Ronald Sanders | On September 11, small island states get their day in court

Sustainable Development Goals (SDGs) and Small Island States

In the face of unremitting climate change threats and unfulfilled promises from industrialised nations, leaders of small island states have courageously taken matters into their own hands. Their frustration with lacklustre funding and inadequate solutions to fortify their countries against climate change has led them to pursue the power of the international legal system. They are seeking justice against those nations whose excessive greenhouse gas emissions pose an existential threat to their peoples.

The International Tribunal of the Law of the Sea (ITLOS)

The International Tribunal of the Law of the Sea (ITLOS) has consented to hear their groundbreaking case in which they are aiming to ascertain the legal responsibility of states for carbon emissions, marine pollution, rising sea levels, and the resultant damage inflicted on other states. The landmark hearing will take place in Hamburg from September 11 to 13.

It was just a short 21 months ago that the prime ministers of Antigua and Barbuda and Tuvalu, Gaston Browne and Kausea Natano respectively, showed extraordinary foresight and bravery by embarking on a novel legal journey to combat the threats of climate change to their peoples’ survival. A historic accord was signed on the sidelines of the COP26 meeting in Glasgow, giving birth to The Commission of Small Island States on Climate Change and International Law (COSIS) as an international body, registered with the United Nations Secretariat with a mandate to pursue the implementation of international law regarding climate change.

Today, their daring initiative is reaping results. Supported by an international team of legal experts and representatives from five other small island states, their plea for an Advisory Opinion was submitted to ITLOS on June 16.

CRUCIAL QUESTIONS

Two crucial questions are posed to the tribunal: First, what are the state parties’ obligations to prevent, reduce, and control marine environment pollution because of climate change effects, including ocean warming, sea level rise, and ocean acidification, all spurred by anthropogenic greenhouse gas emissions? Second, how must the marine environment be protected and preserved in the face of these climate change impacts?

Their choice to engage the international legal system is the culmination of years of frustration over industrialised nations’ seeming lip service and labyrinthine funding mechanisms, proposed at over years of meetings of the UN Committee of the Parties.

Often, pledges that are made do not offer additional money; in many cases the funds are repurposed from other promises that were not kept. Additionally, the dizzying number of new mechanisms that are supposedly set up is not only narrow in its purpose, but the means of accessing them are both obtuse and restrictive.

• The Global Shield Solutions Platform
• The InsuResilience Solutions Fund
• The Global Shield Financing Facility set up at the World Bank
• The Climate Vulnerable Forum & V20 Joint Multi-Donor Fund

Highlighting these inadequacies is the much-lauded ‘loss and damage’ fund, discussed for the first time at the 27th COP meeting in Egypt. While it was hailed as a breakthrough, the reality was a mirage. The practised and clever negotiators of the industrialised states at COP27 did not establish a fund nor the means to make it operational. They merely agreed to set up a transitional committee comprising representatives from 24 countries — 10 from developed countries, including the United States, and 14 from developing countries. The purpose of the committee is to make recommendations to COP28 in December 2023, including on what countries should contribute to the fund, how the fund will be administered, and what funding arrangements might be possible.

CONVOLUTED MECHANISMS

When these convoluted mechanisms are coupled with a 13-year failure by industrialised nations to deliver on the promise of providing US$100 billion annually in climate finance for low- and middle-income countries, the resolve of small island state leaders to seek justice through the international legal system is fully understandable.

In pursuing the establishment of COSIS and seeking an advisory opinion from ITLOS, the leaders of small island states were frequently discouraged from their path by governments of industrialised nations. The latter fear edicts from international legal bodies which, at the very least, establish their obligations. They much prefer non-binding negotiations such as the COP process in which their considerably greater skills and leverage give them an advantage.

Nonetheless, the small island state leaders pursued their cause relentlessly, understanding that the stakes are too high to acquiesce to pressure. Their commitment resonates with the words of Prime Minister Gaston Browne, who declared, “The time for empty promises is over.” The leaders have been joined by 33 other countries and nine international organisations in making submissions to ITLOS.

The upcoming ITLOS hearing in September is a significant milestone, with implications that could redefine the climate change landscape. The fight waged by the leaders of Antigua and Barbuda, The Bahamas, Niue, Palau, St Lucia, St Vincent and the Grenadines, and Vanuatu, through COSIS, is not just for their nations. It’s a fight for climate justice that will resonate across the globe.

Sir Ronald Sanders is Antigua and Barbuda’s ambassador to the US and the OAS. The views expressed are entirely his own. For responses and previous commentaries, visit www.sirronaldsanders.com.

SDGs, Targets, and Indicators

1. Which SDGs are addressed or connected to the issues highlighted in the article?

• SDG 13: Climate Action
• SDG 14: Life Below Water
• SDG 16: Peace, Justice, and Strong Institutions

2. What specific targets under those SDGs can be identified based on the article’s content?

• Target 13.1: Strengthen resilience and adaptive capacity to climate-related hazards and natural disasters in all countries
• Target 13.2: Integrate climate change measures into national policies, strategies, and planning
• Target 13.3: Improve education, awareness-raising, and human and institutional capacity on climate change mitigation, adaptation, impact reduction, and early warning
• Target 13.b: Promote mechanisms to raise capacity for effective climate change-related planning and management in least developed countries and small island developing states
• Target 14.1: By 2025, prevent and significantly reduce marine pollution of all kinds, particularly from land-based activities, including marine debris and nutrient pollution
• Target 14.2: By 2020, sustainably manage and protect marine and coastal ecosystems to avoid significant adverse impacts, including by strengthening their resilience, and take action for their restoration in order to achieve healthy and productive oceans
• Target 14.3: Minimize and address the impacts of ocean acidification, including through enhanced scientific cooperation at all levels
• Target 14.7: By 2030, increase the economic benefits to small island developing states and least developed countries from the sustainable use of marine resources, including through sustainable management of fisheries, aquaculture, and tourism
• Target 16.3: Promote the rule of law at the national and international levels and ensure equal access to justice for all

3. Are there any indicators mentioned or implied in the article that can be used to measure progress towards the identified targets?

No indicators are mentioned or implied in the article that can be used to measure progress towards the identified targets.

4. SDGs, Targets, and Indicators