International Tribunal Set To Issue Climate Change Opinion On May 21

The International Tribunal for the Law of the Sea has announced they will deliver their advisory opinion on the obligations of countries to prevent climate change on May 21. The opinion, while limited in scope and non-binding, could force action by member states and provide an important preview for how the International Court of Justice may rule on its pending advisory opinion on the Obligations of States in respect of Climate Change.

ITLOS was created in 1982 through the United Nations Convention on the Law of the Sea. UNCLOS is an international treaty that codified existing customary international law relating to the world’s oceans. Notably, it establishes the multiple levels of international waters, the respective rights of passage through those territories, the rights and obligations of countries, and the access and rights to natural resources. The Convention went into effect in 1994.

Currently, 168 states and the European Union have signed the convention. The United States signed the agreement in 1994 but has yet to ratify it. Therefore, they are not a party to the Convention. Of the UN member states, only 28 are not parties, including Afghanistan, Colombia, Israel, Peru, Turkey, Venezuela, and the United Arab Emirates.

International treaties typically include a method to enforce the obligations of the signing states and to handle disputes. In some instances, they may refer to existing courts. UNCLOS established the ITLOS, based in Hamburg, Germany, to handle disputes relating to the interpretation or application of the Convention. Additionally, the Tribunal may give “an advisory opinion on a legal question if an international agreement related to the purposes of the Convention specifically provides for the submission to the Tribunal of a request for such an opinion.”

Since first meeting in 1996, the Tribunal has issued opinions in 29 cases and given two advisory opinions. The cases generally relate to maritime boundaries and actions taken against vessels.

In December 2022, the Commission of Small Island States on Climate Change and International Law submitted a request to the Tribunal for an advisory opinion on the obligations of States to protect the maritime environment.

COSIS was formed by a multilateral treaty in anticipation to the 2021 United Nations Climate Change Conference, commonly referred to as COP26, held in Glasglow, Scotland. Its stated mission is “To take collective action to protect and preserve the climate system, including the marine environment, through the promotion, progressive development, and implementation of rules and principles of international law concerning climate change.” While membership is open to the 39 members of the Alliance of Small Island States (AOSIS), only eight have joined.

COSIS co-chairs, Gaston Browne, the Prime Minister of Antigua and Barbuda, and Kausea Natano, then the Prime Minister of Tuvalu, signed the request for an advisory opinion. The remaining six countries of Niue, Palau, St. Lucia, Vanuatu, Saint Vincent and the Grenadines, Saint Kitts and Nevis, and the Bahamas joined.

The request posed a two-part question:

What are the specific obligations of State Parties to the United Nations Convention on the Law of the Sea (the "UNCLOS"), including under Part XJI:

(a) to prevent, reduce and control pollution of the marine environment in relation to the deleterious effects that result or are likely to result from climate change, including through ocean warm in g and sea level rise, and ocean acidification, which are caused by anthropogenic greenhouse gas emissions into the atmosphere?

(b) to protect and preserve the marine environment in relation to climate change impacts, including ocean warming and sea level rise, and ocean acidification?

Following the request, the Tribunal allowed parties of the Convention and Intergovernmental organizations to submit written statements. 30 countries, the European Union, and eight international organizations submitted statements. 14 statements were rejected by the Tribunal. The Tribunal held oral arguments from September 11 – 25, 2023.

In its written statement, COSIS argues that States have an obligation under UNCLOS to take action to prevent climate change. While the Convention does not specifically name climate change in the document, COSIS points to Article 194 obligation to take “measures to prevent, reduce and control pollution of the marine environment.” Under their argument, scientific data relating to greenhouse gas emissions and climate change create a duty adopt legislative and regulatory measures to reduce GHG emissions and limit global temperature rise to the standards set in the Paris Agreement.

COSIS also finds a general duty in the Convention under Article 192 in which “States have the obligation to protect and preserve the marine environment.” COSIS argues that language establishes a duty “to mitigate climate change, to implement resilience and adaptation measures, and to protect marine ecosystems that sequester carbon dioxide.”

If COSIS is successful, the advisory opinion would not directly force action by States, but would open them up to further litigation. It could also influence the pending International Court of Justice advisory opinion on the Obligations of States in respect of Climate Change. To avoid litigation, States may begin enacting stricter sustainability regulations relating to businesses and their climate-related activities.

ITLOS Judge Albert Hoffmann will read the advisory opinion at the main Tribunal courtroom in Hamburg, Germany on May 21, 2024 at noon (CEST). It may be viewed online as well. The written opinion will be posed on the ITLOS website following the hearing.