Maritime Affairs Program (MAP) Handbill Spotlight

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On May 21, 2024, ITLOS made global headlines after issuing an unanimous landmark advisory opinion on climate change. The request was submitted in 2022 by the Commission of Small Island States on Climate Change and International Law led by Tuvalu and Antigua and Barbuda. In the advisory opinion, the Tribunal concluded that atmospheric greenhouse gas emission is considered as “pollution” to the marine environment under the definition of UNCLOS. More importantly, the Tribunal concluded that States bound by UNCLOS have the specific obligation to take all necessary measures to “prevent, reduce, and control…pollution…caused by anthropogenic greenhouse gas emissions.”

This opinion marks the first legal opinion issued by an international judicial body that directly addresses climate change. It is also the first time an international judicial body has outlined the specific legal obligations of states to address greenhouse gas emissions related to climate change. Though this advisory opinion is not legally binding, it provides a clearer legal framework for holding states accountable for greenhouse gas pollution and sets an unofficial legal precedent for future climate-related legal decisions. This advisory opinion carries a significant signaling effect that could strengthen existing advocacy for climate legislation and increase states’ willingness to adopt climate policies.

Keep In Mind

As notable and unique as ITLOS is, it does face several barriers in efficacy. As mentioned above, ITLOS, like many international judicial bodies, is constrained by its enforcement and limited in its ability to induce compliance. It does not have the power to unilaterally decide to adjudicate on disputes, nor the power to summon the involved parties. This means that a party’s non-appearance often poses difficulties in the Tribunal’s functioning. One example was The Arctic Sunrise Case, where Russia simply chose not to participate in the ITLOS proceedings regarding its dispute with the Netherlands. 

Despite these caveats, ITLOS still holds significant weight in settling disputes. In the Case concerning the detention of three Ukrainian naval vessels in 2019, ITLOS’ provisional measures added legal pressure on Russia and eventually led to the release of the detained Ukrainian vessels and Ukrainian servicemen. As it derives its authority from UNCLOS, ITLOS’ movements represent international law and what is expected to be the consensus of the international community. 168 States have ratified UNCLOS, and the influence of this international consensus is robust. ITLOS’ orders may, therefore, severely stigmatize state actions and result in self-enforcing compliance. Even if it does not, it creates additional incentives for de-escalation and party-to-party negotiations.

It is also important not to underestimate the impact of ITLOS’ advisory opinions. In ITLOS’ recent opinion on climate change, the Tribunal provided a much clearer legal language on states’ obligations in preventing greenhouse emission. Climate advocates now have a clearer legal basis to hold states accountable for climate change and to push for climate legislation. The opinion also established unofficial precedent for other international judicial bodies to adjudicate on climate-related matters, thereby increasingly strengthening current legal frameworks on climate change. Sovereign states, in reaction, would grow increasingly aware of its climate impacts and potentially change their polluting behaviors to comply with the UNCLOS. The obligations explicitly outlined in the advisory opinions make it difficult for States—especially those who have ratified UNCLOS, like China and India—to blatantly ignore climate change’s impact. Therefore, while the ITLOS remains limited in its capacity to enforce international law, its significance in shaping international norms and guiding state behaviors cannot be overlooked.