Written statement of the Parties to the Nauru Agreement Office

INTERNATIONAL COURT OF JUSTICE
OBLIGATIONS OF STATES IN RESPECT OF CLIMATE CHANGE
(REQUEST FOR AN ADVISORY OPINION)
WRI TTEN STATEMENT OF THE PARTIES TO THE NAURU
AGREEMENT OFFICE
Contents
PART A ..................................................................................................................................................... 1
I. QUESTION POSED TO THE COURT BY THE UN GENERAL ASSEMBLY ..................................... 1
PART B ..................................................................................................................................................... 2
II. THE INTERESTS OF THE PARTIES TO THE NAURU AGREEMENT OFFICE IN THE ADVISORY
PROCEEDINGS BEFORE THE COURT .................................................................................................. 2
Ill. PNA VESSEL DAY SCHEME ....................................................................................................... 3
IV. THE SUCCESS OF THE PNA-VDS ............................................................................................... 3
V. POTENTIAL IMPACTS OF CLIMATE CHANGE TO THE PNA-VDS .............................................. 4
VI. PELAGIC FISHERIES .................................................................................................................. 5
VII. SEA LEVEL RISE ........................................................................................................................ 6
PART C ..................................................................................................................................................... 7
VIII. LEGAL OBLIGATIONS ............................................................................................................... 7
Charter of the United Nations ......................................................................................................... 7
United Nations Convention on the Law of the Sea .......................................................................... 7
United Nations Framework Convention on Climate Change and the Paris Agreement .................. 9
Duty of Due Diligence .................................................................................................................... 10
Principle of prevention of significant harm to the environment ................................................... 10
PARTD ................................................................................................................................................... 11
IX. LEGAL CONSEQUENCES ......................................................................................................... 11
Cause harm to the value of the PNA-VDS ...................................................................................... 12
Displacement of tuna from PNA EEls ........ .................................................................................... 13
X. CONCLUDING REMARKS ....................................................................................................... 14
XI. FIGURES AND TABLES ............................................................................................................ 16
PART A
I. QUESTION POSED TO THE COURT BY THE UN GENERAL ASSEMBLY
1. The United Nations General Assembly, at its sixty-fourth plenary meeting, adopted resolution
77 /276 entitled "Request for an advisory opinion of the International Court of Justice on the
obligations of States in respect of climate change". In its resolution, the General Assembly
decided, in accordance with Article 96 of the Charter of the United Nations, to request the
International Court of Justice to render an advisory opinion pursuant to Article 65 of the
Statute of the Court, on the following question:
Having particular regard to the Charter of the United Nations, the International Covenant on
Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights,
the United Nations Framework Convention on Climate Change, the Paris Agreement, the
United Nations Convention on the Law of the Sea, the duty of due diligence, the rights
recognized in the Universal Declaration of Human Rights, the principle of prevention of
significant harm to the environment and the duty to protect and preserve the marine
environment,
(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?
2. This written statement is presented by the Parties to the Nauru Agreement Office (PNAO)
under Article 66 of the Court's Statute, pursuant to the Court's decision that the PNAO is likely
to be able to furnish information on these question1
. The question posed by the General
Assembly is clear and specific, so the statement presented here will seek to respond to the
question, specifically in the context of the Nauru Agreement Concerning Cooperation in the
Management of Fisheries of Common Stocks, as well as related instruments. This written
statement by the PNAO is provided without prejudice to the positions of individual Parties.
1 International Court of Justice Press Releas.e 2024/20
1
PART B
II. THE INTERESTS OF THE PARTIES TO THE NAURU AGREEMENT OFFICE IN THE
ADVISORY P ROCEEDINGS BEFORE THE COURT
3. The Nauru Agreement Concerning Cooperation in the Management of Fisheries of Common
Stocks2 (Nauru Agreement) was adopted in 1982. The Parties to the Nauru Agreement seek in
a cooperative manner, without any derogation of their respective sovereign rights, coordinate
and harmonise the management of fisheries with regard to common stocks within their
exclusive economic zones3 (EEZ), for the benefit of their peoples. The Parties to the Nauru
Agreement have agreed to establish, as a minimum, uniform terms and conditions under
which the Parties may licence fishing vessels to fish within their EEZs. The Nauru Agreement
established the Parties to the Nauru Agreement Office (PNAO), tasked with coordinating the
implementation of the provision of the Nauru Agreement as an umbrella agreement, and
other arrangements concerning the Parties. There are two arrangements that operate under
the Nauru Agreement: the Palau Arrangement for the Management of the Western Pacific
Fishery4 and the Federated States of Micronesia Arrangement for Regional Fisheries Access
adopted in 19955
. This written statement is submitted by the PNAO, without prejudice to the
positions of individual Parties.
4. The Parties to the Nauru Agreement (PNA) include the Federated States of Micronesia, Kiribati,
Marshall Islands, Nauru, Palau, Papua New Guinea, Solomon Islands, and Tuvalu. The New
Zealand territory ofTokelau participates in the fisheries management arrangements, including
decision making, established under the Palau Arrangement for the Management of the
Western Pacific Fishery, through a memorandum of understanding with the Parties to the
Palau Arrangement. Tokelau participates as an observer at the meetings of the PNA.
5. As an entity established by the Nauru Agreement to assist with the management of the key
marine living resources of Small Island Developing States that are Parties to the Nauru
Agreement, the PNAO has a close and vital interest in the Court's advisory proceedings on this
matter.
6. Indeed, the question before the Court specifically highlight the implications for "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." All the Parties to the Nauru Agreement fall within this category,
and, indeed, for all Parties to the Nauru Agreement, the impacts of climate change to their
cooperative fisheries management and fisheries development arrangements are projected to
be substantial.
2 As amended in 2010.
3 UNCLOS Article 55.
4 As amended in 2010.
5
As amended in 2022.
