An Opportunity to Protect Small Island Developing States and Preserve the Rights of Indigenous Peoples
By Steven Manso*
1. Introduction
In December 2022, the Commission of Small Island States (COSIS) transmitted to the International Tribunal for the Law of the Sea (ITLOS) a request for an advisory opinion relating to the following:
“What are the specific obligations of State Parties to the United Nations Convention on the Law of the Sea (‘UNCLOS’), including under Part XII:
(a) 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, including through ocean warming and sea level rise, and ocean acidification, which are caused by anthropogenic greenhouse gas emissions into the atmosphere?
(b) to protect and preserve the marine environment in relation to climate change impacts, including ocean warming and sea level rise, and ocean acidification?”
In March 2023, the UNGA adopted resolution 77/276 entitled “Request for an advisory opinion of the International Court of Justice (ICJ) on the obligations of States in respect of climate change.” The questions presented were as follows:
“(a) What are the obligations of States under international law to ensure the
protection of the climate system and other parts of the environment from
anthropogenic emissions of greenhouse gases for States and for present and
future generations?
(b) What are the legal consequences under these obligations for States where
they, by their acts and omissions, have caused significant harm to the climate
system and other parts of the environment, with respect to:
(i) States, including, in particular, small island developing States, which
due to their geographical circumstances and level of development, are
injured or specially affected by or are particularly vulnerable to the
adverse effects of climate change?
(ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?”
Since then, the ITLOS has delivered its advisory opinion, which contains implications for the protection of international human rights through State cooperation, as addressed in Part III below. Relatedly, while the ICJ has yet to deliver its advisory opinion on climate change, the regional perspectives of Pacific Island countries and territories (PICTs)[1] as expressed through their State, or State-affiliated, submissions illustrate how the ICJ has been presented with a crucial opportunity to protect Small Island Developing States (SIDSs) and preserve the rights of Indigenous Peoples on an international level in light of the ongoing global climate crisis.
2. Special Vulnerability of PICTs
In its advisory opinion, the ITLOS noted that the Intergovernmental Panel on Climate Change, in its 2023 Synthesis Report, stated that “climate change is a threat to human well-being and planetary health,” and that “[v]ulnerable communities who have historically contributed the least to current climate change are disproportionately affected.”[2] Significantly, the Pacific Islands Forum (PIF) Secretariat, in their written statement to the ICJ, stated that the relationship between climate change-related sea-level rise and maritime zones is of fundamental importance to the PIF region given that “96% of the Pacific region is ocean, and the ocean is at the heart of the region’s geography, cultures and economies.”[3]
In 2022, PIF Leaders declared that the Pacific was facing a “Climate Emergency that threatens the livelihoods, security, and wellbeing of its people and ecosystems.” For instance, in its written statement to the ICJ, the Republic of Palau stated that climate change was causing direct harm to Palau and its marine environment: “water temperatures at or above 30ºC may cause coral ‘bleaching,’...and if the high-end sea-level rise scenarios (2.0m-2.5m) come to pass, large portions of several Palauan states will be underwater by 2100.”[4]
Additionally, in its written statement to the ICJ, the Federated States of Micronesia emphasized that it is part of a large political and legal grouping of PICTs controlling over 27 million square kilometers of maritime space, with the region covered by PICTs encompassing more than a quarter of the world’s coral reefs.[5] A consequence of anthropogenic greenhouse gas (GHG) emissions, ocean acidification weakens these coral reef systems, deteriorates the primary habitats of reef fish, and impairs the ability of PICTs to manage such biological diversity.[6] Fish and shellfish are essential for food security in many PICTs: “fish consumption per person in some PICTs [is] at least three times greater than the global average. In 17 PICTs, nearly half of all households earn their primary or secondary incomes from subsistence fishing.”[7]
In this sense, the impacts of ocean acidification, ocean warming, and other consequences of anthropogenic GHG emissions present devastating consequences for many PICTs as it will not be possible for them and many other SIDSs to adapt to the tipping points of vulnerable climate systems. Another aspect of special vulnerability for the Pacific region is that many PICTs that are considered “linked to” other countries, as opposed to being independent Pacific Island countries, such as American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, French Polynesia, New Caledonia, and the Pitcairn Islands, are not being afforded special consideration, if not completely overlooked, by their respective sovereign States in corresponding submissions to the ICJ.[8]
3. Legal Obligations & State Submissions
In light of the devastating consequences of the climate crisis on SIDSs, the interpretation of the ITLOS in its advisory opinion, as well as the regional perspectives expressed through the submissions of PICTs, and PICT-affiliated entities present a unique opportunity for the ICJ to protect SIDSs and preserve the rights of Indigenous Peoples.
