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CLIMATE CHANGE AND MARINE ENVIRONMENTAL PROTECTION: A POTENTIAL LEGAL DISPUTE CONCERNING THE UNITED NATIONS LAW OF THE

SEA CONVENTION

Emil Angelo C. Martinez

Bachelor of Arts in Political Science, University of the Philippines-Visayas.

I.

Introduction

The complexity of an issue often creates a broad spectrum of inquiry which could result to a greater range of problems, making the issue harder to address and to solve. These problems could arise out of complicated matters such as misunderstandings, multifactoriality of the problem and often times deep-seated interests that hinder objective action towards a viable and effective solution. In international law, some issues are far more complicated due to their contemporary character, or maybe such issues despite existing for a long time have been taken for granted or left out as irrelevant concern. One of these issues is climate change. What makes climate change significant a subject of concern is that it is not only a legal matter under international environmental law but also it is a raw aspect of discourse under international maritime laws, in particular the United Nations Convention on the Law of the Sea (UNCLOS). The intersection of different areas of international law (or public international law) vis-a-vis climate change makes this issue a challenge in the discourse of international law as a whole. In this paper, the primary task that should be undertaken shall be to conclude that there is potentiality of international disputes arising from the question of law under UNCLOS, specifically under Part XII vis-a-vis climate change. This paper shall also offer resolutions to potential disputes. II. Climate Change as a Precondition to Dispute It is important to first establish requirements or preconditions that could be grounds for a potential dispute. In this section, the discussion shall focus on how climate change and its impacts and effects on states become a necessary basis for a dispute which arises from a question of law. A. Impacts and Effects of Climate Change to the Marine Environment There seems to be the necessity of first laying out the impacts and effects of climate change on states based on scientific evidence in order to easily identify the source of dispute and to objectively adjudge the cause. These scientific evidences shall make skepticisms about climate change inapposite and that it will not prejudice the veracity of claims of states.

The Intergovernmental Panel on Climate Change (IPCC) on its 2007 Synthesis Report identifies several effects of climate changes showing that natural systems are affected by regional climate changes, specifically increases in temperature based on observational evidence from continents and most oceans (IPCC 2007). Linear warming trend between 1965 and 2005 with 0.13 C per decade was almost twice in the years between 1906 and 2005 (Di Leva and Morita 2008). Presently, sea levels are rising globally at around 2 millimeters per year and the rate of rise has been accelerating, and by 2099 sea level rises by 0.18-0.59 meters based on the IPCC projection (Di Leva and Morita 2008).

There are cases where some states have been affected by rising sea levels. Tuvalu, for example, prepares its entire population for emigration as homes and
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infrastructures become inhabitable and unusable due to rising sea levels (Tol and Verheyeh 2004). Some countries are in potential risks, particularly low-lying areas which are vulnerable to small changes in the sea level wherein one-meter increase in the sea level could cause seventy-five percent loss of land mass like Vanuatu and eighty percent of the Majuro atoll in the Marshall Islands (Di Leva and Morita 2008).

Particular developed areas will also be affected by sea-level rise, constituting many major cities containing one-fifth of the worlds population where one-meter rise would destroy a large part of Bangladesh and inundate its capital Dhaka by two-meter rise along with Lagos and Shanghai, largest cities of Nigeria and China, and twenty percent of Egypts populated area and farmland (Zaelke and Cameron 1990).