2
Ill. PNA VESSEL DAY SCHEME
7. The PNA Vessel Day Scheme (PNA-VDS), is the fisheries management framework used by the
PNA to manage their tuna fisheries, collectively, in their EEZs. The PNA-VDS has at its core, a
collective approach to the application of sovereign rights6 relating to the conservation7 and
utilization of living resources8, throughout the breadth of the EEZs9 of the 8 PNA countries and
Tokelau, through joint management arrangements10
•
8. The PNA, together with Tokelau, manage the largest tuna fishery in the world11
. The PNA-VDS
limits fishing effort, defined in terms of fishing days, to an annual Total Allowable Effort (TAE).
The TAE is allocated, among the eight sovereign PNA countries, as a set of Party Allowable
Effort limits (PAEs), based largely on recent effort history. Tokelau has a separate TAE/PAE that
is adjusted in relation to changes to the PNA TAE. Parties can trade PAE days and use a range
of other PNA-VDS provisions; however total effort is maintained within the overall TAE.
IV. THE SUCCESS OF THE PNA-VDS
9. The PNA-VDS collectively covers an area of 13,336,380 km2. This area is some of the most
productive tuna grounds in the Pacific, producing annually, on average, between 2020-2022,
about 1,450,000 metric tonnes. Taking a collective approach to fisheries management in their
EEZs, the PNA manage these valuable tuna species, in their EEZs, but also influence their
management throughout the Western and Central Pacific Ocean through the Western and
Central Pacific Fisheries Commission, the relevant regional fisheries management
organisation. The WCPFC has, currently, the most productive tuna stocks in the world that are
managed sustainably, as illustrated in Figure 1, that indicates the level of production and is
traffic light coded to indicate the current status of the stocks for the main tuna species.
10. The PNA have been able to leverage that success to support their domestic development
aspirations. The PNA-VDS was introduced in 2006 and the expansion of access fees for foreign
fishing has been substantial between 2007 and 2021. This growth can be attributed, in large
part, to the PNA-VDS for the management of purse-seine fisheries in the region12
. Figure 2
illustrates the change in time of vessel nationality in the Western and Central Pacific Ocean.
The PNA has leveraged that to entice fishing companies to register as domestic companies,
and secure additional benefits in terms of infrastructure development, processing facilities,
employment, taxes and increased participation in the value chain for tuna. For the PNA,
fisheries related revenue from the VDS, contributes a large portion of the total government
revenue annually, and constitutes a large percentage of gross domestic product in 202113
• This
important sector of the economy is most at risk from the effects of climate change.
6 UNCLOS Article 56(1)(a).
7 UN CLOS Article 61.
8 UNCLOS Article 62.
9 UNCLOS Article 57.
10 UNCLOS Article 63.
11 Chapter 12 (FAQ Fisheries and Aquaculture Technical Paper No. 667}: T he Parties to the Nauru Agreement
(PNA) 'Vessel Day Scheme': A cooperative fishery management
12 Fisheries in the Economies of Pacific Island Countries and Territories. 2023, Benefish Study 4 Report. SPC.
13 See footnote 12.
3
V. POTENTIA L IMPACTS OF CLIMATE CHANGE TO THE PNA-VDS
11. The most recent Intergovernmental Panel on Climate Change (IPCC) Sixth Assessment Report
(AR6 Report) indicates that current nationally determined contributions (NDCs), under the
Paris Agreement, are not sufficient to achieve the objectives of holding the increase in the
global average temperature to well below 2°C above pre-industrial levels and pursuing efforts
to limit the temperature increase to l.5°C above pre-industrial levels. To achieve these targets
will require substantial increases in efforts under NDCs. This will involve rapid, deep and, in
most cases, immediate greenhouse gas emission reductions as indicated in Figure 3.
12. The PNA works closely with other Pacific regional bodies and agencies. A key partner is the
Pacific Community (SPC), which is the region's primary scientific and technical organisation,
whose mandate and work programme have addressed issues relating to climate change,
fisheries, marine ecosystems, and coastal geoscience, for decades. SPC has worked, together
with Pacific Island countries and territories, to create a better understanding of the impacts of
climate change and tropical Pacific fisheries and aquaculture14
. In support of the PNA, the
PNAO has contributed to work related to improving the understanding of fisheries, climate
change and the potential impacts to the tuna fisheries of the PNA through the VDS15
.
13. The PNA VOS was designed from the start to take into account climate variability in the form
of the variations in the distribution and abundance of skipjack tuna across the equatorial
Pacific Ocean associated with El Nino Southern Oscillation (ENSO) events, which tuna
distribution and fishing effort is sensitive to in the Pacific. Historically, ENSO events occurred,
on-average, every 7 years, but, more recently, ENSO events are becoming more frequent and
varying in intensity. Historically, during La Nina events, most fleets prefer to fish in the west of
the region, and PNA countries located there can buy days from those in the east. The converse
generally occurs during El Nino episodes. The PNA-VDS ensures that the benefits of this fishery,
which underpin the economies of many of the Parties to the Nauru Agreement, can be
distributed equitably, regardless of where the fish are caught within their EEZs. However,
adaptations to climate change-driven redistribution of tuna from the EEZs of the PNA, into
high-seas areas, are also needed.
14. Table 1 provides information on the average projected changes in purse-seine catch from the
EEZs of tuna dependent Pacific Small Island Developing States (SIDS) and territory, inclusive of
the PNA. These are presented as the percentage difference between a ten-year average purseseine
tuna catches in tonnes (t) from the EEZs of ten Pacific SIDS and high-seas areas together
with average projected changes to these catches by 2050 in tonnes and percentage terms
under the RCP 8.5 and RCP 4.5 emissions scenarios.