With regard to part (a) of the question presented, the ITLOS stated that while article 193 of UNCLOS recognizes the sovereign right of States to exploit their natural resources pursuant to their environmental policies, States’ exercise of this sovereign right is constrained “in accordance with their duty to protect and preserve the marine environment.”[9] Additionally, with respect to part (b), the ITLOS clarified that Article 61 of UNCLOS identifies both the purpose of conservation and management measures and the factors to be taken into account in taking such measures; States retain discretion in determining the particular measures to achieve the stated objectives.[10] Significantly, the ITLOS opinion quoted the ICJ in the Fisheries Jurisdiction Case, commenting on articles 61 and 62 of UNCLOS: “[a]ccording to international law, in order for a measure to be characterized as a ‘conservation and management measure,’ it is sufficient that its purpose is to conserve and manage living resources.”[11] Furthermore, as the ITLOS stated in the Southern Bluefin Tuna cases, “the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment,”[12] an obligation that requires measures that may vary over time depending on the activities involved and the threats to the marine environment.[13]
Notably, in its written comments to the ICJ, the PIF Secretariat submitted that the ICJ’s answers to the request for an advisory opinion should emphasize that the maritime zones of States, as established and notified to the Secretary General of the UN in accordance with the 1982 UNCLOS, and the rights and entitlements that flow from them, shall continue to apply, without reduction, notwithstanding any physical changes connected to climate change-related sea-level rise given the wide and strong support for the agreed PIF collective position expressed in the 2021 PIF Maritime Zones Declaration.[14]
In this sense, the ICJ has a unique opportunity to protect SIDSs by adopting the PIF collective position that fixed baselines are permitted as a “conservation and management measure” in alignment with States’ obligation to protect and preserve the marine environment. In the words of the PIF Secretariat, “preserving maritime zones in the manner set out in the 2021 Declaration contributes to a just international response to climate change-related sea-level rise and towards the goal that the legal rights and entitlements of PIF Members are not lost nor challenged due to sea-level rise.”[15] The Federated States of Micronesia also submitted that UNCLOS does not require adherence to an ambulatory theory of baselines: “UNCLOS does not impose an obligation on coastal State Parties to keep their maritime baselines under review nor to update charts or lists of geographic coordinates of points once deposited with the Secretary-General of the UN.”[16]
On another note, the ITLOS has also clarified that in the context of marine pollution from anthropogenic GHG emissions, States with greater means and capabilities must do more to reduce such emissions than States with less means and capabilities.[17] The ITLOS noted in this regard that both the UNFCCC and the Paris Agreement recognize the principle of common but differentiated responsibilities and respective capabilities (CBDRRC) as a key principle in their implementation. Article 3 of the UNFCCC refers to this principle as one of the principles to guide the Parties in their actions to achieve the objective of that Convention and to implement its provisions. Article 2, paragraph 2, of the Paris Agreement also states that “[t]his Agreement will be implemented to reflect equity and the principle of [CBDRRC], in the light of different national circumstances.”[18]
The Tribunal notes that articles 202 and 203 of UNCLOS do not refer to the principle of CBDRRC; however, the obligation of assistance to developing States under these articles has some elements underlying this principle in that States with lesser capabilities need assistance from States that are better placed in order to meet their environmental responsibilities.[19] This principle is also reflected in the submission of the Federated States of Micronesia, “[u]nder international law, with respect to addressing global environmental harm, the principle of [CBDRRC] has two main elements: all States have a common responsibility to protect the natural environments of the planet from anthropogenic harms, but each State’s share of that responsibility is qualified by its historical contribution to the harm and its degree of development.”[20]
Central to the principle of CBDRRC are the key elements of equity, justice, and fairness involved in the recognition of differing degrees of contributions by different States to the environmental harms at issue, as well as differing degrees of the economic development of the States involved in the matter.[21] These key elements are of particular interest to SIDSs like the Federated States of Micronesia, which are among the lowest contributors to anthropogenic GHG emissions and are among the least developed of States, but which are disproportionately harmed by such emissions.[22]
Part of this recognition of CBDRRC, the 2023 PIF Statehood Declaration is consistent with important principles and rights of international law, including: the right of peoples to self-determination, the right to a nationality, the protection of territorial integrity and political independence, principles of equity and fairness, the maintenance of international peace and security which in turn requires stability in international relations, the right of a State to provide for its preservation, the duty of cooperation, the sovereign equality of States, and permanent sovereignty over natural resources.[23] Significantly, Member States of the UN have a duty to assist “in good faith” the pursuit of the UN’s purposes, including the achievement of “international cooperation in solving international problems of an economic, social, cultural, or humanitarian character,” such as climate change, “and in promoting and encouraging respect for human rights and for fundamental freedoms,” such as those belonging to populations which are threatened by climate change and its deleterious impacts, like SIDSs.[24]
In other words, by adopting the PIF collective position that fixed baselines are permitted as a “conservation and management measure” designed to preserve the marine environment under Articles 61 and 62 of UNCLOS, and by incorporating the principles of CBDRRC and equity in its answer to the request for an advisory opinion with respect to States’ duties of international cooperation, the ICJ can both protect the rights of SIDSs as sovereign nations as well as preserve the human rights of populations living within such States.
