Matters commented on: request for an advisory opinion, ITLOS, COSIS, inter-regime relationships
1 Introduction*
On 12 December 2022, the Commission of Small Island States on Climate Change and International Law (COSIS) submitted a request to the International Tribunal for the Law of the Sea (ITLOS) to render an advisory opinion. In its request, COSIS asked ITLOS to clarify ‘the specific obligations of State Parties to the United Nations Convention on the Law of the Sea [UNCLOS] […] to prevent, reduce and control pollution of the marine environment in relation to the deleterious effects that result or are likely to result from climate change’ as well as ‘to protect and preserve the marine environment in relation to climate change impacts’ more broadly (Request for an Advisory Opinion).
Matters Commented on: North Atlantic Ocean surface temperature rise, IMO 2020 Sulphur Regulation, IMO GHG Strategy, Climate Change
1. Introduction
In the summer of 2023 exceptional sea surface temperatures were recorded on the North Atlantic Ocean, as a climax of a period of rapid warming that began in spring 2023 (Copernicus Programme, 2023). According to the ‘Copernicus Programme’ (the European Union’s Earth observation programme):
Temperatures in the northeastern Atlantic climbed steadily from the end of May, peaking on 21 June at around 1.6°C above average […]. While absolute temperatures do reach higher values in the region during the summer, the average temperatures observed last month are more typical of later in the summer (Copernicus Programme, 2023).
Graph: Daily sea surface temperature anomaly (°C) averaged over the northeastern Atlantic region during 2023 (black line) and for previous years from 1979 to 2022 (red and blue lines). Data source: ERA5. Credit: Copernicus Climate Change Service/ECMWF.
Of course, human-caused climate change is the main cause of increased temperatures around the globe, including the North Atlantic Ocean surface. However, the extraordinary and rapid increase in temperature observed in 2023 was likely facilitated by a number of other factors that amplified the effects of climate change.
These likely factors include unusual atmospheric circulation patterns, broader tropical warming involving the transition to El Niño conditions, the presence of Saharan Dust, wild fire smoke from Canada, and the effects of the Hunga-Tonga volcano eruption, as well as one likely factor that stands out as of particular importance in the context of the law of the sea (Hausfather and Forster, 2023). This is a relevant regulation of shipping, specifically the reduction of sulphur emissions from ships, following the implementation of the relevant International Maritime Organization (IMO) Regulation on sulphur emissions (Voosen, 2023, Hausfather and Forster, 2023).
Document Commented On: Resolution LP.5(14) on the Provisional Application of the 2009 Amendment to Article 6 of the London Protocol, adopted 11 October 2019, by the 14th Meeting of the Contracting Parties to the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matters. [Note: Documents relating to the London Convention and Protocol including this document may be accessed on the website of the International Maritime Organization (IMO) here but users have to create an account to obtain access. Follow “Meeting Documents” and then LC Documents (Session 41). For convenience, the text of the Resolution is included at the foot of this post].
This post examines the recent decision of the Contracting Parties to the 1996 Protocol (the London Protocol or LP) to the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matters (London Dumping Convention or LC) to agree to the provisional application of an amendment to Article 6 of the LP. That amendment (originally adopted in 2009) when it enters into force will allow the export of CO2 for geological sequestration. The amendment is a crucial piece of the puzzle to permit collaborative projects for the subsea disposal of captured carbon dioxide emissions from industrial facilities located elsewhere than the coastal State responsible for the disposal site. This initiative, which will permit provisional application of that amendment, will help facilitate projects such as the Equinor-led Northern Lights Project on the Norwegian continental shelf. That project is currently drilling a test well: see here and here.
Document commented on: United Nations Environment Assembly of the United Nations Environment Programme, Resolution on Marine Litter and Microplastics, UNEP/EA.3/L.20, Third Session, 4-6 December 2017
According to the Ellen McArthur Foundation, by 2050 there will be more plastic than fish by weight in our oceans if the business-as-usual-model continues. The latest United Nations Environment Assembly addressed this alarming scenario in its Resolution on Marine Litter and Microplastics. But does the resolution take us any closer to concrete solutions? Arguably, it does not. The resolution highlights the urgency of the issue and encourages Member States and stakeholders to take action. Admittedly, it builds momentum to address the issue but fails to provide credible solutions.
Background to the Resolution
The United Nations Environment Assembly (UNEA) is the governing body of the United Nations Environment Programme (UNEP) and globally the highest-level decision-making body on environmental issues. It has the universal membership of all 193 UN Member States. The UNEA has its origins with the UN Conference on the Human Environment in 1972 and was finally established at the Rio+12 UN Conference on Sustainable Development in 2012. The Resolutions of the UNEA are not legally binding on Member States. However, the biennial Environment Assemblies have an important role in guiding policies and setting priorities concerning global environmental issues.
