The International Tribunal for the Law of the Sea (ITLOS) will deliver an advisory opinion on the obligations of countries to prevent climate change on May 21. This opinion, while non-binding, could push member states into action and offer insight into how the International Court of Justice may rule on its 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 has been signed by 168 states and the European Union. However, the United States signed the agreement in 1994 but has not ratified it, making them not a party to the Convention.
UNCLOS established ITLOS in Hamburg, Germany to handle disputes related to the interpretation or application of the Convention. The Tribunal can also give an advisory opinion on a legal question if an international agreement related to the Convention specifies such a request. Since its formation, the Tribunal has issued opinions in 29 cases and given two advisory opinions. In December 2022, the Commission of Small Island States on Climate Change and International Law submitted a request to ITLOS for an advisory opinion on the obligations of States to protect the maritime environment in relation to climate change.
The request posed a two-part question to the Tribunal regarding the obligations of State Parties to UNCLOS to prevent, reduce, and control pollution of the marine environment in relation to climate change, as well as to protect and preserve the marine environment in relation to climate change impacts. Following the request, 30 countries, the European Union, and eight international organizations submitted written statements on the matter. ITLOS held oral arguments from September 11 – 25, 2023, to consider the perspectives presented.
COSIS argued in its written statement that States have an obligation under UNCLOS to take action to prevent climate change, citing Article 194’s requirement to take measures to prevent pollution of the marine environment. They also pointed to Article 192 as establishing a duty to protect and preserve the marine environment, which includes mitigating climate change impacts. If COSIS is successful, the advisory opinion could lead to further litigation and may influence the pending International Court of Justice advisory opinion on the Obligations of States in respect of Climate Change.
ITLOS Judge Albert Hoffmann will deliver the advisory opinion on May 21, 2024, at the main Tribunal courtroom in Hamburg, Germany. The decision, while not legally binding, could have implications for future legal action and influence the approach of member states to climate change. The Tribunal’s written opinion will be published on their website following the hearing. Numerous states and international organizations have submitted statements on the matter, indicating the global significance of the issue at hand.