14 Vulnerability of Tropical Pacific Fisheries and Aquaculture to Climate Change, 20111 SPC
15 pathways to sustaining tuna-dependent Pacific Island economies during climate change, 2021, Nature
Sustainability.
4
15. Table 2 provides information on average government revenue (excluding grants), tuna-fishing
access fees and the percentage of government revenue derived from access fees for ten tunadependent
Pacific SIDS between 2015 and 2018, together with estimated changes in purseseine
tuna catch, access fees and government revenue, by 2050 under the RCP 8.5 and RCP
4.5 emissions scenarios.
16. The SPC provides relevant scientific and technical advice to the PNA and its Members. The
following information summarises information previously included in a written statement
presented by the SPC in advisory proceedings before the International Tribunal for the Law of
the Sea (ITLOS).
VI. PELAGIC FISHERIES
17. Around 55 % of the world's tuna landings come from Western and Central Pacific waters, while
47 % of Pacific households list fishing as either a primary or secondary source of income, with
national fish consumption in the Pacific islands being three to four times the global average.
Pacific Ocean-based shipping and tourism provides USO 3.3 billion each year to the national
economies of Pacific Island Countries and Territories.
18. Recent science in a published study called Pathways to sustaining tuna-dependent Pacific
Island economies during climate change16 highlights the impacts of climate change on tuna in
the region under different scenarios. Climate change is driving tuna further to the east and
into the high seas, threatening the economic and food security of Pacific Small Island
Developing States:
a. Climate-driven redistribution of tuna threatens, not only to disrupt Pacific Small Island
Developing States' economies, but the sustainable management of the _world's largest
tuna fishery.
b. By 2050, under a high greenhouse gas emissions scenario (RCP 8.5), the total biomass
of three tuna species in the waters of ten Pacific Small Island Developing States could
decline by an average of 13 % (range= -5 % to -20 %), due to a greater proportion of
fish occurring in the high seas.
c. The potential implications for Pacific Island economies in 2050 include an average
decline in purse-seine catch of 20 % (range= -10 % to -30 %), an average annual loss
in regional tuna-fishing access fees of USD 90 million (range = -USD 40 million to -
USD 140 million) and reductions in government revenue of up to 13 % (range= -8 %
to -17 %) for individual Pacific Small Island Developing States.
16 See footnote 15.
5
d. There is also the likelihood that a rise in ocean temperatures may cause the
displacement of tuna stocks from waters in which they have traditionally been located.
There is significant uncertainty as to what impact changes in ocean temperatures
might cause tuna and small pelagic stocks upon which tuna feed. A displacement
would have a significant impact upon the economies of Pacific Small Island Developing
States.
e. Redistribution of tuna under a lower-emissions scenario (RCP 4.5) is projected to
reduce the purse-seine catch from the waters of Pacific Small Island Developing States
by an average of only 3 % (range = -12 % to +9 %), indicating that even greater
reductions in greenhouse gas emissions, in line with the Paris Agreement, would
provide a pathway to sustainability for tuna-dependent Pacific Island economies.
VII. SEA LEVEL RISE
19. Global mean sea level is rising and accelerating. Global mean sea level will rise between 0.43
m and 0.84 m (depending on emission scenarios) by 2100 relative to 1986-2005. There is a 17
% chance that Global mean sea level will exceed 1.10 m under the highest emission scenario
in 2100.
20. Under the highest emission scenario, the rate of sea level rise will be 15 mm per year (10- 20
mm per year, likely range) in 2100, and could exceed several cm per year in the 22nd century.
For Pacific Islands, Global mean sea level is compounded by the vertical movement of the
islands themselves, due to tectonic or human activities, which can increase the impact of
Global mean sea level rise.
21. Due to projected Global mean sea level rise, extreme sea level events that are historically rare
(for example, today's hundred-year event) will become common by 2100 under all emission
scenarios. More recent science presented at the United Nations Framework Convention on
Climate Change (UNFCCC) meetings in June 2023 noted a growing body of research that
confirms 2•c warming above pre-industrial is insufficient to slow rates of global sea level rise.
Only SSPl- 1.9, with temperatures peaking around l.6° C and levelling off below 1.5° C, avoids
long-term acceleration of sea level rise. Sea level continues to accelerate even after rate of
warming slows.
22. PNA Leaders, at their 2nd Summit in 2018, committed to pursue legal recognition of the defined
baselines under the United Nations Convention on the Law of the Sea (UNCLOS) to remain in
perpetuity irrespective of the impacts of sea level rise17
. This objective is also reflected in the
17 2018 Delap Commitment on Securing our common wealth of oceans - reshaping the future to take control of
fisheries.
6
Pacific Islands Forum Leaders Declaration on Preserving Maritime Zones in the Face of Climate
Change-Related Sea-Level Rise18 in 2021.
PARTC
VIII. LEGAL OBLIGATIONS
Charter of the United Nations
23. The United Nations Charter recognises that "conditions of stability and well-being" are
"necessary for peaceful and friendly relations among nations, based on respect for the
principle of equal rights and self-determination of peoples"19
.
24. Although the United Nations Charter does not specifically address environmental matters, the
General Assembly, in furtherance of its responsibilities under the Charter, has taken significant
action in this respect. The General Assembly has adopted many important resolutions
regarding the environment, has established standing bodies and programmes to deal with
particular environmental issues, and has held major international conferences and meetings
to address the subject. The impacts of climate change will have a bearing on the pursuit of the
United Nations Sustainable Development Goals (SDG) by the PNA, specifically in relation to
SDG 13 "Take urgent action to combat climate change and its impacts", and SDG 14 "Conserve
and sustainably use the oceans, seas and marine resources for sustainable development".
25. Consistent with this, there has been a developing awareness, in the international community,
of the threats posed by anthropogenic emissions of greenhouse gases, including the significant
adverse impacts - in some cases, existential impacts on lives, livelihoods, and natural
ecosystems20
- that these present for some vulnerable States, such as the PNA.
