International Climate Governance refers to the collective efforts and frameworks established by countries, international organizations, and other stakeholders to address and manage the global challenges posed by climate change. It encompasses a wide range of activities, agreements, policies, and institutions aimed at mitigating greenhouse gas emissions, adapting to the impacts of climate change, and ensuring sustainable development. Key elements of international climate governance include:

1. Multilateral Agreements: Central to international climate governance are agreements like the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol, and the Paris Agreement. These treaties set out the commitments and mechanisms for countries to reduce greenhouse gas emissions and support climate resilience.
2. Institutions and Bodies: Various international institutions play critical roles in climate governance. These include the Intergovernmental Panel on Climate Change (IPCC), which provides scientific assessments on climate change, and the Green Climate Fund (GCF), which finances projects to mitigate and adapt to climate change in developing countries.
3. National Contributions: Countries submit Nationally Determined Contributions (NDCs) under the Paris Agreement, outlining their plans to reduce emissions and adapt to climate change impacts. These contributions are subject to periodic review and enhancement to ensure increasing levels of ambition.
4. Monitoring and Reporting: Effective climate governance relies on robust systems for monitoring, reporting, and verification (MRV) of emissions and climate actions. Countries are required to provide regular reports on their progress in meeting their climate commitments.
5. Climate Finance: Adequate funding is essential for implementing climate actions, particularly in developing countries. International climate finance mechanisms, such as the GCF, provide financial support for mitigation and adaptation projects.
6. Technology Transfer and Capacity Building: To enable all countries to participate in climate action, international governance frameworks promote the transfer of technology and the building of capacities. This includes sharing knowledge, best practices, and innovations.
7. Stakeholder Engagement: Effective climate governance involves the participation of a wide range of stakeholders, including governments, businesses, civil society, indigenous peoples, and local communities. This inclusive approach ensures that diverse perspectives are considered in climate decision-making.
8. Adaptation and Resilience: International climate governance also focuses on enhancing the ability of communities and ecosystems to adapt to the impacts of climate change. This involves developing strategies and policies that increase resilience to climate-related risks.
9. Legal and Regulatory Frameworks: Countries develop and implement domestic laws and regulations to meet their international climate commitments. These frameworks provide the legal basis for climate action and enforcement mechanisms.
10. International Cooperation and Diplomacy: Climate change is a global challenge that requires international cooperation and diplomacy. Countries negotiate and collaborate through various forums and platforms to address common climate issues and advance collective goals.

Overall, international climate governance seeks to create a cohesive and coordinated global response to climate change, ensuring that efforts are aligned with scientific evidence and equitable principles. It aims to achieve sustainable development by balancing environmental protection, economic growth, and social well-being.

On May 21, 2024, a landmark event occurred in international climate change litigation. The International Tribunal for the Law of the Sea (ITLOS) issued an advisory opinion requested by the Commission of Small Island States on Climate Change and International Law (COSIS). This opinion sought to clarify the specific obligations of parties to the United Nations Convention on the Law of the Sea (UNCLOS) regarding climate change mitigation. COSIS advocates for the interests of small island states facing severe climate change impacts, such as rising sea levels and ocean acidification.

International Legal Frameworks: UNCLOS, ITLOS, and COSIS

UNCLOS

The United Nations Convention on the Law of the Sea (UNCLOS) is a comprehensive international treaty that governs the use of the world’s oceans. It establishes the legal framework for various maritime activities, including navigation, fishing, conservation, and scientific research. UNCLOS also defines the rights and responsibilities of states in different maritime zones, such as territorial waters, exclusive economic zones, and the high seas. Adopted in 1982, UNCLOS is considered the “constitution for the oceans” and has been ratified by most countries. It serves as the primary instrument for regulating ocean affairs and promoting cooperation among states in managing marine resources and protecting the marine environment.

ITLOS

The International Tribunal for the Law of the Sea (ITLOS) is an international judicial body established by UNCLOS. ITLOS is responsible for adjudicating disputes related to the interpretation and application of UNCLOS. It provides a forum for resolving maritime disputes between states and issues advisory opinions on legal questions concerning the law of the sea. ITLOS plays a crucial role in upholding international maritime law and promoting the peaceful resolution of ocean-related disputes among nations.

COSIS

The Commission of Small Island States on Climate Change and International Law (COSIS) is a collaborative initiative among small island nations to address the legal aspects of climate change. Established in 2021, COSIS aims to strengthen legal frameworks, advocate for the interests of small island states in international forums, and foster cooperation to mitigate the impacts of climate change on vulnerable island communities. Through research, policy development, and advocacy, COSIS seeks to enhance resilience and ensure equitable treatment of small island states in climate-related matters.