There are in particular ocean-related impacts of climate change identified, including global average sea level rise, sea-ice cover reduction, elevation of average sea surface temperatures, increased levels of coastal erosion and adverse impacts on marine fish, and impacts on aquaculture (Doelle 2005). Based on new substantial evidence, changes in freshwater and marine biological systems can be associated with rising water temperatures, resulting to some shifts in ranges and changes in algal, plankton and fish abundance, shifts in ranges and migration periods of fish in rivers and bleaching and ultimately death of corals (IPCC 2002 & 2007). Also, ecosystem disturbances caused by climate change increase species loss rates, create opportunities for the establishment of new species and extinction of many vulnerable species in islands, peninsulas and coastal areas (IPCC 2002). Changing frequencies and intensity of precipitation, pH, water temperature, wind, dissolved CO 2 and salinity brought about by climate changes can affect water quality in estuarine and marine waters, influencing the increase of marine-disease organisms like Dermo disease and multinucleated spore unknown (MSX) disease in oysters and algal species associated with toxic blooms, affecting coral reefs and sea grasses, specifically in the Caribbean and temperate oceans (IPCC 2002). Although the drivers of climate change are both natural and anthropogenic, the observed widespread warming of the atmosphere and ocean support the conclusion that global climate change of the past fifty years cannot be explained without external forcing and that it is not due to known natural causes because during this period, the sum of solar and volcanic forcings would likely have produced cooling, not warming (IPCC 2007). Now that it has been clearly established that climate change caused by anthropogenic activities has harmful affects on the marine environment of states, the task shall be to identify the international law under UNCLOS relating to marine environment degradation and climate change which shall be a ground for potential dispute. B. Marine Environment, Climate Change and the UNCLOS: Legal Frameworks and Interpretations The United Nations Convention on the Law of the Sea clearly ascertains that a legal order is important for the protection and preservation of the marine environment. Article 194 provides that states () shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means (). Two very important questions can be raised in this
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regard. Can climate change be considered a form of pollution? If so, can states be found in violation of this UNCLOS provision regarding their failure to prevent, reduce and control such pollution, thus, making a likelihood of potential dispute? Article 1 of UNCLOS defines pollution of the marine environment as, () the introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, () hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of the quality of sea water and reduction of amenities (). The above provision, according to some authors, creates an issue of interpretation. Accordingly, the traditional interpretation of the language of the UNCLOS including the definition of pollution would focus on what the State Parties contemplated during the negotiation, ergo, this interpretive approach would exclude climate change from the definition, and that ocean temperature increases resulting from greenhouse gas emissions do not fall under the definition of energy (Doelle 2005). This approach, according to Meinhard Doelle, is inappropriate because the interpretation would be restrictive to the intention of the Parties at that time but there is no indication that there was intention from the Parties to limit the definition to specific threats identified at that time, and that the language defining pollution aims to capture a full range of possible threats to the marine environment (2005). However, using the logico-grammatical interpretation would render legal instrument interpretations both restrictive and extensive without one excluding the other (Kelsen 1966).

For example by interpreting Article 196 in its clear language, it can be argued that pollution arising from the use of technologies would not limitedly refer to pollution caused by the technologies existing at that time. Otherwise, such interpretation would make UNCLOS a contract, frozen in the time it was negotiated, hence, using this approach to general treaty interpretation would relegate many international treaties to irrelevance soon after they are negotiated, and that one should understand that treaties should be interpreted in light of changing circumstances (Doelle 2005). The 1969 Vienna Convention on the Law of Treaties, Article 31, Paragraph 3(c) provides that the contextual interpretation of treaties shall take into account any relevant rules of international law applicable in the relations between states. This provision indicates that treaty interpretation based on intentions or perceived intentions of the Parties may require regard not only to the international law at that time when the treaty was concluded but also to contemporary international law, which is consistent to the inter-temporal principle (Aust 2005). This presupposes that international law has its softness to accommodate the growing complexity of the contemporary international legal order, stretching its reach beyond restrictive frontiers of laws negotiated at some point in time (DAspremont 2008). However, the potentiality of impacts to marine ecosystems due to temperature changes was contemplated by the negotiators at that time, ergo, human-induced greenhouse gases resulting to ocean temperature rise would fall under the definition of marine pollution

under UNCLOS because temperature rise can be referred under energy definition in Article 1 and that pollution can be interpreted based on its effects (Doelle 2005).

Article 194, Paragraph 2 provides that states must take measures ensuring that activities inside their jurisdiction or control do not cause damage by pollution to any other states and their environment, and that pollution arising from activities and incidents under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights (). Under this provision, it can be argued that greenhouse gas emissions due to anthropogenic causes fall under the definition of pollution since these gases can spread beyond sovereign jurisdictions. By using the inter-temporal principle and effect-based approach, this provision can be interpreted in a way that it accommodates effects of climate change within the ambit of pollution definition. This provision implicitly prohibits unlimited greenhouse gas emissions (Tol and Verheyen 2004).