4. Implications for Future Generations & Regional Insights
Furthermore, principles of intragenerational and intergenerational equity recognize that the planet is shared by all individuals from present and future generations of humankind, and that States are obligated to ensure these generations are able to meet their needs from, and otherwise continue to enjoy, the resources of the planet in perpetuity.[25] Central to this understanding, Indigenous Peoples as collective right-holders under international law, deserve careful and particular attention by the ICJ in light of part (b)(ii) of the request for an advisory opinion addressing “[p]eoples and individuals of the present and future generations affected by the adverse effects of climate change.”[26]
Indigenous Peoples, whether individually or as a collective, can invoke State Responsibility for internationally wrongful acts and seek reparations thereto, particularly in connection with harmful impacts of anthropogenic GHG emissions on their individual and collective rights, including those rights whose enjoyment are dependent at least in part on a clean and healthy natural environment.[27] Among these rights is the right of Indigenous Peoples “to maintain, protect and develop the past, present and future manifestations of their cultures,” as enshrined in the 2007 UN Declaration on the Rights of Indigenous Peoples.[28] Notably, in its written statement to the ICJ, Palau concluded that “an advisory opinion by this Court confirming that the well-established principles of Transboundary Harm and State Responsibility apply to climate change would be a significant building block for States as they continue to develop national policies and international agreements to address the causes and consequences of climate change.”[29] Related to the principles of State Responsibility, Palau also clarified that full reparation encompasses damage to “the living space, the quality of life and the very health of human beings, including generations unborn.”[30]
Additionally, the Federated States of Micronesia also stated that protection of the climate system and environment from harmful effects of anthropogenic GHG emissions for present and future generations requires application of international obligations owed to groups of individuals, including the protection of human rights and the collective rights of Indigenous Peoples, as well as consideration of the principles of intergenerational and intragenerational equity.[31] Significantly, anthropogenic GHG emissions impact elements of the natural environment on which cultural heritage, and traditional knowledge of Indigenous Peoples are based, including those pertaining to seeds, medicine, and knowledge about the properties of fauna and flora; which infringes on the enjoyment of Indigenous Peoples’ collective rights under the ICESCR and CERD.[32]
In this sense, by adopting the regional perspectives of PICTs concerning the principles of intergenerational and intragenerational equity and the application of the rules of State Responsibility to reparation for environmental harm, the ICJ possesses an opportunity to preserve the rights of Indigenous Peoples both of present and future generations.
5. Conclusion
In the interpretation of treaties, such as those pertaining to climate change, article 31, paragraph 3(c), of the Vienna Convention on the Law of Treaties requires that account be taken, together with the context, of any relevant rules of international law applicable in the relations between the parties.[33] This method of interpretation ensures, as observed by the ICJ, that treaties do not operate in isolation but are “interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation.”[34]
As part of this legal system, by recognizing the collective perspectives expressed in submissions of international organizations that non-independent PICTs are members of as crystallizing norms of customary international law, the ICJ can not only mitigate the gap presented by the neglect of these territories in the submissions of their respective sovereign States and the absence of them having independent voices to address the urgency of the global climate crisis for the Pacific region, but also preserve the rights of Indigenous Peoples residing in such non-independent PICTs and similarly-situated island territories whose cultural practices and ways of life are at risk of being flooded out.