United Nations Convention on the Law of the Sea
26. UNCLOS stipulates that States have the obligation to protect and preserve the marine
environment21
. The Convention, as a product of its time, does not directly address GHG
emissions or climate change. The question put to the Court raises the issue of whether
anthropogenic greenhouse gas ("GHG") emissions fall within the definition of "pollution of the
marine environment" under Article 1(1)(4) of UNCLOS. UNCLOS broadly defines the term
"pollution of the marine environment" as,
the introduction by man, directly or indirectly, of substances or energy into the marine
environment. .. which results or is likely to result in such deleterious effects as harm to living
resources and marine life ....
18 PIF Leaders Declaration on Preserving Maritime Zones in the Face of Climate Change-related Sea-Level Rise.
2021
19 Article SS
20 Tuvalu National Statement for the World Leaders Summit at UNFCCC COP26. 2021.
21 Article 192
7
27. This is relevant to Part XII of UNCLOS, that imposes specific obligations on States Parties to
prevent, reduce and control pollution of the marine environment. Article 194 of UNCLOS
outlines the obligations of States Parties to take measures necessary to prevent, reduce and
control pollution of the marine environment. Article 194 (1), (2), (3) deal with three areas of
obligations, take measures to prevent, reduce and control pollution of the marine
environment from any source, prevention of transboundary harm and measure to be taken
according to sources of pollution.
28. The word "anthropogenic", is taken to mean 'as a result of human activities. The term
"greenhouse gases" is not used or defined in UNCLOS, although it is defined in other
international agreements, including the UNFCCC22
. The most recent Intergovernmental Panel
on Climate Change (IPCC) Sixth Assessment Report (AR6 Report) provides a more readily
understood definition, as referring to gases in the atmosphere, such as carbon dioxide ("CO2" ),
methane and nitrous oxide, which can absorb infrared radiation, trapping heat in the
atmosphere23
•
29. Taken together, these meet the definition of substances which may have harmful or
deleterious effects on the marine environment, either directly or indirectly, within the
meaning of Article 1(1)(4) of UNCLOS. It then follows that those provisions of UNCLOS that
concern measures to prevent, reduce and control pollution of the marine environment, may
be relevant in ascertaining States Parties' obligations in respect of anthropogenic GHG
emissions.
30. These obligations should be read in conjunction with Article 237, that sets out the obligations,
under other conventions, on the protection and preservation of the marine environment,
which says,
The provisions of this Part are without prejudice to the specific obligations assumed by States
under special conventions and agreements concluded previously which relate to the protection
and preservation of the marine environment and to agreements which may be concluded in
furtherance of the general principles set forth in this Convention.
31. The UNFCCC and the Paris Agreement reflect the internationally accepted standard of conduct
agreed by States Parties to prevent, reduce and control GHG emissions in order to protect and
preserve the environment, including the marine environment. It is important that the
obligations under UNCLOS be considered together with the spirit of the agreements and the
obligations under the UNFCCC and the Paris Agreement.
22 3 UNFCCC (n 6) Article 1(5) defines "Greenhouse gases" as "those gaseous constituents of the atmosphere,
both natural and anthropogenic, that absorb and re-emit infrared radiation".
23 Intergovernmental Panel on Climate Change (IPCC), Synthesis Report of the IPCC Sixth Assessment Report
(AR6) (2023) Annex I Glossary, 9
8
United Nations Framework Convention on Climate Change and the Paris Agreement
32. Article 2 of the UNFCCC, sets out the objective of the Convention, which is the "stabilization
of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous
anthropogenic interference with the climate system".24 The "climate system" is defined in
Article 1(3) of the UNFCCC as meaning "the totality of the atmosphere, hydrosphere,
biosphere and geosphere and their interactions." The specific reference to the hydrosphere,
includes the marine environment within the "climate system" referenced by the UNFCCC.
33 . Article 2 of the UNFCCC goes further to set a timeframe for such a level should be achieved,
to allow ecosystems to adapt naturally to climate change, to ensure that food production is
not threatened and to enable economic development to proceed in a sustainable manner.
34. The targets for stabilizing GHG concentrations in the atmosphere at a level that would prevent
dangerous anthropogenic interference are set out in Article 2(a) of the Paris Agreement, which
says,
This Agreement, in enhancing the implementation of the Convention, including its objective,
aims to strengthen the global response to the threat of climate change, in the context of
sustainable development and efforts to eradicate poverty, including by ... Holding the increase
in the global average temperature to well below 2"C above pre-industrial levels and pursuing
efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that
this would significantly reduce the risks and impacts of climate change ..
35. Article 4 of the Paris Agreement further underscores the second element of Article 2 of the
UNFCCC, in relation to a timeframe for such a level should be achieved, to allow ecosystems
to adapt naturally to climate change, to ensure that food production is not threatened and to
enable economic development to proceed in a sustainable manner. Article 4 of the Paris
Agreement says,
In order to achieve the long-term temperature goal set out in Article 2, Parties aim to reach
global peaking of greenhouse gas emissions as soon as possible,... to undertake rapid
reductions thereafter in accordance with best available science, so as to achieve a balance
between anthropogenic emissions by sources and removals by sinks of greenhouse gases in
the second half of this century, ...
36. Despite 'best efforts' and 'good faith' in the development and implementation of NDCs, the
projections of the IPCC ARG Report indicate the implemented policies result in projected
emissions that lead to a warming to 3.2°C, with a range of 2.2•c to 3.s•c (medium confidence)
by 2100. This is clearly not consistent with the spirit of Article 2 and Article 4 of the Paris
Agreement. We submit this adds urgency to the development of more ambitious NDCs and
that their implementation embodies the spirit of Article 2 and Article 4. This is consistent with
the application of the duty of due diligence.
