How the law might be supporting a watershed moment for the oceans within the climate movement
The recent adoption of the High Seas Treaty and other developments in international environmental law, plus a growing number of litigation cases involving the oceans, show increasing recognition of the critical need for better governance of our oceans in addressing the twin issues of climate change and biodiversity loss. Isabela Keuschnigg and Catherine Higham explore how questions about the ocean and its role in the climate crisis are being addressed through domestic climate laws and litigation.
2022 has been dubbed the ‘super year of the ocean’ as international climate negotiations saw fresh interest from global policymakers in ‘blueing’ the Paris Agreement. Concepts such as the blue economy, blue finance and blue carbon markets are continuing to gain increased attention. However, the degree to which this interest is being translated into international and domestic law and policy is still an open question. Here we examine how the ocean–climate nexus is being considered by legislators and courts around the world, drawing on the Sabin Center for Climate Change Law’s Climate Case Chart database and the Climate Change Laws of the World database maintained by the Grantham Research Institute.
Seeking support from international law
In December 2022, the Commission of Small Island States on Climate Change and International Law (COSIS) filed a historic request for an advisory opinion to the International Tribunal for the Law of the Sea (ITLOS). The applicants, a group of island nations led by Antigua, Barbuda and Tuvalu, are asking ITLOS to interpret States’ obligations under the UN Convention on the Law of the Sea in relation to the prevention of pollution, the adverse impacts of climate change, and protecting the marine environment against those impacts – which include ocean warming, sea level rise and ocean acidification. The petition is part of a growing trend of requests for advisory opinions seeking to clarify what States are required to do in response to the climate crisis, but this is the first that focuses on the ocean.
For international law-makers, the role the ocean plays in climate mitigation gained traction at COP27, including through the Sharm el-Sheikh Implementation Plan, which highlights the role of marine ecosystems as carbon sinks and positions them within mitigation efforts. One part of the Plan is specifically dedicated to the ocean and encourages States to consider ocean-based action in their national climate goals and the implementation of these goals.
Protecting the ocean as a carbon sink
Although the ocean is the world’s largest carbon sink, litigation efforts to date have largely focused on terrestrial sinks such as forests (see recent cases launched in Finland, Germany and Sweden). Only one such case – the Swedish ‘Aurora Case’ – in which 600 young people are challenging the Swedish government’s climate mitigation policy, involves the role of marine carbon sinks. Its claims touch on insufficient and inadequate government action regarding the protection and restoration of natural carbon sinks, including the ocean.
One reason there are relatively few litigation cases on oceans is that only a limited number of countries have domestic legislation in this area (in part due to the fact that so much of the ocean consists of ‘international waters’). However, in recent years new net zero legislation has touched on the potential of oceans to absorb carbon. A prominent example is Fiji’s Climate Change Act 2021, which recognises the important role the ocean plays in mitigation and sets both a long-term ocean sustainability target and a short-term target for marine protected areas by 2030. The Act also empowers the Minister responsible for climate change to make regulations and policies to enhance the mitigation potential of the ocean.
Chile’s Framework Law on Climate Change suggests including the mitigation effects of the ocean in the country’s Long-Term Climate Strategy in furtherance of reaching net zero by 2050. Meanwhile, Spain’s Law 7/2021 on climate change and energy transition includes a provision on promoting the absorption capacity of marine and terrestrial carbon sinks.
The Intergovernmental Panel on Climate Change (IPCC) has noted in its Sixth Assessment report on climate mitigation that despite limited current deployment, the estimated mitigation potential of ocean-based carbon dioxide removal (CDR) methods (including ocean alkalinity enhancement and ocean fertilisation) is “moderate to large”. As there are no comprehensive international legal frameworks dedicated to ocean-based CDR, such activities fall under a broad body of international instruments.
One major issue identified by researchers at the Sabin Center for Climate Change Law is the tension between international law aimed at the protection of marine biodiversity and the marine environment, and the way that ocean-based CDR processes operate. In the case of seaweed cultivation, for example, approaches that would involve growing seaweed and then ‘sinking’ it as a means of long-term carbon sequestration might fall foul of provisions against ‘dumping’ intended to capture other forms of waste. This tension could lead to litigation, particularly given the history of climate litigation concerning marine biodiversity risks, as will be discussed next.
