{"id":65394,"date":"2023-03-27T15:31:04","date_gmt":"2023-03-27T14:31:04","guid":{"rendered":"https:\/\/www.lse.ac.uk\/granthaminstitute\/?post_type=news&p=65394"},"modified":"2024-08-16T10:27:01","modified_gmt":"2024-08-16T09:27:01","slug":"how-the-law-might-be-supporting-a-watershed-moment-for-the-oceans-within-the-climate-movement","status":"publish","type":"news","link":"https:\/\/www.lse.ac.uk\/granthaminstitute\/news\/how-the-law-might-be-supporting-a-watershed-moment-for-the-oceans-within-the-climate-movement\/","title":{"rendered":"How the law might be supporting a watershed moment for the oceans within the climate movement<\/strong>"},"content":{"rendered":"\n

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. <\/p>\n\n\n\n

2022 has been dubbed the ‘super year of the ocean<\/path><\/svg><\/a>’ as international climate negotiations saw fresh interest from global policymakers in ‘blueing’ the Paris Agreement. Concepts such as the blue economy<\/a>, 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<\/path><\/svg><\/a> and the Climate Change Laws of the World database<\/path><\/svg><\/a> maintained by the Grantham Research Institute. <\/p>\n\n\n\n

Seeking support from international law <\/h2>\n\n\n\n

In December 2022, the Commission of Small Island States on Climate Change and International Law (COSIS) filed a historic request for an advisory opinion<\/path><\/svg><\/a> to the International Tribunal for the Law of the Sea (ITLOS). The applicants<\/path><\/svg><\/a>, 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<\/path><\/svg><\/a> 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.  <\/p>\n\n\n\n

For international law-makers, the role the ocean plays in climate mitigation gained traction<\/path><\/svg><\/a> at COP27, including through the Sharm el-Sheikh Implementation Plan<\/path><\/svg><\/a>, 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.  <\/p>\n\n\n\n

Protecting the ocean as a carbon sink <\/h2>\n\n\n\n

Although the ocean is the world’s largest carbon sink<\/path><\/svg><\/a>, litigation efforts to date have largely focused on terrestrial sinks<\/path><\/svg><\/a> such as forests (see recent cases launched in Finland<\/path><\/svg><\/a>, Germany<\/path><\/svg><\/a> and Sweden<\/path><\/svg><\/a>). 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. <\/p>\n\n\n\n

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<\/a> has touched on the potential of oceans to absorb carbon. A prominent example is Fiji’s Climate Change Act 2021<\/path><\/svg><\/a>, 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.  <\/p>\n\n\n\n

Chile’s Framework Law on Climate Change<\/path><\/svg><\/a> 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<\/path><\/svg><\/a> includes a provision on promoting the absorption capacity of marine and terrestrial carbon sinks.  <\/p>\n\n\n\n

The Intergovernmental Panel on Climate Change (IPCC) has noted in its Sixth Assessment report on climate mitigation<\/path><\/svg><\/a> 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.  <\/p>\n\n\n\n

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<\/path><\/svg><\/a>, 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<\/path><\/svg><\/a>, as will be discussed next. <\/p>\n\n\n\n

Challenging risks to marine biodiversity  <\/h2>\n\n\n\n

The High Seas Treaty<\/path><\/svg><\/a> 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: <\/p>\n\n\n\n