ID: 1682
Presenting Author: Sara Seck
Session: 596 - Climate Impact Assessments After the ICJ's Climate Change Opinion
Status: pending
This paper will explore the implications of the ICJ Climate Advisory Opinion for federalism contestations in Canada over IA of planned activities that risk harm to the marine environment.
The ICJ’s Climate Advisory Opinion confirms the ITLOS Climate Advisory Opinion, both holding that state obligations under the UN Convention on the Law of the Sea (UNCLOS) are distinct from those under the UNFCCC and Paris Agreement, yet equally relevant to climate change. Specifically, anthropogenic GHG emissions fall within the UNCLOS definition of pollution of the marine environment, and UNCLOS Article 194 imposes on States an obligation to take all measures necessary to “prevent, reduce and control pollution of the marine environment from any source”. This is consistent with the sovereign right of States to “exploit their natural resources pursuant to their environmental policies” under Article 193 as this right is subject to the duty of States to protect and preserve the marine environment. The ICJ further confirms that UNCLOS Article 206 requires States to conduct EIAs when there are “reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment” and this includes the impact of anthropogenic GHG emissions on the marine environment. This contribution will consider the implications of the ICJ opinion on EIA at the ocean-climate nexus for Canadian impact assessment law, with attention to ongoing federalism contestations over the federal IAA and provincial fossil fuel projects, and future consideration of marine carbon dioxide removal.
Professor Sara Seck is the Director of the Marine & Environmental Law Institute at Dalhousie University’s Schulich School of Law in Halifax, Nova Scotia.