24 Article 2
9
Duty of Due Diligence
37. In accordance with its obligations not to cause injury to other States, and the principle of
prevention of significant harm to the environment, a State is obliged to exert its best possible
efforts to avert the risk of significant transboundary harm. It is the failure of a State to comply
with its duty of due diligence, which constitutes the breach of its international obligations.
38. In the Advisory Opinion of the Seabed Disputes Chamber of the International Tribunal of the
Law of the Sea (ITLOS) of 1 February 201125
, the Chamber, in its Advisory Opinion, also pointed
out that,
The content of "due diligence" obligations may not easily be described in precise terms. Among
the factors that make such a description difficult is the fact that "due diligence" is a variable
concept. It may change over time as measures considered sufficiently diligent at a certain
moment may become not diligent enough in light, for instance, of new scientific or
technological knowledge . . . . The standard of due diligence has to be more severe for the riskier
activities.
39. It follows that the consideration of due diligence obligations is considered alongside the action
that is appropriate and proportional to the degree of risk of transboundary harm in the
particular case.
Principle of prevention of significant harm to the environment
40. The basic duty on States is not to act in a manner that injures the rights of other States, and
this has evolved further to preclude damage to areas beyond the jurisdiction of other States,
including the environment. This is supported in UNCLOS Article 194(2) that says,
States shall take all measures necessary to ensure that activities under their jurisdiction or
control are so conducted as not to cause damage by pollution to other States and their
environment, and that pollution arising from incidents or activities under their jurisdiction or
control does not spread beyond the areas where they exercise sovereign rights in accordance
with this Convention.
41. The UN Committee on the Rights of the Child has made it clear that,
the collective nature of the causation of climate change does not absolve the State party of its
individual responsibility that may derive from the harm that the emissions originating within
its territory may cause to children, whatever their location.
25 Responsibilities and obligations of States with respect to Activities in the Area, Advisory Opinion, 1 February
2011, ITLOS Reports 2011, p.10, emphasis added.
10
42. In 2001, the International Law Commission adopted its Draft Articles on Prevention of
Transboundary Harm from Hazardous Activities. The Draft Articles go on to define "risk of
causing significant transboundary harm" as including,
risks taking the form of a high probability of causing significant transboundary harm and a low
probability of causing disastrous transboundary harm.
43. The International Law Commission has taken the view that the term "significant" is something
more than "detectable" but need not be at the level of "serious" or "substantial"26
•
44. As regards the impact of climate change and global warming on the PNA and the PNA-VDS,
this threshold is clearly achieved: by satisfying the high probability of causing significant
transboundary harm, and also the (lower) probability of causing even disastrous
transboundary harm.
45. Article 9(2) of the Draft Articles says that if the assessment of risk indicates a risk of causing
significant transboundary harm,
The States concerned shall seek solutions based on an equitable balance of interests ...
46. In the case of the PNA and PNA-VDS, consideration of measures to counter the deleterious
effects of climate change need to commence as an imperative. Pathways for negotiating
equitable outcomes and the possible mechanisms to do so have been put forward in terms of
the PNA and the PNA-VDS27
.
PART D
IX. LEGAL CONSEQUENCES
47. A similar question posed to ITLOS is limited in scope to UNCLOS28
, in relation to the legal
obligations with respect to climate change under UN CLOS. The court, in these proceedings, is
able to cast a wider view, in line with the prescribed international law instruments.
48. The PNAO, which provides support to Parties to the Nauru Agreement that are themselves
comprised of small island developing States, which, , are injured specially affected by, and
particularly vulnerable to the adverse effects of climate change due to their geographical
circumstances and level of development, has a specific interest in these proceedings with
respect to the impacts of climate change on the PNA-VDS.
26 Commentary to Article 2. paragraph (4).
27 See footnote 15.
28 Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and
International Law (Request for Advisory Opinion submitted to the International Tribunal for the Law of the
Seal.
11
49. The causality between anthropogenic greenhouse gas emissions and climate change is clearly
established, and is undisputed by governments, as are the impacts on the environment,
including the marine environment. Significant harm has already been caused and will continue
into the future as a result of previous and continuing actions.
50. Reference has been made above to the UNFCCC and the Paris Agreement. The measures
adopted under this process, even if fully implemented, have not however been sufficient to
prevent significant harm to the climate system and other parts of the environment. The
General Assembly has thus posed the present question to the Court.
51. Draft Articles on Prevention of Transboundary Harm from Hazardous Activities provide for the
determination of acceptable solutions regarding measures to be adopted in order to prevent
significant transboundary harm or at any event to minimize the risk thereof.
Cause harm to the value of the PNA-VDS
52. Failures by States to ensure the protection of the climate system and other parts of the
environment from anthropogenic emissions of greenhouse gases, and for present and future
generations, undermines the PNA-VDS, in terms of the rights-based management system it
has built, builds on the collective application of sovereign rights to the EEZs. Ocean
acidification and Ocean warming, among other adverse impacts of such emissions, directly
impact the distribution, movement and health of fish stocks managed by the PNA and harm
the ability of the PNA to fully implement and benefit from the PNA-VDS.
53. The PNA have successfully developed a fisheries management system that is successful in
managing the tuna fisheries in their collective EEZs in a sustainable manner, but also used the
PNA-VDS to attract economic development.
54. The discussion on the relationship under international law between climate change-related
sea-level rise and maritime baselines and the outer limits of maritime zones, including for
EEZs, is currently progressing through a Study Group constituted by the International Law
Commission. In their observations, the Study Group noted the principle of stability of and
respect for existing boundaries. The same principle of stability of and respect for existing
boundaries would apply to maritime boundaries, which share the same function of
demarcating the extent of the sovereignty and the sovereign rights of a State.
