Feasibility Litigation for the effects of climate change on the marine environment in the framework of the Convention on the Law of the Sea

Raee Dehaghi, Hajar

doi:10.22059/jplsq.2022.328705.2858

Document Type : Article

Author

Hajar Raee Dehaghi

Ph.D. in Public International Law, Faculty of Law and Political Science, University of Allameh Tabataba'i University, Tehran, Iran

10.22059/jplsq.2022.328705.2858

Abstract

Governments are still reluctant to accept commitments to reduce greenhouse gas emissions, despite being aware of the emergencies raised by the impact of climate change by institutions such as the Intergovernmental Panel on Climate Change. Although the effects of climate change have attracted the attention of the international community, there are almost no disputes in International judicial and quasi-judicial institutions. The Law of the Sea convention has broad definition of marine environmental pollution, thereupon has great potential to provide tools for compensating countries affected by climate change. According to the Convention, There is an opportunity to choose the tribunal along with the arbitration method which is the default option. Although the International Court of Justice and the International Tribunal for the Law of the Sea are better options for cases involving multiple defendants, a case arbitral tribunal is more likely to be the only realistic option by default, unless the parties agree to transfer the case to another authority. Such litigation through dispute resolution procedures set out in the Convention on the Law of the Sea can prove the effects of climate change, including species extinction, marine pollution and rising sea levels and prevent from occurring in the future.