In light of relevant rules of international law pertaining to climate change such as the obligation to protect and preserve the marine environment through conservation and management measures; the principle of CBDRRC; the principles of intergenerational and intragenerational equity; the rules of State Responsibility; and the collective rights of Indigenous Peoples, the ICJ possesses a unique opportunity to both protect SIDSs and preserve the rights of present and future generations of Indigenous Peoples by adopting the regional perspectives of PICTs on the obligations of States regarding climate change.
*Steven Manso is Guatemalan-Cuban American and a student at the William S. Richardson School of Law, University of Hawaiʻi at Mānoa.
[1] For the purposes of this blog post, the grouping of PICTs here mirrors that reflected in FN26 of the Written Statement of the Federated States of Micronesia, ¶25 (There are 22 Pacific Island countries and territories (“PICTs”) in this grouping. 14 of those PICTs are independent Pacific Island countries that traditionally coordinate as a group called the Pacific Small Island Developing States (“PSIDS”) in various Ocean-related multilateral fora (e.g., the United Nations Framework Convention on Climate Change, the Convention on Biological Diversity). Those fourteen PSIDS are: Cook Islands, the Federated States of Micronesia, Fiji, Kiribati, the Marshall Islands, Nauru, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu, and Vanuatu. The remaining 8 PICTs are: American Samoa, Commonwealth of the Northern Mariana Islands, French Polynesia, Guam, New Caledonia, Pitcairn Islands, Tokelau, and Wallis and Futuna. These remaining PICTs are territories or are otherwise similarly classified as linked to (if not part of) other countries (i.e., the United States of America, France, New Zealand, and the United Kingdom), as opposed to being independent Pacific Island countries.).
[2] ITLOS, Advisory Opinion at ¶66.
[3] PIF Secretariat, Written Statement to the ICJ at ¶19.
[4] Republic of Palau, Written Statement to the ICJ at ¶8.
[5] Federated States of Micronesia, Written Statement to the ICJ at ¶¶25-26.
[6] Id.
[7] Id. at ¶28.
[8] See United States of America, Written Statement to the ICJ; United States of America, Written Comments to the ICJ; French Republic, Written Statement to the ICJ; French Republic, Written Comments to the ICJ; United Kingdom, Written Statement to the ICJ; United Kingdom, Written Comments to the ICJ.
[9] ITLOS, Advisory Opinion at ¶187.
[10] Id. at ¶413.
[11] Id. (citing Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 432, at p. 461, para. 70).
[12] Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999, p. 280, at p. 295, para. 70.
[13] ITLOS, Advisory Opinion at ¶409.
[14] PIF Secretariat, Written Comments to the ICJ at ¶¶3, 9 (citing Written Statements of: Australia; Dominican Republic; Federated States of Micronesia; Pacific Islands Forum Fisheries Agency; New Zealand; Solomon Islands; Tonga; Vanuatu).
[15] PIF Secretariat, Written Statement to the ICJ at ¶24.
[16] Federated States of Micronesia, Written Statement to the ICJ at ¶115.
[17] ITLOS, Advisory Opinion at ¶227.
[18] Id. (citing Paris Agreement at art. 2, ¶2.).
[19] ITLOS, Advisory Opinion at ¶326.
[20] Federated States of Micronesia, Written Statement to the ICJ at ¶67.
[21] Id. at ¶70.
[22] Id.
[23] PIF Secretariat, Written Comments to the ICJ at ¶12. (citing Written Statements of: Dominican Republic; Melanesian Spearhead Group; Sierra Leone; Solomon Islands; Tonga).
[24] CIEL, Written Statement to the ICJ at ¶92 (citing U.N. Charter, at arts. 1(3), 2(2), 2(5)).
[25] Federated States of Micronesia, Written Statement to the ICJ at ¶71.
[26] Id. at ¶81.
[27] Id. at ¶133.
[28] Id. at ¶74; UN Declaration on the Rights of Indigenous Peoples at art. 11(1).
[29] Palau, Written Statement to the ICJ at ¶27.
[30] Id. at ¶23.
[31] Federated States of Micronesia, Written Statement to the ICJ at ¶48.
[32] See id. at ¶¶84-85, 83.
[33] ITLOS, Advisory Opinion at ¶135.
[34] Id. (citing Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16, at p. 31, para. 53).
DISCLAIMER: The views expressed in the symposium’s blog posts are those of the author and do not represent the views of WYCJ. Furthermore, university chapters were prepared, edited, and approved by the respective universities; WYCJ cannot guarantee the level of scientific and legal inquiry, nor the content of blog posts.