55. In relation to sea-level rise and maritime boundaries, their main preliminary observation is the
importance accorded to ensuring continuity of pre-existing boundaries in the interests of
stability and preventing conflict.
12
56. The International Law Association has also considered the issue and adopted proposals that
"baselines and limits should not be required to be readjusted should sea level change affect
the geographic reality of the coastline"29
.
57. The PNAO, therefore, strongly urges the Court to affirm that the maritime zones of Parties to
the Nauru Agreement, as established and notified to the Secretary-General of the United
Nations in accordance with 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. This would be in line with the work of the
International Law Commission and as considered by the International Law Association in 2018,
"on the grounds of legal certainty and stability, provided that the baselines and the outer limits
of maritime zones of a coastal or an archipe/agic State have been properly determined in
accordance with the 1982 Law of the Sea Convention, these baselines and limits should not be
required to be recalculated should sea level change affect the geographical reality of the
coastline3°" and in line with PNA Leaders' decision to pursue legal recognition of the defined
baselines established under the United Nations Convention on the Law of the Sea to remain
in perpetuity, irrespective of the impacts of sea level rise31 and the 2021 Pacific Islands Forum
Leaders Declaration on Preserving Maritime Zones in the Face of Climate Change-related SeaLevel
Rise.
Displacement of tuna from PNA EEZs
58. The PNA control a large portion of the Western and Central Pacific Ocean tuna fishery through
their collective EEZs and have put in place measures that are largely responsible for the healthy
status of the tropical tuna stocks in the Western and Central Pacific Ocean. Changes to ocean
conditions, from warming and acidification of the ocean, may cause the displacement of tuna
stocks from waters in which they have traditionally been located.
59. The information provided in this statement indicates the level of impact the displacement of
tuna from PNA EEZs would have, in terms of revenue, but also economic development.
60. This raises the issue of the benefit or loss that would accrue to the international community
with the displacement of tuna from PNA EEZs, that was once under the prescriptive and
29 See the Draft Report of the ILA Committee on International Law and Sea Level Rise (2018), Sydney Conference,
p. 19, available at http://www.ilahq.org/images/lLA/DraftReports/DraftReport_SeaLevelRise.pdf. The committee
recommended that the ILA adopt a resolution containing two "de lege ferenda" proposals: (1) "proposing that
States should accept that, once the baselines and the outer limits of the maritime zones of a coastal or an
archipelagic State have been properly determined in accordance with the detailed requirements of the 1982 Law
of the Sea Convention, these baselines and limits should not be required to be recalculated should sea level
change affect the geographical reality of the coastline"; and (2) proposing "that, on the grounds of legal certainty
and stability, the impacts of sea level rise on maritime boundaries, whether contemplated or not by the parties
at the time of the negotiation of the maritime boundary, should not be regarded as a fundamental change of
circumstances."
30 Resolution 5/2018, 78th Conference of the International Law Association, Committee on International Law
and Sea Level Rise,
31 See footnote 17.
13
enforcement competence of the coastal States, and the control of which will, in future, be
fragmented into the multiplicity of flag States with significant differences in relation to the
conservation and management of marine living resources.
61. In a scenario where a lower proportion of tuna resources is under the jurisdiction of the PNAVDS,
the sustainability of tuna catches could be at greater risk because the monitoring, control
and surveillance required to combat illegal, unreported and unregulated fishing, and impose
penalties for non-compliance, are more difficult in high-seas areas32
•
62. This concern of fragmentation and the governance gap in the high seas are reasons why States
have seen value in the inclusion of area-based management tools as a main part of the recently
adopted Agreement under the United Nations Convention on the Law of the Sea on the
Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National
Jurisdiction. The use of closed areas in the high seas mitigates the effect of displacement of
tunas from PNA EEZs and for the protection of biodiversity from rising ocean temperature
effects and ocean acidification effects on fisheries. ITLOS has thus characterised the
management of fish stocks, as an integral element in the protection and preservation of the
marine environment33
•
63. Consideration of measures to counter the deleterious effects of climate change need to
commence as an imperative. The PNAO, therefore, seeks the affirmation, by the Court, that
the threshold for transboundary harm, under the Draft Articles on Prevention of
Transboundary Harm from Hazardous Activities, is clearly achieved for the tuna fisheries in the
EEZs of the PNA: by satisfying the high probability of causing significant transboundary harm,
and also the (lower) probability of causing even disastrous transboundary harm. This will
provide a definitive statement on the risk of causing significant transboundary harm and
provide an emphasis for the consideration of equitable measures that can be put in place in
order to prevent significant transboundary harm or, at any event, to minimize the risk thereof.
X. CONCLUDING REMARKS
64. In closing, the General Assembly would benefit from an advisory opinion, by the Court, on the
legal obligations of States with respect to the issue of climate change, and to interpret the
obligations in the UNFCCC and the Paris Agreement.
65. The advisory opinion will provide an authoritative determination of the validity of the science
confirming the need to reduce GHG emissions to stay below the Paris Agreement temperature
32 Towards the Quantification of Illegal, Unreported and Unregulated (IUU) Fishing in the Pacific Islands Region
(MRAG Asia Pacific, 2016)
33 Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August
35, 1999, ITLOS Reports 1999, 280, at 295, para. 70. See also M/V "Virginia G" (Panama/Guinea-Bissau),
Judgment, ITLOS Reports 2014, and Request for Advisory Opinion submitted by the Sub-Regional Fisheries
Commission, Advisory Opinion, 2 April 2015, ITLOS Reports 2015, para.120.
14
objective in the timeframe prescribed and foster increased ambition to meet the objectives of
the Paris Agreement.
