The International Tribunal for the Law of the Sea (ITLOS), in an opinion published in May, has declared that states must take ‘all necessary measures’ to reduce greenhouse gas emissions (GHG) to protect the seas. In its advisory opinion (the ‘Opinion’) – the first produced about the climate crisis by an international judicial body – ITLOS argues that GHG emissions constitute a form of marine pollution and thus come within the ambit of the Convention on the Law of the Sea, the international treaty that governs the high seas and oceans and which has been ratified by 169 countries.

Although it’s advisory and not legally binding, the Opinion puts forward a strong and persuasive position on the role of international law in assessing a state’s obligations to combat the impact of GHG emissions on the world’s oceans. ‘It is, effectively, creating new international legal obligations on signatories,’ says Louise Fournier, Legal Counsel at global campaigning network Greenpeace. ‘The ripple effect will be significant, and its legal determinations will be used in a range of subsequent climate cases'. 

The principles set out in the Opinion could provide the base for a range of new causes of action. For instance, they open the door to direct challenges against activities that contribute to emissions that harm the seas. This could take the form of inter-state litigation before ITLOS in which a small island state sues a major polluter, for example. Indeed, it was a collective of small islands that requested the ITLOS Opinion in the first place.

And because ITLOS is concerned with harm to the marine environment itself rather than harm to humans as a knock-on effect of environmental degradation, the Opinion could be used in cases where there’s no identifiable harm to a group of people – such as must be demonstrated in human rights cases – but where there’s harm to biodiversity. 

It will also probably be cited across a wide spectrum of other climate cases. ‘This unanimous opinion will be referred to and built upon by subsequent courts as a qualitative assessment of the law’, says Rajat Jariwal, Publications Officer of the IBA Environment, Health and Safety Law Committee and dispute resolutions partner with Trilegal in New Delhi. The Opinion’s legal determinations will also filter through to regional and domestic laws and regulations. ‘We are at a critical moment in [terms of] environmental and climate laws’, explains Jariwal. ‘Many national rules are being overhauled, being made more stringent. This Opinion will influence and shape those national rules'.

A number of themes of international law, such as the ‘precautionary principle’ – which states that where there’s reason to believe that harm could be caused, even if it hasn’t already, measures should be taken – are brought out in the Opinion. ‘These principles will be disseminated more widely and increasingly uniformly’, says Jariwal.

As a creature of international law, the ITLOS Opinion does have potential limits: if a recalcitrant state is taken before ITLOS, the Tribunal’s rulings aren’t enforceable. Fournier concedes that this is a weakness. However, she argues that a ruling against a state would be ‘shaming’, and ‘states do not like to be named and shamed’. Lack of enforceability, therefore, isn’t perhaps as significant as one might think.

More important is that the Opinion is helping to build what Fournier terms ‘a set of international norms on states’ obligations’. This is not least because it’s the first of three advisory statements on the climate crisis and the obligations of states to be published. Opinions are also expected from the Inter-American Court of Human Rights later in 2024, and from the International Court of Justice in 2025.

The main obligation on states set out in the Opinion is to take ‘all necessary measures’ to counter the effects of GHG emissions – such as acidification and warming – on oceans. The Opinion makes clear that there’s discretion for governments to decide what that means in practice. But it warns that this discretion is not absolute, and that the notion of necessity should be ‘objectively determined’, taking into account certain factors. A state, then, can’t make up its own mind entirely about what’s necessary.

Such factors include ensuring that a state builds in ‘the best available science’ when deciding what measures are necessary to combat GHG emissions, including the findings of the Intergovernmental Panel on Climate Change (IPCC), which it describes as ‘reflect[ing] the scientific consensus’. Fournier says this is an important conclusion of itself – that, for courts and tribunals, the scientific rationale around the climate crisis is firmly established.

Another factor will be a state’s practical capacity to take any such measures. States with greater capacity will be expected to do more than states with less, recognising a principle of ‘common but differentiated responsibilities’, as the Opinion puts it. A state’s measures will also be assessed in the light of other international rules and standards such as the UN Framework Convention on Climate Change (the UNFCCC) and the Paris Agreement. In citing these, ITLOS is ‘clearly interlinking climate change treaties with the Convention [on the Law of the Sea]’, says Fournier.

Published only a month after the bold judgment from the European Court of Human Rights in Verein KlimaSeniorinnen Schweiz & Ors, in which the Court found that failing to properly tackle the climate crisis is a human rights issue, the ITLOS Opinion demonstrates how all of these legal determinations align and reinforce each other and will shape how states behave going forward. ‘For too long, countries have turned up to COP [the UNFCCC’s annual conference] each year and just put their name to long-term goals to limit temperature increases and so on, as if it’s group homework’, says Fournier. ‘All these opinions and regional human rights [systems] make it clear that they have to introduce measures to reduce omissions themselves – they must do their own homework’. 
 