Therefore, in general climate change and its effects vis--vis marine environment are legal issues contained in UNCLOS based on interpretations required by legal instruments and general principles of law such as the Vienna Convention and the inter-temporal rule. II.Violation, State Responsibility and Liability: Legal Dispute Relating to Interpretation and Enforcement According to the IPCC, settlements and societies generally those in coastal and river flood plains are the most vulnerable to impacts of climate change specifically due to sea level rise, projecting that dense populations in lowlying megadeltas and small islands in Asia and Africa will be the most affected (IPCC 2007). Temperature rise is projected to impact ecosystems in coastal regions, causing negative effects to marine environment like coral bleaching, saltwater intrusion into freshwater aquifers, coastal erosion affecting coastal biodiversity and land mass of island nations like Tonga and Samoa among others (IPCC 2002). This is an apparent issue with regards to the marine environment of coastal states including low-lying states and small island states since they are the most vulnerable to and most affected by climate change impacts. The claim under UNLCOS could reasonably be brought by these states on grounds that they have generally contributed little to the problem, as their GHG emissions are minimal and that the threat of climate change is immediate and serious, thus, it would be reasonable to assume that the claim would be brought against a State with high economic capacity to address the problem and high historical per capita contributions to GHG concentrations in the atmosphere above natural levels (Doelle 2005).

In order for disputes to be considered a legal dispute, it shall meet the following criteria in accordance to Article 36 (2) of the Statute of the ICJ, namely; (1) the interpretation of a treaty, (2) any question of international law, (3) the existence of any fact which, if established, would constitute a breach of international obligation and (4) the nature or extent of the reparation to be made for the breach of an international obligation (Aust 2005).
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How does international law, particularly UNCLOS, deal with legal issues involving degradation of marine environment and resources of coastal states including low-lying states and small island states? What rights of coastal states including low-lying states and small island states are involved? How should UNCLOS enforce its provisions relating to liability to states affected by anthropogenic sources of pollution? Whose violation will it be and who will be responsible? This section shall discuss problems and disagreements that are potential to become disputes between states, in particular Parties to UNCLOS, regarding interpretation and enforcement of provisions to address violated rights of states.

Part XII of UNCLOS provides several provisions regarding duties and obligations of states bound to it in protecting and preserving the marine environment. Articles 192 and 193 provide that states have the obligation to protect and preserve the marine environment and have the sovereign right to exploit their natural resources pursuant to their environmental policies. Subsequent provisions require states to take measures to prevent, reduce and control pollution and ensure activities under their jurisdiction to not cause damage by pollution to other states. State responsibility is triggered when a state fails to fulfill these responsibilities as provided for by Article 235 (Burns 2006). This provision is particular case in point that could lead to a disagreement. How could it be determined whether a state is responsible for violating certain provisions which oblige them to protect and preserve the environment?

In the case of international environmental damage, some treaties have attempted to set what constitutes damage, the way it is to be assessed, the kind of liability to apply and what remedy should be available in order to determine state responsibility (Aust 2005). UNCLOS offers provisions regarding assessment measures and remedies. But the lack of statutory provisions relating to constitution of damage and what kind of liability should be applied could lead to disagreement between states, particularly coastal states who want to establish claims against violators. Consider this theoretical case: State A argues that there is violation by State because its marine environment is affected by climate change causing marine environment and resource degradation. State A cites articles in Part XII to defend its claim. State A grounds its argument based on the fact that State B is a top GHG emitter, thus, it should be liable for damages caused by pollution. State B would argue that State As claim has no ground to qualify its responsibility under Part XII because it does not objectively provide what constitutes damage and how its emissions are directed against State A. State B would disagree on the claim of State A regarding reparation. It is therefore reasonable to assume that both the claimant and the defendant are Parties to UNCLOS, ergo, by principle of pacta tertiis nec nocent nec prosunt (Treaties are neither of benefit nor of detriment to third parties) claimants states could not raise claims to any non-Parties to UNCLOS (Kelsen 1966). Although Article 235 mentions about compensation and enforcement of existing international law relating to responsibility and liability for the assessment of and compensation for damage, it does not provide how damages should be attributed to a state in order for another to establish claims of violations.
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Eventually, this will lead to further disagreement regarding provisions that should be enforced to address the damages done. As a matter of fairness, UNCLOS cannot require a state to compensate damages done to another state without first establishing that the former is indeed responsible for the damages done to the latters marine environment. The reason behind why a state cannot easily attribute damages to another state on the grounds of its failure to protect and preserve the marine environment resulting from GHG emissions is that it has cumulative effects that make it difficult to prove that one or some states would have actually prevented certain damages (Tol and Verheyen 2004). Because Part XII, particularly Article 235 has inadequate provisions on how to establish state responsibility out of injuries from climate change, some resolutions should be offered to address this source of dispute. It is therefore necessary to establish standards for attribution of damages to states so as not to prejudice the claims of states affected, specifically coastal states including low-lying states and small island states.

