Ecological catastrophy

ITLOS Issues Historic Advisory Opinion on Climate Change and International Law

On May 21, 2024, the International Tribunal for the Law of the Sea (ITLOS) published what has been deemed as an “historic” and “unprecedented” advisory opinion on climate change, international law, and on state obligations regarding climate change. Sought by the international organization called the Commission of Small Island States (COSIS), the historic nature of this opinion comes from the fact that this is the first time an international tribunal has issued an opinion clarifying the international law obligations on states binding them to protect the marine environment from the adverse effects of climate change.

The unanimous opinion of ITLOS was that greenhouse gas emissions make up pollution of the marine environment and that states are obligated to take “all necessary measures” to control pollution from those emissions. The ITLOS advisory opinion also discusses a number of areas of dispute regarding application of the United Nations Convention on the Law of the Sea (UNCLOS) as it pertains to climate change.

What is ITLOS, you may be asking? It is an international court based in Hamburg, Germany established under the UNCLOS. Its primary purpose is to litigate disputes that arise out of the interpretation and application of UNCLOS. Its jurisdiction extends over a wide array of maritime disputes, including protecting the marine environment. It also has discretionary authority to publish such advisory opinions in response to requests from international organizations.

The ITLOS advisory opinion comes in response to the efforts of COSIS and several nations — including Saint Lucia, Tuvalu, Antigua and Barbuda – which submitted multiple questions on climate change to ITLOS two years ago, specifically asking for clarification on government obligations to protect the marine environment from climate change. Specifically, clarification was sought as to two key questions: (1) do greenhouse gas emissions constitute a form of marine pollution under UNCLOS and what are the legal obligations of governments to “prevent, reduce, and control” that pollution; and (2) what are the governments’ obligations to protect and preserve the marine environment from climate change impacts.

ITLOS said that its opinion does not force nations to immediately cease the emission of greenhouse gases from the burning of fossil fuels. Instead, it listed a series of “stringent” legal obligations that nation governments must meet to “preserve, reduce, and control” emissions and to “protect and serve” oceans from climate change impacts.

The obligations advised under the ITLOS opinion are not limited to adopting laws and regulations for the purpose of reducing greenhouse emissions, but extend to taking steps to prevent emissions under their jurisdiction from causing damage to neighboring countries, to strengthen fragile ecosystems and endangered species, to work with neighboring governments and share ideas, working to control the spread of invasive and exotic species, and to rebuild damaged ecosystems.

Gaston Browne, prime minister of Antigua and Barbuda, hailed the ITLOS opinion as an “historic milestone in our journey to climate justice,” and said he cannot fathom what will happen to his country and other small island states if the world does not change course by more aggressively reducing greenhouse gas emissions.

ITLOS’ proceedings in generating the advisory opinion included the participation of over 40 governments and international organizations who either submitted written proposals or attended in-person presentations that took place at ITLOS’ headquarters in Germany this past September.

The tribunal’s advisory opinion is the first of three opinions on climate change pending before different international courts. Proceedings before the International Court of Justice, which serves as the highest United Nations judicial authority, and the Inter-American Court of Human Rights are both underway and will likely be influenced by the ITLOS advisory opinion.

It should be noted that the United States is not a party to UNCLOS and therefore did not participate in the proceedings for this first advisory opinion. But that’s not to say that the ITLOS opinion will not have any effect or legal application to non-party countries like the U.S. Advisory opinions can be relied upon by litigants in national courts, which issue legally binding decisions. In addition, there are currently 168 states that are parties to UNCLOS, and this opinion will certainly have direct implications to them.

In addition, the United States – the world’s biggest historical emitter of greenhouse emissions – is a participant in the advisory opinion expected to be issued by the International Court of Justice. One of the laws being considered by the International Court of Justice is the U.N. Convention on the Law of the Sea. As such, this recent advisory opinion from ITLOS will likely influence the outcome of the International Court of Justice’s advisory opinion.