Image credit: The Ocean Agency/adobestock.com 

Georgia’s ‘foreign agents’ law has sparked mass demonstrations and put the country’s EU candidacy in jeopardy. On 14 May, Georgian lawmakers passed the controversial ‘transparency of foreign influence’ bill – or ‘foreign agents’ law – despite weeks of clashes between police and protesters, who claim the government will use the legislation to stifle free speech and dissent.

Georgia’s ‘foreign agents’ bill was initially proposed in 2022 but was dropped amid significant international and domestic backlash that it could severely limit media freedom and democracy and harm Georgia’s bid to join the EU.

The proposals drew criticism from the Georgian Bar Association (GBA), which issued a statement in 2023 that said the legislation posed ‘risks in deepening polarization, social conflict and undermining democratic processes’ and could ‘contribute to the marginalization of human rights lawyers, thereby violating the principles of lawyer equality and non-discrimination.’ 

David Asatiani, Chairman of the GBA and Co-opted Member of the IBA Bar Issues Commission Policy Committee, told Global Insight the law had been reintroduced with only ‘minor changes’ – such as replacing the words ‘foreign agent’ with ‘foreign influence’ – and stressed that ‘some fundamental concerns remained’.

Asatiani says the political furore surrounding the bill has left ‘little space for a thorough discussion of legal and procedural issues’. These concerns were echoed across the international community, including drawing criticism from the Venice Commission, the Council of Europe’s top constitutional law body.

Mary Lawlor, the UN Special Rapporteur on the situation of human rights defenders, who visited Georgia in October 2023, previously raised repeated concerns about the draft law. In a statement, she said the most recent parliamentary discussions ‘appear to have taken place without inclusive, transparent and genuine consultations with civil society, society at large and opposition parties.’

The threat to Georgia’s EU accession is particularly perturbing. Georgia applied to join the EU in 2022 and was granted candidate status in December 2023.

EU foreign policy chief Josep Borrell said if the government did not rescind the law the country would ‘not progress on the European Union path’ and the bloc would consider freezing financial aid to Tbilisi.

Recent polling indicates around 80 per cent of Georgians want to join the EU. The desire for closer ties with Europe is so wrapped up in the national psyche, says Asatiani, that when high-ranking EU officials criticised the law, civilians had no choice but to protest. ‘The Georgian people, who have invested hope and effort into aligning their country with European values, saw this criticism as an indication that the law could derail their progress towards EU membership, and this has provoked such a reaction of the people.’

Pavel Slunkin, a visiting fellow at the European Council on Foreign Relations, says the law’s reintroduction reveals the very real dangers of democratic backsliding in Georgia. ‘Despite hundreds of thousands of people on the streets and all this criticism from the Venice Commission and European politicians, the Georgian Dream continue [with the law] and they have all this support from Russia,’ he says. It also illustrates, he says, how easily a democratic country with established institutions can ‘step back into the dark past’.

Local NGOs are preparing to challenge the law at the country’s Constitutional Court. Davit Zedelashvili, a constitutional lawyer at the University of Tbilisi, believes the legal bid may prove largely symbolic. ‘It is not expected that the Constitutional Court will overrule the regime on this point,’ he says. ‘It has been captured by the state for a long time now and acts in many cases as an instrument to justify the regime's policies.’

The law could also be challenged at the European Court of Human Rights, though the prospects there also seem limited. A similar claim was brought in 2013 by NGOs against Russia's ‘foreign agents’ law. It took until June 2022 for the Court to rule that the law violated the rights of Russian civil society, a decision which many described as too little too late.

Looking ahead to Georgia’s parliamentary elections in October, Zedelashvili’s most concerned that the law signals a ‘troubling moment’ as the Georgian Dream seeks to roll back the rule of law and human rights. ‘There’s that realisation now that the government is acting in the interests of Russian geopolitical and state interests,’ he says. ‘By adopting this law, the regime hinted that it has a serious intention also regarding the elections; to use this tool to crack down on election monitoring organisations, expand electoral fraud legislation and its willingness to use mass repression to overcome public protests.’

The government has also proposed a wide-ranging bill on family values and the protection of minors. The proposals, which build on a pre-existing ban on same-sex marriage to outlaw adoption by same-sex parents and ban gender-affirming surgery and treatments, have been condemned as deeply discriminatory to the LGBTQI+ community.

It is not expected that the bill will be passed until after the elections, but government opponents believe it signals an attempt by Georgian Dream to curry favour with conservative voters and maintain its grip on power.

Image: Georgian Parliament building. Dejan Gospodarek/AdobeStock.com