Therefore, the legal dispute between the potential plaintiff and defendant states to be discussed in this paper shall constitute a disagreement regarding the interpretation of a specific provision of UNCLOS and the existence of a fact that if established would constitute a breach of an international law. II. Resolutions: Legal Principles, Processes and Instruments The use of existing international legal processes is an important tool for states to settle disputes. Affected states, particularly coastal and low-lying states can use judicial processes by a way of contentious actions submitted to competent tribunals to protect their territory, population and marine environment and resources from climate change impacts (Zaelke and Cameron 1990). UNCLOS already contains stipulations regarding dispute settlement, particularly Part XV. But before any claimant state could raise the issues regarding violations, the dispute regarding interpretation of Article 235 relating to state responsibility should be first resolved in order to attain fairness to both claimant and defendant states. The following discussion shall be the resolutions to the aforementioned dispute. Causation and Attribution Approaches Plaintiff states have great evidentiary burdens in terms of fact and law (Zaelke and Cameron 1990). Damage claims under international law must involve steps such as identification of the damaging activity attributable to a state, establishment of causal link between the activity and the damage, determining either a violation of international law or of due diligence and quantification of the damage and relating it back to the activity, in order to establish state responsibility (Tol and Verheyen 2004). Since the primary problem that should be taken with high regard is how to ascribe damages to a particular state, attribution and causality issues should then be resolved using the causation principle. A claimant state faces two burdens: how to establish causal links between climate change and alleged damages to marine resources, and the link between a Partys discrete greenhouse gas emissions and alleged damages (Burns 2006). In the case of transboundary air pollution, specific causation between a
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specific actor and a specific damage cannot be easily established (Hostettler 2008). For example, Maldives cannot ascribe marine environment degradation due to climate change within its territorial waters to a particular state, say, Australia since climate change has cumulative character.

In order to hold states responsible for climate change damage, it is necessary to identify a legally relevant behavior by a state such as allowing emissions of GHG during a certain time and failure to put in place regulatory mechanisms in arresting emissions over and above a certain threshold (Tol and Verheyen 2004). Since UNCLOS does not specify mechanism in determining damage attribution to a state, other legal instruments not incompatible to UNCLOS can be used as such. A state can request for an advisory opinion concerning provisions on the governing principles in international law affecting the states responsible for, and victims of, sea level rise and other consequences of global warming from the International Court of Justice (Zaelke and Cameron 1990).

Is the ICJ a competent court to adjudicate a dispute between interpretation and application of provisions regarding state responsibility and liability? Article 287 relating to choice of procedure includes ICJ as one of the means for the settlement of disputes concerning interpretation or application of UNCLOS provisions. However, in the absence of a declaration by one state party to the dispute, the arbitral tribunal procedure under Annex VII is deemed to be the procedures selected by a Party (Doelle 2005). Another way to resolve the attribution issue is to use Article 293 of UNCLOS which specifically opens the door to a progressive interpretation of UNCLOS obligations by bringing in other sources of international law not inconsistent with UNCLOS (Doelle 2005). The ICJ can use this provision as to ground its advisory opinion or court decision if the legal dispute is consented to be heard by a court or tribunal as provided in UNCLOS regarding state responsibility based on attribution mechanism.

