Part XII of the United Nations Convention on the Law of the Sea and the Duty to Mitigate Against Climate Change: Making Out a Claim, Causation, and Related Issues

Abstract

Within the current state of international jurisprudence, there is a growing recognition of the importance of ocean environmental protection. One of the most significant recent examples is the decision in the South China Sea Arbitration, which recognized the obligation of States to protect and preserve the marine environment in disputed territorial or maritime areas. Despite this overall trend, however, serious gaps in State practice remain. In particular, current research on State practice of national and regional marine pollution contingency planning in the Asia-Pacific reveals that there has been little regard displayed in the region for accommodating a proactive approach to marine environmental protection. The international community, particularly the States that are suffering the consequences of climate change and sea-level rise, is attempting to tackle the problem of climate change and to find ways to mitigate its damages. One suggestion has been to bring a legal claim before an international tribunal to commence climate change litigation. From the perspective of the current regime of international law, including the Law of the Sea and State responsibility, the feasibility and effectiveness of climate change litigation is highly questionable. This is largely due to the challenges of establishing causation and other related issues. An alternative suggestion is to use the legal mechanism of the United Nations Convention on the Law of the Sea, not to adjudicate the issue, but to seek the issuance of an advisory opinion on the legal question presented by climate change in light of international agreements related to the purposes of this Convention. The problem with such an advisory opinion, however, would be its potential for ineffectiveness due to its non-binding character. In conclusion, there is no single solution to resolve the issue of climate change. However, a better understanding of the linkages between Parties' obligations under relevant treaties such as the United Nations Framework Convention on Climate Change, the Paris Agreement, and the United Nations Convention on the Law of the Sea, among others, may provide an additional impetus for States to take climate change seriously and increase efforts to negotiate additional agreements and implement them effectively.