Obligations under UNCLOS

The core of the ITLOS advisory opinion is the clarification of the obligations of parties to UNCLOS concerning anthropogenic greenhouse gas (GHG) emissions. The opinion emphasized that parties have a duty under Article 194(1) of UNCLOS to take all necessary measures to prevent, reduce, and control marine pollution resulting from such emissions. This ruling removed doubts regarding the classification of carbon dioxide as a pollutant under UNCLOS and underscored the significant role of human-induced CO2 emissions in contributing to ocean acidification and warming.

Implications of Climate Crisis Regulation

Traditional international law principles governing state behavior in preventing transboundary harm face limitations when applied to the complex and global nature of the climate crisis. One such limitation is the bilateral framing of obligations, which may not adequately address collective interests. Moreover, challenges related to attribution and standing complicate efforts to establish breaches of obligations related to climate change.

The ITLOS opinion represents a departure from this traditional approach by prioritizing collective interests over bilateral concerns. It aligns obligations with the best available scientific evidence and international agreements, such as the Paris Agreement. Importantly, the opinion emphasizes the need for parties to strive for the more ambitious goal of limiting global temperature rise to 1.5°C, rather than the previously agreed-upon 2°C target.

Specific Actions Mandated by the ITLOS Opinion

While the ITLOS opinion identifies general obligations under Article 194(1) of UNCLOS, it does not prescribe specific measures that parties must take to fulfill these obligations. It underscores that states do not have unfettered discretion in addressing climate change. The opinion suggests that the gradual reduction of GHG emissions over time could be sufficient to meet these obligations. However, it leaves room for interpretation and debate regarding the specific actions that parties must undertake.

Challenges in Determining Mitigation Action

The significance of the ITLOS opinion lies in establishing a mitigation obligation and defining its content. One key challenge is determining the appropriate level of mitigation action that states must undertake. Drawing on the precedent set by cases such as Urgenda Foundation v. The Netherlands, which mandated specific emissions reduction targets, the opinion highlights the importance of setting concrete and ambitious goals based on scientific evidence and international agreements. However, the ITLOS opinion falls short in providing a clear methodology for assessing states’ mitigation actions. This lack of clarity leaves room for debate regarding the equitable distribution of mitigation responsibilities and the availability of resources.

Additionally, the opinion acknowledges that the obligation to take necessary measures is subject to the means available to states and their capabilities, underscoring the importance of considering principles of equity in climate change mitigation efforts.

Legal Implications and Analysis

The ITLOS advisory opinion carries significant legal implications for international climate change law. By clarifying the obligations of parties to UNCLOS regarding GHG emissions, the opinion provides a foundation for future legal action and policy development in addressing the climate crisis. The recognition of carbon dioxide as a pollutant under UNCLOS expands the scope of legal mechanisms available for regulating GHG emissions at the international level.

Moreover, the opinion reinforces the principle of collective responsibility in combating climate change, emphasizing the need for coordinated action among states to mitigate its impacts. This principle aligns with the overarching goals of international climate agreements, such as the Paris Agreement, which seeks to mobilize global efforts to limit global temperature rise and protect vulnerable ecosystems.

However, the general nature of the obligations identified in the ITLOS opinion raises questions about the enforceability and effectiveness of international climate law. While states are obligated to take all necessary measures to reduce GHG emissions, the lack of specific guidance on how to achieve this goal leaves room for interpretation and implementation challenges. The principle of equity, which factors into the assessment of states’ mitigation actions, introduces complexities in determining a fair distribution of responsibilities among nations with varying levels of resources and capabilities.

Political and Policy Implications

Beyond its legal significance, the ITLOS advisory opinion has important political and policy implications for global climate governance. As an authoritative interpretation of international law, the opinion carries considerable weight in shaping the discourse and actions of states and international organizations on climate change. It provides a framework for holding states accountable for their contributions to climate change and for guiding the development of policies and measures to mitigate its impacts.

Moreover, the emphasis on the 1.5°C temperature goal in the ITLOS opinion reflects the growing recognition of the urgency of addressing climate change and the need for more ambitious action to avoid catastrophic consequences. This recognition is particularly relevant for vulnerable communities, such as small island states, which are disproportionately affected by the adverse effects of climate change, including sea-level rise, extreme weather events, and loss of biodiversity.

At the same time, the ITLOS opinion highlights the challenges of translating legal obligations into concrete actions and outcomes. While states may be legally obligated to reduce GHG emissions, achieving this goal requires overcoming various political, economic, and social barriers. This includes mobilizing financial resources, fostering international cooperation and collaboration, and implementing innovative technologies and policies to transition to a low-carbon and climate-resilient future.

Conclusion

The ITLOS advisory opinion is a significant step in climate law, clarifying countries’ obligations regarding greenhouse gases and ocean pollution. However, it also highlights the need for stronger global climate rules. Ensuring compliance, clarity in actions, and accountability is essential. Addressing climate change is challenging, but this opinion underscores the necessity for all countries to collaborate in protecting the planet.