What other international legal instruments and rules of international law should the ICJ use? The ICJ can cite Principle 2 of the Rio Declaration regarding state obligations in ensuring that no damage is done from their territory to other states, and does not differentiate between state and private conduct (Tol and Verheyen 2004). The ICJ can also use principles in the Trail Smelter Case regarded as international customary, where the Tribunal declared that () no state has the right to use or permit the use of territory in such a manner as to cause injury by fumes in or to the territory of another and that A State owes at all times the duty to protect other states against injurious acts by individuals from within its jurisdiction (Zaelke and Cameron 1990 and Tol and Verheyen 2004). The principles expressed both in Rio Declaration and the Trail Smelter Case establish that climate change damages can be attributed to a state once it has permitted or allowed GHG emissions from private entities or the failure to regulate such emissions since the most of emitting activities are subject to a licensing or permit procedure, be it in the energy or transport sector (Tol and Verheyen 2004).

The remaining burden for claimant states and competent tribunals is to link GHG emissions of states to impacts of climate change. This is now the issue of causation. There are two types of causation: general causation which refers to a causal link between an activity and the general outcome, and specific causation which refers to the causal link between a specific actor and a specific damage (Tol and Verheyen 2004 and Hostettler 2008). The first type of causation concerns the general proof that anthropogenic greenhouse gas emissions change the radiative forcing in the atmosphere, resulting to global warming and climate change impacts on ecosystems, among which is sea level rise which is proven to be detrimental to the marine environment (Tol and Verheyen 2004).

Since climate change, being a form of transboundary air pollution, is resulted by cumulative anthropogenic activities, specific causation cannot be established (Hostettler 2008). However, one approach possible for consideration is that liability should be apportioned according to the emissions of individual States from a designated date (Burns 2006). The standard in this regard is the allocation of GHG emissions rights based on factors such as per capita plus/minus depending on historical contribution, capacity, and national circumstances (Doelle 2005).

Market share liability is a reasonable approach to establish specific causation since it incorporates the principles of the distribution of responsibility such as per capita emissions, economic capacity to mitigate, historical contribution or combination of such factors (Doelle 2005). The basis for allocation or responsibility, according to Meinhard Doelle, can be found in the factors that guided the allocation of the first commitment period targets negotiated in the Kyoto Protocol (2005). This then offers claimant states quantitative grounds in linking climate change damages to GHG emissions of a specific state. For example, responsibility can be allocated to any state who does not comply with emission target cuts because of emission increase between 1990 and 2003, including Canada, New Zealand, Australia, Austria, Greece, Ireland, Portugal, Spain and Italy (Sunstein 2007). Although the targets provided in the Kyoto Protocol were pledge-based, it does offer clear principles of responsibility and it does not impose any binding obligations on states (Doelle 2005).

