The International Tribunal for the Law of the Sea (ITLOS) has announced that they will be delivering an advisory opinion on the obligations of countries to prevent climate change on May 21. This opinion, although limited in scope and non-binding, could potentially compel action by member states and offer a glimpse into how the International Court of Justice may rule on a similar pending advisory opinion on the Obligations of States in respect of Climate Change. ITLOS was established in 1982 through the United Nations Convention on the Law of the Sea (UNCLOS), which is an international treaty that sets out various rights and obligations of countries related to the world’s oceans.
The Convention has been signed by 168 states and the European Union, with notable exceptions such as the United States, which signed but has not ratified the agreement. Despite this, the US is not a party to the Convention. However, only about 28 UN member states have not signed the treaty, including countries like Afghanistan, Colombia, Israel, Peru, Turkey, Venezuela, and the United Arab Emirates. ITLOS was created to handle disputes arising from the interpretation or application of UNCLOS, and may also give advisory opinions on legal questions if allowed by an international agreement related to the Convention.
The request for an advisory opinion on the obligations of States to protect the maritime environment in relation to climate change was submitted by the Commission of Small Island States on Climate Change and International Law (COSIS), a group formed in anticipation of the 2021 United Nations Climate Change Conference (COP26) aimed at promoting collective action to protect the climate system and the marine environment. The request posed specific questions about the obligations of State Parties under UNCLOS to prevent pollution and protect the marine environment in the face of climate change impacts like ocean warming, sea level rise, and ocean acidification.
Following the request, various countries, the European Union, and international organizations were allowed to submit written statements to the Tribunal, and oral arguments were held in September 2023. COSIS argued that State Parties have a duty under UNCLOS to take action against climate change, citing provisions in the Convention that require measures to prevent pollution of the marine environment and protect and preserve marine ecosystems in the face of climate change impacts. If COSIS succeeds in their arguments, it could lead to further litigation against States and encourage the adoption of stricter environmental regulations related to climate change.
The advisory opinion set to be delivered by ITLOS Judge Albert Hoffmann on May 21, 2024, at the main Tribunal courtroom in Hamburg, Germany, is highly anticipated as it could have important implications for State obligations regarding climate change. The opinion may be viewed online following the hearing, and could potentially influence the upcoming advisory opinion by the International Court of Justice on the Obligations of States in respect of Climate Change. The written statements of signing parties to the Convention and intergovernmental organizations that were submitted in relation to the advisory opinion highlight the significant interest and involvement in this critical issue.
