On May 21, 2024, the International Tribunal on the Law of the Sea (ITLOS) made history by articulating the legal obligations of countries to protect the marine environment from climate-change related impacts. Here are the key points of the landmark Advisory Opinion and its far-reaching implications, which are expected to raise the bar for climate action.
We have known for a while now that our world faces a triple planetary crisis of climate change, biodiversity loss, and pollution. In spite of it, call my views progressive if you like, but I believe the need to develop and implement a more robust system of international law, for tackling a multifaceted planetary crisis, is compelling and at a climacteric (pun-unintended) stage. Advisory Opinions by international courts or tribunals can contribute to the explication of such law and carry both legal weight and moral authority, despite not being legally binding. Such advisory opinions are being recognised by legal experts as a novel mechanism for climate change litigation, which has been on the rise.
To translate science into policy action requires interpreting existing law progressively and in cognizance of the latest scientific evidence. The International Tribunal on the Law of the Sea (ITLOS) did just that in its landmark Advisory Opinion (henceforth “Opinion”) on climate change and the law of the sea, issued on May 21, 2024. The Opinion, which was notably unanimous, gave legal force to the inextricable scientific link between climate change and the health of the oceans.The Opinion provides legal recognition to the Intergovernmental Panel on Climate Change’s (IPCC) latest and most dependable science on the cause-effect relationship between the accumulation of anthropogenic greenhouse gasses (GHGs) in the atmosphere on the one hand, and its manifold harmful effects on the ocean, on the other. This includes damaging effects through “sea level rise, increased ocean heat content and marine heat waves, ocean deoxygenation, and ocean acidification.”
It is commendable how an international court extensively and boldly lays on the line the most recent and authoritative science. ITLOS (henceforth “the Tribunal”) bases its opinion directly on an explicit acknowledgment of the robust evidence and high level of scientific consensus drawn from the IPCC’s 2023 Synthesis Report, according to which climate change effects “substantial damages and increasingly irreversible losses” in coastal and open ocean ecosystems.
The Opinion provides due weight to some of the crucial findings of the IPCC that deserve widespread attention and replication.
This historic Opinion has several features with potentially far-reaching implications, not all of which can be covered with the ambit of this article. It is noteworthy that the Opinion was progressive in its interpretation of UNCLOS for States’ obligations concerning climate change and very straightforward in its application of the best available science. And as lucidly expressed by Tara Davenport of the National University of Singapore, an obligation of conduct (while not an obligation of result) is a serious and stringent standard and not one that States can hide behind. States can also use it as diplomatic leverage in any forum or as leverage nationally.
Eran Sthoeger, counsel to Timor Lester in the ITLOS proceeding, also strikingly propounds (in his private capacity), that whereas in international climate negotiations some States can carry more political weight and influence than others, advisory proceedings, on the other hard, present a unique opportunity for all countries to participate in an equal and fair way. In his words: “All States have a similar time slot and all have a similar voice and the same opportunity to influence the Tribunal or the Court. To an extent, the power dynamics and conversations behind the scenes also reflected equality.”