone accepting and paying for, the loss and damage being wreaked on small island states.
COSIS: A response to unkept promises
The origins of this request to ITLOS for an advisory opinion began two years ago, in the margins of the COP 26 meeting in Glasgow. The leaders of two small island states from two different parts of the world, took a decision to form an inter-governmental organization that would use the international legal system to seek justice for the considerable impact of Climate Change on their countries.
The prime ministers of Antigua and Barbuda in the Caribbean and Tuvalu in the Pacific, Gaston Browne and Kausea Natano respectively, frustrated by the lip service being paid by the world’s major contributors to climate change, and the broken promises of every previous COP meeting, decided that they would seek an Advisory Opinion from ITLOS.
Consequently, they launched the Commission of Small Island States on Climate Change and International Law (COSIS) as an international organisation within the framework of the UN. They were subsequently joined by several other small states, including The Bahamas, St Lucia, St Kitts-Nevis and St Vincent and the Grenadines, and by Vanuatu, Palau and Niue. What each of these small islands faces is a real and present threat to their existence.
The gravity of the problem
In the opening presentation to the Tribunal on behalf of COSIS, prime minister Browne explained the gravity of the situation. He said: “It is no exaggeration to speak of existential threats, when some of these nations may vanish in the foreseeable future because of rising sea levels. The scientific evidence leaves no doubt that this situation has arisen because of the failure of major polluters to effectively mitigate greenhouse gas emissions. This inaction, this failure of political will, has brought humankind to a perilous juncture with catastrophic consequences.”
The prime minister’s argument is not mere theory; the science is clear and irrefutable. The primary culprits are the major polluters who have, thus far, shown a staggering lack of political will to remedy their actions.
Why go to ITLOS?
Small island nations are primarily maritime states. They depend on the ocean not just for sustenance, but as a crucial part of their heritage and identity. The ocean is also a vital carbon sink. With increasing ocean temperatures reaching record highs this summer, all nations must act now to safeguard this critical component of Earth’s climate system.
ITLOS, the guardian of the 1982 UN Convention on the Law of the Sea, is the natural venue to seek legal clarity on the obligations of states to protect our marine environment.
Compensation and the principle of equity
One of the most glaring injustices is that while small island states contribute the least to climate change, they suffer the most from its ravages. The situation calls not just for mitigation but also for compensation. The concept of loss and damage must be squarely addressed.
We are not just talking about climate change adaptation but also about building resilience against future threats. All these require substantial financing. If justice is to be served, major polluters must be held financially accountable.
The advisory opinion: A beacon of hope
By going to ITLOS, the countries of COSIS are not seeking to rewrite laws; they are seeking clarity on existing ones. This Advisory Opinion from ITLOS can serve as a benchmark, a guidepost, for international actions going forward.
The hour of decision
The world is at a fork in the road of human history. On one hand, inaction and the continuation of empty promises, leading to existential loss for small island states. On the other, immediate, effective action informed by international law.
As climate change continues to simultaneously burn our world, while flooding it; as Climate change upends weather patterns, ruining food production, and creating water shortages; as glaciers melt and the levels of seas rise, drowning small islands and eroding coastal areas; as people are displaced from their natural habitats and seek refuge on other shores, small island states are the first to suffer; but they will not be the last. All are involved and all will be consumed.
On behalf of all small island states, COSIS’ approach to ITLOS is an effort to tip the scales towards justice and survival. But its plea is not just for small states; it is for the health of a planet which every nation shares.
A decision by ITLOS is unlikely to be delivered until early next year. There is a great volume of legal and technical submissions for the 21 judges to consider. But, already, there is cause for celebration that COSIS – a group of courageous small island states – stood up for the rights of their people, and ITLOS listened, giving validity to their concern. There is also cause for lamentation that other island states, with just as much to lose, chose to stand silent on the sidelines.
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