China has opposed efforts by small island nations to require coastal states to protect the oceans and seas to stop the worsening effects of climate change.
Small islands in the Pacific such as Palau, The Bahamas, Vanuatu, Tuvalu, Antigua and Barbuda, are facing the existential threat of rising sea levels caused by climate change.
The island nations formed the Commission of Small Island States on Climate Change and International Law (COCIS) and sought for an advisory opinion of the United Nations maritime tribunal, the International Tribunal on the Law of the Seas (ITLOS), on the obligations of countries to combat climate change.
COCIS argued that ocean warming and ocean acidification have caused extreme weather disturbances that impact health, ecosystems, infrastructure, livelihoods and food all over the world.
In this regard, COCIS wants the ITLOS to determine the specific obligations of the members of the UN Convention on the Law of the Sea (UNCLOS) to prevent, reduce and control pollution of the marine environment, as well as protect and preserve the marine environment to stop ocean warming, sea level rise and acidification.
It cited the ITLOS’ Statute that part of its mandate is to issue advisory opinion on provisions related to the implementation of UNCLOS, regarded as the Constitution for the oceans.
COCIS argued that based on the 1999 South China Sea arbitration award, which the Philippines won against China, part of the general obligation of the coastal states is to “ensure that activities within their jurisdiction or control respect the environment of other states or of areas beyond national control.”
Since early this month, the seven-member tribunal has been conducting hearings in its courtroom in Hamburg, Germany. Aside from COCIS, other countries and international organizations were allowed to provide inputs to the small islands’ request.
Last Friday, China appeared before the Tribunal and expressed its opposition to the COCIS bid.
ITLOS, their diplomats argued, lacks jurisdiction to issue an advisory opinion.
“The full Tribunal does not have advisory competence. The competence of the Tribunal derives from the consent of States as reflected in the authorization given by the Tribunal’s constituent documents. As a matter of fact, UNCLOS and its Annexes, including the Statute of ITLOS (“Statute”), do not confer advisory jurisdiction on the full Tribunal,” Ma Xinmin, Director-General, Department of Treaty and Law, Ministry of Foreign Affairs, said.
China also took issue with the arguments of COCIS and other countries that UNCLOS members are obliged to protect the marine environment as cited in the South China Sea arbitration ruling.
“China notices that some States mentioned the so-called South China Sea arbitration awards in their written and oral statements. The position of China on this issue is clear and consistent. The arbitral tribunal in the South China Sea arbitration acted ultra vires, erred in fact finding, misinterpreted and perverted the law in adjudication. The so-called “awards” are null and void and should not be invoked as a legal basis,” Ma stressed.
The Chinese diplomat said while China “fully empathizes with the practical difficulties faced by many developing countries, including island States, in coping with climate change,” Beijing thinks that other international laws, such as the United Nations Framework Convention on Climate Change, Kyoto Protocol and Paris Agreement are the appropriate international laws that should address climate change.
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