A Landmark Advisory Opinion: ITLOS Strengthens Legal Framework for Climate Action

On May 21, 2024, the International Tribunal for the Law of the Sea (ITLOS) issued a groundbreaking Advisory Opinion on climate change, which marks a historic first – an international legal body directly addressing state obligations for mitigating climate change, a critical step forward in holding nations accountable for their actions.

The request made to ITLOS in December 2022 by the Commission of Small Island States on Climate Change and International Law seeks clarification on states’ obligations under UNCLOS regarding the prevention, reduction, and control of marine pollution, as well as the protection and preservation of the marine environment in relation to climate change impacts. This is the first time an advisory opinion has been sought on issues specifically related to sea-level rise and climate change more broadly.

The opinion dives deep into the application of the United Nations Convention on the Law of the Sea (UNCLOS) within the context of climate change. It clarifies the relationship between UNCLOS and existing climate regimes, while also pinpointing specific obligations of states regarding greenhouse gas (GHG) emissions. For the first time, the tribunal explicitly acknowledged that greenhouse gas emissions constitute marine pollution. This recognition has far-reaching implications for the legal framework surrounding climate change and the protection of marine ecosystems.

Significantly, ITLOS concluded that UNCLOS Article 194 binds state parties to take “all necessary measures” to control and reduce marine pollution caused by human-generated GHG emissions. This strengthens existing legal obligations and pushes for harmonization of policies across states. The tribunal further emphasized the “stringent” due diligence standard expected from states under UNCLOS Article 194(1).

The tribunal underscored the importance of international cooperation in addressing climate change and its impact on the marine environment and emphasized that States have obligations to prevent climate change-related pollution from affecting other states and areas beyond their national jurisdiction and collaborate in addressing climate change and provide assistance to developing countries, particularly vulnerable ones.

In addition, the tribunal’s opinion has significant implications for the realization of the right to a clean, healthy, and sustainable environment, and reinforces the legal framework for protecting this fundamental human right.

This landmark opinion has the potential to significantly impact international climate action by providing a clearer legal framework for holding states accountable and has the potential to have a significant impact on international law and climate change action. 

This development arrives amidst a surging wave of interest in climate change law within the legal community. The growing prevalence of climate change lawsuits is raising awareness and prompting legal minds to engage with the issue. As the scientific community emphasizes the urgency of addressing climate change, legal professionals are increasingly recognizing the associated risks. Bar associations, judges’ associations, and even law societies are becoming more involved in climate change issues, reflecting a broader recognition of its legal significance.

This confluence of factors, combined with the ITLOS decision, creates a fertile ground for further development of climate change law. The legal framework is solidifying, and the legal community is actively engaging. This could lead to a more robust legal response to the climate crisis in the years to come.

This is the first international judicial opinion on state obligations concerning climate change. It arrives at a critical juncture, where the international community faces significant hurdles in advancing climate legislation and negotiations. It could set a precedent for future legal decisions and inform the development of customary international law on climate change. The ITLOS opinion will likely be considered by other international courts and tribunals currently deliberating on similar issues, such as the Inter-American Court of Human Rights and the International Court of Justice.

The ITLOS opinion complements the Paris Agreement by providing a stronger legal foundation for holding states accountable for actions that harm the marine environment through greenhouse gas emissions. While the Paris Agreement sets the global goals, the ITLOS opinion helps enforce them within the framework of UNCLOS. This combination provides a more comprehensive approach to addressing climate change.

On the policy front, the opinion could bolster existing international climate commitments like the Paris Agreement by providing a clearer legal basis for action. By clarifying states’ obligations, the opinion could compel them to implement more stringent policies to reduce emissions and protect the marine environment. The opinion highlights the specific vulnerabilities of the ocean to climate change, potentially leading to increased focus on ocean-based climate solutions and adaptation strategies.

While the ITLOS opinion is a positive development, some challenges and uncertainties remain.  ITLOS opinions are not legally binding, so enforcement relies on states complying with their international legal obligations. The specific interpretation and application of the opinion by different states remains to be seen. Ultimately, strong political will is needed to translate the legal framework into concrete action to address climate change.

While not legally binding, the Advisory Opinion carries significant weight. It strengthens the applicability of UNCLOS to climate change, a pressing issue not explicitly addressed when the convention was drafted. The opinion outlines specific obligations for major emitters regarding reducing greenhouse gas emissions. However, it acknowledges the “common but differentiated responsibilities” principle, recognizing that each country’s economic and technological capabilities influence their ability to act. This leaves some room for interpretation in how these obligations translate into concrete actions. Major emitters might avoid legal challenges from climate-vulnerable states by demonstrating good faith efforts to reduce emissions. The broad scope for interpretation underscores the importance of international cooperation. The Advisory Opinion encourages collaboration between major emitters and vulnerable countries, potentially leading to joint efforts that address climate change more effectively.

The ITLOS Advisory Opinion on Climate Change is a pivotal moment, offering a stronger legal foundation for international climate action. However, its long-term impact depends on how effectively states translate this legal framework into concrete policy changes and actions. This decision serves as a powerful call to action for states to step up their efforts to combat climate change and protect our oceans.