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Some small island states seek climate justice in landmark case

Antigua and Barbuda’s Ambassador to the United States, Sir Ronald Sanders

By Sir Ronald Sanders

ON September 11 in Hamburg, Germany, a big legal proceeding began that might redefine the parameters of climate justice for small island states. This case, slated to run until September 25, will unfold on the International Tribunal of the Law of the Sea (ITLOS).

Background: The ITLOS Proceedings

ITLOS, which consists 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 duty of states to combat pollution linked to climate change and its ensuing marine repercussions, similar to rising ocean temperatures, sea level elevation, and ocean acidification.

By its conclusion, 19 inter-governmental and civil society organizations can have presented their testimony to the tribunal, supported by evidence—each 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 outcomes of this case shall be watched rigorously, particularly by the world’s best 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 guarantees

The origins of this request to ITLOS for an advisory opinion began two years ago, within 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 choice to form an inter-governmental organization that may use the international legal system to hunt justice for the considerable impact of Climate Change on their countries.

The Prime Ministers of Antigua and Barbuda within the Caribbean and Tuvalu within 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 guarantees of each previous COP meeting, decided that they’d seek an Advisory Opinion from ITLOS.

Consequently, they launched the Commission of Small Island States on Climate Change and International Law (COSIS) as a global organisation throughout 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 those small islands faces is an actual and present threat to their existence.

The gravity of the issue

Within the opening presentation to the Tribunal on behalf of COSIS, Prime Minister Browne explained the gravity of the situation. He said: “It isn’t any exaggeration to talk of existential threats, when a few of these nations may vanish within the foreseeable future due to rising sea levels. The scientific evidence leaves little doubt that this example has arisen due to failure of major polluters to effectively mitigate greenhouse gas emissions. This inaction, this failure of political will, has brought humankind to a deadly juncture with catastrophic consequences.”

The Prime Minister’s argument shouldn’t be mere theory; the science is evident and irrefutable. The first culprits are the main polluters who’ve, up to now, shown a staggering lack of political will to treatment their actions.

Why go to ITLOS?

Small island nations are primarily maritime states. They rely upon the ocean not only for sustenance, but as an important a part of their heritage and identity. The ocean can be a significant 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 hunt legal clarity on the obligations of states to guard our marine environment.

Compensation and the Principle of Equity

One of the glaring injustices is that while small island states contribute the least to climate change, they suffer probably the most from its ravages. The situation calls not only for mitigation but additionally for compensation. The concept of loss and damage should be squarely addressed.

We should not just talking about climate change adaptation but additionally about constructing resilience against future threats. All these require substantial financing. If justice is to be served, major polluters should be held financially accountable.

The Advisory Opinion: A Beacon of Hope

By going to ITLOS, the countries of COSIS should not searching for to rewrite laws; they’re searching for clarity on existing ones. This Advisory Opinion from ITLOS can function a benchmark, a guidepost, for international actions going forward.

The Hour of Decision

The world is at a fork within the road of human history. On one hand, inaction and the continuation of empty guarantees, resulting in existential loss for small island states. On the opposite, immediate, effective motion informed by international law.

As climate change continues to concurrently burn our world, while flooding it; as Climate change upends weather patterns, ruining food production, and creating water shortages; as glaciers melt and the degrees of seas rise, drowning small islands and eroding coastal areas; as individuals are displaced from their natural habitats and seek refuge on other shores, small island states are the primary to suffer; but they’ll not be the last. All are involved and all shall 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 shouldn’t be only for small states; it’s for the health of a planet which each and every nation shares.

A call by ITLOS is unlikely to be delivered until early next 12 months. There’s an amazing volume of legal and technical submissions for the 21 judges to think about. But, already, there’s cause for celebration that COSIS – a gaggle of courageous small island states – stood up for the rights of their people, and ITLOS listened, giving validity to their concern. There’s also cause for lamentation that other island states, with just as much to lose, selected to face silent on the sidelines.

(The author is Antigua and Barbuda’s Ambassador to america and the Organization of American States. He can be a Senior Fellow on the Institute of Commonwealth Studies on the University of London and Massey College within the University of Toronto. The views expressed are entirely his own. Responses and former commentaries: www.sirronaldsanders.com)

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