Keywords

Main Subjects

Public International Law

References

English
1. A) Books
2. Cámara Stougaard-Andresen, R. A. (2011(. Climate change and the Law of the Sea Convention. Master thesis, Faculty of Law Lund University.
3. (Julia) Xue, G. (2013(. Climate Change Challenges and the Law of the Sea Responses, In Oliver C. 6. Ruppel, Christian Roschmann and Katharina Ruppel-Schlichting, Climate Change: International Law and Global Governance. Volume I: Legal Responses and Global Responsibility, Baden, Nomos.
4. Okubo, N. (2007). Climate Change Litigation: A Global Tendency: International Law and Global Governance Volume I: Legal Responses and Global Responsibility. Baden, Nomos.
5. Takamura, Y. (2013). Climate Change and Small Island Claims in the Pacific, In Oliver C. Ruppel, Christian Roschmann and Katharina Ruppel-Schlichting, Climate Change: International Law and Global Governance, Vol. 1: Legal Responses and Global Responsibility, Baden, Nomos.
6. Verheyen, R., & Cathrin, Z. (2007). International Climate Change Cases, International Law and Global Governance, 1: Legal Responses and Global Responsibility, Baden, Nomos.
1. B) Articles
2. Boyle, A. (2012). Law of the Sea Perspectives on Climate Change. Marine and Coastal Law, 27 (4), 831–838.
3. Boyle, A.) 2018(.Addressing Climate Change Impacts through UNCLOS Particle XV Dispute Settlement Mechanisms. in Climate Change and the Law of the Sea: Adapting the Law of the Sea to Address the Challenges of Climate Change. Singapore. Conference Report, 21-22.
4. Burns, W. C.G. (2007). Potential Causes of Action for Climate Change Impacts under the United Nations Fish Stocks Agreement. Unstainable Development Law & Policy, 79(2), 34-41.
5. Doelle, (2006). Climate Change and the Use of the Dispute Settlement Regime of the Law of the Sea Convention. Ocean Development and International Law, 37(3-4), 1-40.
6. Evans, M.D. (1994). Case Concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), International and Comparative Law Quarticleerly, 43(3), 697-704.
7. Kalas, P. R. & Alexia, H. (2000). Dispute Resolution under the Kyoto Protocol. Ecology Law Quarterly, 27(1), 53-134.
8. Lyons, Y. (2018). Protecting Coral Reefs and other Sensitive Marine Areas from the Impacts of Climate Change and Ocean Acidification. in Climate Change and the Law of the Sea: Adapting the Law of the Sea to Address the Challenges of Climate Change. Singapore: Conference Report, 18-20.
9. Osofsky, H. M. (2005). The Geography of Climate Change Litigation: Implications for Transnational Regulatory Governance. Washington University Law Quarterly, 83(6), 1789–1855.
10. Oral, N. (2021). "LCIL Friday Lecture: 'Climate change and the law of the sea: A test for international law'", Centre for International Law-National University of Singapore, 1-34.
11. Peel, J. (2007). The Role of Climate Change Litigation in Australia’s Response to Global Warming. Environmental and Planning Law Journal, 24, 90–105.
12. Preston, B. J. (2010). Climate Change Litigation. paper delivered to “Climate Change Governance after Copenhagen” Conference organized by Faculty of Law, The University of Hong Kong and Faculty of Laws, Hong Kong, University College London, Available at http://www.ucl.ac.uk, Last accessed 30 May 2020.
13. Redgwell, C. (2018). Treaty Evolution, Adaptation and Change: Is UNCLOS ‘enough’ to address Climate Change Impacts on the Oceans?. in Climate Change and the Law of the Sea: Adapting the Law of the Sea to Address the Challenges of Climate Change, Singapore, Conference Report, 22-24.
14. Tol, Richard S.J. & Roda, V. (2004). State Responsibility and Compensation for Climate Change Damages – a Legal and Economic Assessment. Energy Policy, 32, 1109–1130.
15. Vicuña, F. O. (1998). Responsibility and Liability for Environmental Damage under International Law: Issues and Trends. Georgetown International Environmental Law Review, 10(2), 279 – 308.
16. Weinbaum, A.) 2011(.Unjust Enrichment: An Alternative to Tort Law and Human Rights in the Climate, Change Context?. Pacific Rim Law & Policy Journal, 20(2), 412–429.
1. C) Cases
2. Arbitral Tribunal, 2000, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan). Award on Jurisdiction and Admissibility
3. International Court of Justice, 1966, South West Africa (Ethiopia v South Africa; Liberia v South Africa), Judgment.
4. International Court of Justice, 1973, Nuclear Tests Case (Australia v France), Order Interim Measures.
5. International Court of Justice, 2001, the ‘MOX Plant’ Case (Ireland v United Kingdom). Written Response of the United Kingdom.
6. International Court of Justice, 1949, Corfu Channel (United Kingdom of Great Britain and Northern Ireland v Albania). Judgment.
7. International Court of Justice, 1970, Barcelona Traction, Light and Power Company, Limited (Belgium v Spain). Judgment.
8. International Court of Justice, 1977, Gabacikovo – Nagymaros Project (Hungary / Slovak), Judgment.
9. International Court of Justice, 2007, Case Concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment.
10. International Court of Justice, 1969, Case concerning North Sea Continental Shelf (Germany v Denmark and the Netherlands). Judgment.
11. International Court of Justice, 2010, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment.
12. International Tribunal for the Law of the Sea, 2011, Responsibilities and obligations of states sponsoring persons and entities with respect to activities in the area (request for Advisory opinion submitted to the seabed Disputes chamber), Advisory opinion.
13. International Tribunal for the Law of the Sea, 1999, Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan). Provisional Measures, 1999.
14. Pree International Tribunal for the Law of the Sea, 1927, Case Concerning the Factory at Chorzow (Germany v Poland), Jurisdiction.
15. Pree International Tribunal for the Law of the Sea, 1929, Territorial Jurisdiction of the International Commission of the River Oder (Czechoslovakia, Denmark, France, Germany; Great Britain, Sweden/Poland.
1. D) Documents
2. Conference of the Parties serving as the meeting of the Parties to the Paris Agreement Second session Madrid. 2–13 December 2019. Agenda item 6. Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts.
3. Conference of the Parties Report of the Conference of the Parties on its twenty-fifth session. Held in Madrid from 2 to 15 December 2019. 16 March 2020. Part two: Action taken by the Conference of the Parties at its twentyfifth session.
4. IPCC 2019. IPCC Special Report on the Ocean and Cryosphere in a Changing Climate [H.-O. Pörtner, D.C. Roberts, V. Masson-Delmotte, P. Zhai, M. Tignor, E. Poloczanska, K. Mintenbeck, A. Alegría, M. Nicolai, A. Okem, J. Petzold, B. Rama, N.M. Weyer (eds.).
5. United Nations Depart clement of Public Information, 3 February 2012, Press Conference on Request for International Court of Justice Advisory Opinion on Climate Change. Available at http://www.un.org/ News/ briefings/docs/ 2012/120203_ICJ.doc.htm. Last accessed 17 March 2018.
6. http://www.un.org/depts/los/settlement of disputes/choice htm, last visited 6 July 2021.
References in Persian:
1. Books
2. Tanaka, Y. (2015). International Law of the Seas. translated by Armin Talat, Tehran: Shahr-e-Danesh Publications (In Persian(.
1. B) Articles
1. Piri, M. (2017). Reflection on the Legal Effects of the Islamic Republic of Iran's Accession to the Paris Agreement on Climate Change. Public Law Studies Quarterly, No. 48(4), 887-908 (In Persian(.
2. Ramezani Ghavamabadi, M. H. (2013). Comparative study of the implementation of the principle of environmental caution in the light of the opinions and decisions of international authorities. The Quarterly Journal of Public Law Research, 15 (40), 141-164 (In Persian(.
3. Salimi Turkmani, Hojjat (2017). From their legal responsibility to their moral responsibility in the field of dealing with climate change. Journal of Legal Studies of Shiraz University, 2(10), 105-133 (In Persian(.
1. C) Thesis
2. Fathi, B. (2015). The Role of the International Court of the Law of the Sea in the Protection of the Marine Environment, M.Sc. Thesis, Islamic Azad University, Central Tehran Branch (In Persian(.

Feasibility Litigation for the effects of climate change on the marine environment in the framework of the Convention on the Law of the Sea

References

References

Articles in Press, Accepted Manuscript Available Online from 20 March 2024

Articles in Press, Accepted Manuscript
Available Online from 20 March 2024