Law of the Sea Perspectives on Climate Change
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The argument that Kyoto sets a standard for giving effect to LOSC Part XII is even less useful against developing States, or against developed States that are not parties to Kyoto. Developing States parties to Kyoto have no obliga- tion to reduce GHG emissions, even if, like India and China, they are large emitters of CO2. They will still be in compliance with Kyoto even if their CO2 emissions have greatly increased since 1997. They would not be in breach of LOSC Articles 192 and 194 if Kyoto defines the content of those Articles. With regard to the US, which is not a party to Kyoto or LOSC, it might be argued that it is bound by customary law to apply internationally agreed stan- dards on CO2 reductions in order to give effect to their obligation to protect the marine environment and other States from pollution. But the obvious dif- ficulty is that developed State parties to Kyoto have different percentage reduc- tions targets, and in some cases they are permitted to increase emissions. Taking Kyoto as a standard of diligence for non-parties simply begs the ques- tion—what standard and for whom?
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Can we then bring a climate change case within the dispute settlement proce- dures of Part XV of the LOSC? There are several problems, but jurisdiction is the most significant. Compulsory jurisdiction under Part XV of the LOSC is residual, in the sense that it defers to other options the parties may have cho- sen. A multilateral or bilateral agreement which provides for unilateral resort to a procedure with a binding outcome will exclude Part XV (Art. 282). The parties to a dispute may also agree ad hoc on some other peaceful means of settlement (Art. 281), and Part XV will then apply only if no settlement is reached and the parties have not agreed to exclude recourse to Part XV. The Convention further provides (Art. 284) that one party to a dispute may invite the other to agree to conciliation instead of any other Part XV procedures. These Articles of the Convention have so far proved to be the main obstacles to jurisdiction under Part XV. They pose the obvious question of how LOSC dispute settlement interacts with the dispute settlement provisions of the UNFCCC and the Kyoto Protocol.
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The relationship between the LOSC and climate change is not clear-cut, despite its obvious importance. Nevertheless, it is doubtful whether viewing climate change through the law of the marine environment greatly alters the overall picture. At best it provides a vehicle for compulsory dispute settlement notably lacking in the UNFCCC regime. Realistically, while the LOSC may import any newly agreed standards for the control of GHGs, it is not a substitute for further agreement within the UNFCCC framework.