66. Lastly, by affirming the preservation of baselines and the outer limits of maritime zones in the
face of climate change-related sea-level rise and affirming that the threshold for
transboundary harm has been achieved, the Advisory Opinion will provide an emphasis for the
negotiation of equitable counter measures to abate the deleterious effects of climate change.
15
XI. FIGURES AND TABLES
-
.....
0
0
Catch and stock status by tuna RFMO
3,000-r----------------------;:::==========:::::;-i
□ Not Overfished, no Overfishing
□ Overfished
2,500
[I Overfishing occurring
■ Overfished and Overfishing occurring
■ Unknown/Uncertain
2,000
:::::..1,soo
.c
Albacore-s Pacinc
Albacore-N.Pacific
Albacore- S Pacinc
Albacore-N Pacific
AJDacore-lndian
SkipJack-W AllanUc
Albacore-S AUantic
Albaco,e-N Allanlic
Al bacora-M e dile rr an& an
ra
(.)
1,000
500
0
81goyo
IATTC
(Easlern Pacil\c Ocean)
ALB SP ALB HP BfT
SK.J YFT
e)
WCPFC IOTC
(Weslorn and Central Pacific Ocean) (Indian Ocean►
Probabitily of beinCJ in each Kobe plot quadrant by species
ALB SP ALB HP BET
SKJ YFT
0
ALB BfT
,-,
Sl<J l'FT
e
ICCAT
(Atlantic Ocean ond edjecant se11s)
ALB SA ..,l.8UAAl.fJJi(0 8ET
SKJ WA SKJ EA YFT
Figure 1: The level of catch and sustainability of WCPO tuna fisheries compared to other RFMOs.
300
"' 250
"'
"' 200
150
E 100
:J
z
50
Data Source:
PNA FIMS
PNA Purse Seine Fleet Development 2010-2023
2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023
Year
Foreign Flag ■ Pacific Islands Flag ■ PNA Flag
Figure 2: The development of the PNA purse seine fleet over time capitalising on the PNA-VDS.
16
Limiting warming to 1.5°C and 2°C involves rapid, deep and
in most cases immediate greenhouse gas emission reductions
Net zero CO2 and net zero GHG emissions can be achieved through strong reductions across all sectors
a) Net global greenhouse
gas (GHG) emissions
I d I. .
I 􀀙 ........ ·􀀚 ,. .. ,, ,. ...... , ••J"'"
,.
[ 2120¾19 heirg11.hisesri-ot(hlsu t1w 2e0re1 0
Imp emente po 1c1es 􀀩 ,>0•1<:or:nM1l,0dto "'''"'"'􀀪 "' l ....,.
0 ,,
I l ,,u1gt1 of ;J••r... t<!I )-'):''C r,- t'!l11111 11-,.(i ,􀀼,,,,.􀀽
atlonally Determined
Contrlbut.lons (NDCs)
range In 2030 Kc,
􀂽 Implemented policies
j
FJ,r)
(median, with percentiles 25-75% and 5-95%)
Limit warming to 2° c (>67%)
Limit warming to 1.5°( (>50%)
with no or limited overshoot
Past emissions (2000-2015)
I Model range for 2015 emissions
Past GHG emissions and uncertainty for
2015 and 2019 (dot indicates the median)
s:l b) Net global CO2 emissions
e) Greenhouse gas emissions by
sector at the time of'net zero
CO2, compared to 2019
JGG•: 1()2 J
c) Global methane (CH4) emissions
, ,,
60
-JO
Illustrative Miti9atiu11
Paihways (IMPs)
,--
WthOt,!jsS<.> tmo a!:' cdhiffieevre r nt IH?t-zer() CQl
􀀛 ,1':J
..,....--
J::---:-::::---􀀜==-.:....;;;....;;.:..;..;:;.;.=-=.l
Non-CO, emissions
Transport, industry and buildings
􀂾 Energy supply (including electricity)
!E ;1_􀁘·} ,i)
- 1' ft'--O- )r)GI! 7 :60
2°c
1.s•c
d) Net zero CO2 will be reached
before net zero GHG emissions
ICO,
YeJr of net zero emissions
Figure 3. Figure SPM.5 from the IPCC AR6 Report.
􀂿 Land-use change and forestry
I CO2
GHG
GHG
17
Table 1. Table 1 of the Pathways to sustaining tuna-dependent Pacific Island economies during climate change paper indicating the projected
impacts tuna catches in Pacific purse seine fisheries from climate change.
