Breaking News: ITLOS Advisory Opinion Says Nations Responsible for Protecting Oceans from Climate Change

On 21 May 2024, The International Tribunal for the Law of the Sea (ITLOS) delivered its advisory opinion that nations (aka states) have the obligation to protect the marine environment from the impact of climate change. This opinion came in response to a request from the Commission of Small Island States on Climate Change and International Law (COSIS).

In a unanimous opinion delivered by Judge Albert Hoffman, the court responded to the following questions:

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

1. 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 warming and sea level rise, and ocean acidification, which are caused by anthropogenic greenhouse gas emissions into the atmosphere?
2. To protect and preserve the marine environment in relation to climate change impacts, including ocean warming and sea level rise, and ocean acidification?

According to the advisory opinion, “…under article 194, paragraph 1 of the Convention, States Parties to the Convention have the specific obligation to take all necessary measures to prevent, reduce, and control marine pollution from anthropogenic GHG emissions and to endeavor to harmonize their policies in this connection.”

Increasing Use of Courts to Litigate Climate Change

On 12 December 2022, COSIS submitted its request for an advisory opinion on the obligation of nations to protect the marine environment from the consequences of climate change.

COSIS consists of the island nations of Tuvalu, Palau, Niue, Vanuatu, Saint Lucia, Saint Vincent and the Grenadines, Saint Kitts and Nevis, and The Bahamas.

While the highly anticipated opinion is non-binding, it could be a bellwether for upcoming cases before other courts. According to the Climate Change Litigation Database at the Sabin Center for Climate Change Law at Columbia Law School, there are now hundreds of climate change cases around the world.

Other recent actions, such as the such as the decision by the Superior Court of Justice of Loreto, Peru that the Marañón River is an entity with the right to exist free of pollution and the European Court of Human Rights (ECtHR) ruling on the impact of climate change on the human rights of the KlimaSeniorinnen Schweiz, suggest that many courts are responding favorably to the position that countries and citizens can hold other nations to account for climate change.

Opinion Is A Victory for Nations Hit Hard by Climate Change

Environmental experts are praising the decision as a step in the right direction.

“Given the severity of climate harm to the oceans and the grave risk posed by temperature rise above 1.5°C, the Tribunal made it clear that states have to meet a higher bar to fulfill their duties to prevent transboundary harm and protect the marine environment,” said Upasana Khatri, Senior Attorney from the Centre for International Environmental Law. “

Mere participation in global efforts alone doesn't satisfy that stringent standard, Khatri added. “Instead, states must take necessary and effective action, utilizing the resources at their disposal, to mitigate emissions from all activities under their jurisdiction or control carried out by public and private actors-reinforcing the importance of corporate accountability.”

On X (formerly Twitter), Prime Minister Gaston Browne of Antigua and Barbuda hailed the opinion as a victory. “Small island states are fighting for their survival,” said Browne, who worries that some will become uninhabitable in the near future because of the failure to mitigate greenhouse gas emissions. “We demand that the major polluters respect international law and stop the catastrophic harm against us before it is too late. The ITLOS opinion will inform our future legal and diplomatic work in putting an end to the inaction that has brought us to the brink of an irreversible disaster.”

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