Challenging risks to marine biodiversity
The High Seas Treaty agreed by UN member states earlier this month will now be key to securing the protection of 30% of the open ocean by 2030, a pledge advanced at the UN Biodiversity Conference (COP15) in December 2022. Even prior to the introduction of this new treaty, marine biodiversity protection measures have often been used in legal challenges against climate damaging projects. For example:
- The World Wildlife Fund Canada contested the existence of oil and gas ‘sleeper’ permits for an area off the coast of British Columbia in July 2022. These drilling permits were first issued in the 1960s and 70s and although due to expire years ago were indefinitely extended. The plaintiffs call for the permits to be retired, highlighting possible threats to biodiversity.
- In March 2022, individuals challenged financial support for a gas project near the Tiwi Islands, with one of the plaintiffs’ arguments focusing on environmental harm to marine ecosystems which would in turn impact an endangered sea turtle species.
- A new gas project off the Western Australian coast was challenged in June 2022, highlighting the significant impact the emissions would have on the Great Barrier Reef, such as coral bleaching.
- A series of lawsuits targeted the approval of offshore fossil fuel exploration by the Argentinian Ministry of Environment and Sustainable Development, grounded in part on threats to marine biodiversity.
While these cases have all involved projects that pose a threat to both the climate and biodiversity, there is also the possibility of future cases focusing solely on environmental trade-offs, such as offshore wind developments that may pose risks to marine ecosystems.
Protecting vulnerable communities dependent on the ocean
Another strand of ocean-based climate litigation centres on the livelihoods of vulnerable communities that depend on the ocean.
One example of such a case is the Torres Strait Islanders’ Petition to the UN Human Rights Committee, which alleged human rights violations from Australia’s inaction on climate change. In September 2022 the litigants won the case, making international legal history. Although no violation of the right to life was found, the Human Rights Committee held that Australia had violated the applicants’ rights to enjoy their culture and their right to private, family and home life. In doing so, the Committee highlighted the Islanders’ dependence on their surrounding ecosystems, along with their spiritual connection with their traditional lands and the surrounding seas.
The spiritual and cultural significance of the ocean is also evident in other successful cases, such as that brought by Tiwi Islander Dennis Tipakalippa against the Australian Government’s offshore energy regulator. This case concerned the lack of consultation with the applicant and his community, who have a longstanding spiritual connection to what they call the “sea country”, regarding the approval of a gas field off the coast of Northern Australia. In Sustaining the Wild Coast NPC and Others v. Minister of Mineral Resources and Energy and Others, NGOs successfully challenged a seismic survey for the purpose of oil exploration off the coast of East Africa. The claims partly highlighted the cultural and spiritual livelihood of impacted communities.
Other cases highlight the threat that sea-level rise poses to the livelihoods of vulnerable communities. These include the pending cases of Indonesian Youths and others v. Indonesia and Asmania et al. v. Holcim. In the former, a rights-based case filed in July 2022, the claimants complain of various climate change-related impacts, one of them being sea-level rise which causes coral reef bleaching, declining fish stocks and food insecurity, and job insecurity in tourism and fisheries. In the latter case, four Islanders of Pari sued the Swiss cement company Holcim in February 2023, after a previous attempt at conciliation had failed. The claimants request climate mitigation measures, climate damages, and co-finance for flood protection measures due to sea-level rise.
While many domestic climate change adaptation laws and policies do focus on the risks posed to coastal communities, these cases highlight the significant gap between current policies and the protections urgently needed by communities.
What next for litigation on the ocean?
Although it is relatively uncommon at present, it is possible that ocean-focused litigation could increase in coming years, possibly with greater emphasis on enforcing domestic laws aimed at promoting the oceans’ role as a carbon sink.
It is also possible that we will start to see climate cases challenging ocean-based carbon dioxide removal projects, particularly if careful attention is not paid to both the risks such projects might pose to ocean biodiversity and the need for full public participation in decision-making around their approval and application.