'bllle 1 I AY8rllgt projectad change1 In purM-Mlne catch from the EEZ1 of tuna-depandtnt Pacific SIDS and hlp-tUI Bl'HI
ANII AVlllllp catch (I) RCPl.52050 RCP4.52050
Catch (I) Ch1np(t) Change(%) Catch (I) Chanae (I) Chanp(%)
EEZs of Pacific SIDS
Cool: Islands 11,080 10,640 -440 -4.0 12.065 +985 +8.9
FSM 178,587 155,407 -23,180 -13.0 173,773 -4,815 -2.7
Kiribati 396,048 363,520 -32.528 -8 2 423,251 +27,202 +6 9
Gilberl Islands' (260,073) (225,177) (-34,896) (-13.4) (278,023) (+17,950) (+6.9)
Phoenix Islands• (94,696) (92,140) (-2,557) (-2 7) (101,132) (+6,435) (♦6.8)
Line Islands" (41,279) (46,203) (+4,924) (+11.9) (44,096) (♦2,817) (+6.8) Marshall Islands 37,003 36,728 -275 -0.7 37,778 +775 +2.1
Nauru 110,794 86,886 -23,908 -21 6 117.059 +6,266 +5.7
Palau 2,655 2,646 -9 -0.3 2,738 +82 +3.1
Papua New Guinea 461,032 308,404 -152,628 -33.1 389,654 -71,378 -15 5
Solomon Islands 116,877 86,399 -30.477 -26.1 106,740 -10,137 -8.7
Tokelau 21,392 17,954 -3.438 -161 22.610 +1,218 ♦5 7
Tuvalu 73.080 55.992 -17.088 -23.4 75,589 +2,509 +3.4
Total EEZs 1,408,548 l.124,577 -283,971 -20.2 1,361,257 -47,291 -3.4
High-seas areas
11 15,330 11,396 -3.934 -25 7 13,541 -1,790 -11 7
12 23.083 16.413 -6,670 -28.9 20,738 -2,345 -10,2
13 47 60 +13 ♦278 61 +14 +29 8
14 21,443 21,773 +330 ♦1 5 22,727 +1,284 +6 0
IS 23.231 28.021 +4.790 +20.6 26,194 ♦2,963 ♦12.8
16 16,211 16,868 +657 +4.1 17,800 +1.589 +9.8
17 16.7 18 +13 ♦9 0 17 + 0 2 +13
18 2 2 3 +0.8 ♦15.5 3 +0.4 +20.2
19 33.2 41 +7.8 +24 7 36 +3 +8.9
H4 20,893 17,796 -3.097 -14 8 23,308 +2,415 ♦11.6
HS 46,517 49,502 +2,985 +6.4 48,360 +1.842 +4.0
EPO-N 84.175 100,443 +16.268 +19 3 98,130 +13,955 +16 6
EPO-C 457,664 583,082 +125.418 +27.4 541,194 ♦83,530 +18 3
EPO•S 3,293 4.339 +l.046 +31.8 3,747 +454 +13 8
Total high s.,as 711,939 849.7S5 +137,816 +19.4 815,856 +103.917 +14 6
'kn•,ea, (2009-2018) ncug,c pur,􀉨 Sle'f!'le !UNI c.,4din it1t0fl"'ln {IJ !torn the [lb ')I lfl'l l'K1I.C. SlOS and hogh-k411!, .-CH l.lhet 1'-'(h ;,,n1g1: Pf<>t«le-d 􀉩t'i to lt\c:\e Ul<hu by 2050 111 !<1􀉪
.Mf􀉫tt􀉬 lfY"fft\1,u,dN l!wl<:P85a,,d ltCP 45􀉭 􀉮,M ,􀉯􀉰uf:¥)1-nl􀉱y ,., 6andSup;){Nnrf'l.tf)'l􀉲 11-14 lo,,􀉳 ol p!Vf«􀉴 chl,,g,n,nult1') 'Thcttnc- nz Mff"-Ot
IC•h.h.wt1i<h􀉵􀉶1rtqr.t!Nto:,,ocb:-<'lt,eti>t.tlhw IICir.twli fSM fcdoe-t.tlf'dSta1nolMicrone-s1a. w,e 􀉷•rvr􀉸 I for loulMJn\ 􀉹<kfm,tioM ol .tUh;gtl•l-d\.Nus.
Table 2. Table 2 of the Pathways to sustaining tuna-dependent Pacific Island economies during climate change paper indicating the projected
impacts to fisheries revenue in Pacific purse seine fisheries from climate change.
Table 21 Projected changes In tuna-fishing access fees and government revenue for the ten tuna-dependent Pacific SIDS
Pacific SIDS Average2 015-2018 Change by2 050 (RCP 8.5) Change by2 050 (RCP4 .5)
Government Access fees Access fees Purse-seine Access Govemment Purse-seine Access fees Government
revenue (million (million as%of tuna catch fees revenue(%) tuna catch (milllon revenue(%)
US$) US$) government (%)• (million (%)• US$)
revenue US$)
Cook Islands 126.1 13.5 10.6 -4 0 -0.S -0.4 +8 9 +12 +1.0
FSM 150.6 68.4 47.6 -13 0 -8.9 -5.9 - 2 7 -18 -12
Kiribati 181.7 128.3 70.6 -8.2 -10.5 -5.8 +6.9 +8.9 +4 9 Marshall Islands 66 1 31.0 47.8 -0.7 -0.2 -0,3 +2.l +0.7 +1.0
Nauru 98.6 29.5 31.1 -216 -6.4 -6.5 +5.7 +1.7 +1.7 Palau 75,2 7.1 9.4 -0 3 -0.02 -0.03 +3.1 +0.2 +0.3
PNG 3,360.8 134.3 4.0 -33.1 -44 4 -1,3 -155 -20.8 -0 6
Solomon Islands 429 0 41.3 9.6 -26 1 -108 -2.5 -8.7 -36 -0.8
Tokelau 16.0 13.4 84.2 -16.1 -2.1 -13.4 +5.7 +0.8 +4 8
Tuvalu 47.4 25.6 53.9 -23.4 -6.0 -12.6 +3.4 +o.9 +1.9
Total 492.4 -89.9 -120
Average govemmenl re􀉺enue (excludinggr,mls), \una-fishing acc􀉻s fees and the pt!rCt!llldgt! of government rt'􀉼enue d<!ro\'t!J from access lees lor l<!n luna•dependenl Pacific SIDS between 2015 anc.J 2018,
together with estimated changes in po1se-seir'H! tuna catch, .1cce5,s lell!;s and gov<!rnment revenuce, by 2050 under 1he RCP 8 5 Jnd RCP '1 S emissions scen;mos See Supplementary fables 15 and 16 for
ranBes ol estlrn.1tcd percenlll.(le chao1ge.s in access fl!'I!, ,md government revenue by 2050 and c.Jetails ol lhe cakulaltons su1M1..oriled here.. PNG. Papua New Guine.1 •Proieded change in av􀉽age total
purse-seioe catch due lo dimate:·dri\t'Cfl rcdl!.lribulion of lolJ\ tuna biomas! (Supplementary Tabtes 17 aud 18)
18
Dr. Sangaalofa Clark
Chief Executive Officer
Email: [email protected]
19