Some authors however argue that framework conventions like the Kyoto Protocol are by nature legally binding because it provides preconditions guaranteeing that states are bound by the guiding principles of the framework when interpreting and implementing rights and obligations under the protocol (Matz-Lck 2009). Assuming that the Kyoto Protocol is just a contract treaty, State Parties are bound to principles of obligations and responsibilities under the international national customary law of pact sunt servanda. Richard S.J. Tol and Roda Verheyen in their Energy Policy article State responsibility and compensation for climate change damages a legal and economic assessment apportioned responsibilities to states using cumulative emissions measured since 2000 (2004). Tol and Verheyens reason on choosing the year 2000 as
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starting point for emission measurement is that 2000 is the year in which governments can be expected to know about climate change and have had time to start emission abatement programs, referring to the first OECD (Organization for Economic Cooperation and Development) commitments in reducing emissions in 2000, since cumulative emissions in the OECD are in all cases compared to world cumulative emissions since 1800, the starting point of emissions data (2005). Results showed that if cumulative emissions are measured since 2000, OECD is responsible for 20-25% of climate change starting from 2025 onwards; measurements of cumulative emissions since 1800 would attribute 65% share to OECD (Tol and Verheyen 2004). This measurement is based on Kyoto commitments. The ICJ and other competent tribunals as provided in UNCLOS can use this quantitative allocation for their advisory opinions to resolve disputes relating to interpretation and enforcement of Article 235 in UNCLOS. Although advisory opinions are not binding to parties to the dispute, advisory opinions of these competent courts create a conclusion of law wherein courts apply laws to conclusions of facts (Oran 1991). However, this would aid potential plaintiff states to ground their claims against a potential defendant to the dispute. Tribunals and courts can use this approach to arrive binding decisions to the dispute regarding the interpretation of Article 235 if the potential disputants consented to the jurisdiction of these tribunals and courts through declarations of acceptance to hear and settle the disagreement in good faith and peaceful means in accordance to the procedures provided in Part XV (Aust 2005; Doelle 2005; Hafetz 2000; Sweeney, et.al. 1988). If courts and tribunals conclude that climate change and its impacts are attributable to states and that state actions can be linked to the cause of it, violations could be raised in this regard, particularly due to negligence. For example, a claimant state could hold that the defendant state acted out of negligence on the grounds that its actions are foreseeable to cause potential damages yet it failed to prevent or control the repercussions of its actions (Tol and Verheyen 2004). Also, courts and tribunals can establish the precautionary principle ascertained in the Rio Declaration as an application of state responsibility in the context of potential environmental harm (Aust 2005). Foreseeability and precautionary principle thus play resolutions to disputes regarding whether a state has violated a statutory provisions in UNCLOS, for example, in Part XII regarding the protection and preservation of the marine environment. III. Politically Motivated Claims: Using Dispute Settlement for Political Interest Judicial procedures in international law must clearly identify substantive laws in times where issues of politics and international law appear to overlap (Biehler 2008). Is this a concession that the application of international law should at best be free of any political stains? International tribunals do not take the political intentions and interest of states as relevant matters in applying international law, especially in cases of disputes between states that are often politically or emotionally charged (Aust 2005). After all, international law is objective in nature; international politics is just not. What particular motives are involved in disputes between states? Is the claim of a state a way to forward its political interest? What potential disputes regarding marine environmental degradation have possible political motivations?

The best example of this case is a potential dispute between Bangladesh and India. Bangladesh could claim that India, being a top GHG emitter, is violating its
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obligation under UNCLOS, since both are parties to the convention (Tol and Verheyen 2004). Bangladesh, a low-lying country is known globally as one of the most vulnerable countries to climate change, wherein particular sectors vulnerable to climate change include biophysical resources, livelihood, and production system, among others (Ahmed 2004). Bangladeshs contention on bringing a claim against India and not against any other top GHG emitting countries can be grounded based on the principles in Nauru case where a plaintiff is not required to challenge every possible defendant as long as the interests of a state not party to a dispute before the court will not be affected by the judgment and in Nicaragua case where the ICJ expressed as a general rule that it would decline to exercise the jurisdiction conferred upon it where the legal interest of a State not party to the proceedings would not only be affected by a decision, but would form the very subject-matter of the decision (Tol and Verheyen 2004). However, Bangladeshs claim can be politically motivated. Bangladesh and India had had border conflicts for the past 35 years ever since Bangladesh acquired its independence in the 1970s, creating political tensions between the two states up to this day (Priyangika 2001 and Martinez 2009). The effects of climate change on the marine environment of Bangladesh can surely affect its power play with India. At this point, the fear of losing balance of power due to environmental losses can drive Bangladesh to use its claims against India, given its marine resources as potential sources of economic and political power, among which is to be valued at $300 million in fisheries export sector alone (Kabir 2006 and Martinez 2009). IV. Conclusion The imminent perils of climate change to coastal states including low-lying states and small island states, particularly to their marine environment, raise an issue of state obligation and rights under the United Nations Convention on the Law of the Sea. Since climate change is a contemporary environmental issue, disputes could arise between states relating to marine environment degradation caused by climate change since developments in international law and existing international laws and instrument like the UNCLOS have yet to address legal questions relating to climate change issue. In this paper, it has been argued that climate change is indeed a legal subject matter ascribed in the UNCLOS. Although climate change per se is not mentioned in the UNCLOS, interpretive approaches are able interpret climate change in a contemporary context under UNCLOS. But due to the ambiguities of provisions relating to responsibilities and liabilities ascertained in UNCLOS, it has been argued that such lack of clarity can give rise to disputes relating to interpretation of particular provisions regarding the identification and allocation of responsibilities due to violations and damages. However, resolutions are made available to settle disputes in this regard. Using approaches such as causation and attribution, courts and tribunals can determine whether what state is responsible for the damages done to another state.

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