Climate crisis: ITLOS Advisory Opinion ‘effectively’ creates new international legal obligations on signatories
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.
Many national rules on climate are being overhauled, being made more stringent. This Opinion will influence and shape those national rules
Rajat Jariwal
Publications Officer, IBA Environment, Health and Safety Law Committee
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