WEBINAR: THE ITLOS ADVISORY OPINION ON CLIMATE CHANGE AND THE LAW OF THE SEA - Impacts on Youth Climate Justice, International Law, and Human Rights

By Paula Moreno-Cervera de la Cuesta*

On July 17, 2024, the World's Youth for Climate Justice (WYCJ) and One Ocean Hub hosted a webinar to discuss the Advisory Opinion (AO) issued by the International Tribunal for the Law of the Sea (ITLOS) on May 21, 2024, concerning the protection of the marine environment from pollution caused by climate change.

The ITLOS Advisory Opinion is a groundbreaking first in international law. The webinar focused on its impacts on youth climate justice, international law, and human rights and its relevance for the ongoing advisory opinions before the Inter-American Court of Human Rights (IACtHR) and the International Court of Justice (ICJ).

The Webinar was attended by a panel of esteemed experts in regard to international law, human rights, climate change, and intergenerational justice, consisting of: Alana Lancaster, lecturer at The University of the West Indies and researcher at One Ocean Hub; Zachary Philips, COSIS lawyer and ICJ counsel for Antigua and Barbuda; Joie Chowdhury, Senior Attorney at the Center for International Environmental Law; and our very own Jule Schnackenberg, member of the Steering Committee of WYCJ. The panel was chaired by Dr. Mitchell Lenan, lecturer at the University of Aberdeen and researcher at One Ocean Hub. 

Context of the Advisory Opinion

ITLOS was asked by the Commission of Small Island States on Climate Change and International Law (COSIS) to interpret the specific obligations of State Parties to the United Nations Convention on the Law of the Sea (UNCLOS) (i) to prevent, reduce, and control marine pollution, and (ii) to protect and preserve the marine environment.

Key Insights from the Advisory Opinion

The webinar started with a brief review of the main takeaways from the ITLOS Advisory Opinion: 

• The Advisory Opinion set a groundbreaking precedent by acknowledging that greenhouse gas (GHG) emissions and the resulting ocean acidification should be classified as pollution affecting the marine ecosystem.

• States are bound by specific duties under maritime law that are distinct from and in addition to the commitments outlined in the Paris Climate Agreement.

• States are mandated to safeguard the marine environment against the detrimental effects of climate change and ocean acidification. This includes the enforcement of rigorous due diligence protocols aimed at minimizing the discharge of harmful substances into the ocean.

• States have the responsibility to prevent transboundary pollution linked to climate change This ensures that their actions do not cause environmental damage to other States' territories and obligates them to contribute to collective international efforts.

• While the opinion is not directly a rights-based opinion, as it interprets States’ obligations under the UNCLOS in the context of climate change, the Tribunal did expressly recognize the human rights concerns that are raised by this issue. Indeed, people are invariably impacted by adverse consequences of climate change inflicted on the ocean and the marine environment, making the protection of the ocean and the marine environment vital for the protection of human rights. Additionally, two judges separately confirmed that international human rights obligations are applicable to the protection and preservation of the marine environment from climate change, which includes the obligation to prevent disproportionate impacts of climate change on those who are in vulnerable situations.

Key Messages and the Ongoing International Advisory Opinions

Considering the ITLOS Advisory Opinion laid a robust groundwork for subsequent opinions, the panelists discussed critical legal arguments for future consideration in the upcoming advisory opinions by the IACtHR and ICJ: 

1. The emphasis placed on the best available science and the establishment of a due diligence objective standard

The Advisory Opinion underscored the importance of integrating the best available scientific knowledge into States’ legal obligations and necessary measures addressing climate change. This includes legislative, administrative, and policy measures. While States are granted a degree of discretion, known as the margin of appreciation, they must exercise due diligence. Hence, these choices are subject to an objective standard, which requires that they must be informed by the best available science to ensure effectiveness and compliance with international law. The Tribunal and the panelists have also highlighted that this objective standard based on science means that obligations will evolve in parallel to the continuous development of scientific knowledge. This means that, as we learn more about what needs to be done in order to combat climate change, the necessary measures required of States will have to adapt to reflect the most up-to-date scientific knowledge. The panelists expressed their hope and belief that a similar approach will be taken in the other upcoming advisory opinions. 

2. Climate change and the systemic integration of international law

The Advisory Opinion has been pivotal in asserting that State obligations regarding climate change transcend the UN climate change regime, such as the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement. It acknowledged the cross-cutting impact of climate change, necessitating a holistic approach within international law to achieve climate justice for present and future generations.

Therefore, the Advisory Opinion clarified that the obligations under the Paris Agreement and other international treaties are not exclusive or exhaustive. Instead, States have concurrent obligations under different sources of international law and, thus, their responsibilities are multifaceted, encompassing various domains such as ocean governance, human rights, and climate change. This is essential to guarantee the delivery of climate justice-oriented outcomes for present and future generations. In particular, the Tribunal stated that the obligations under UNCLOS are more extensive than those under the Paris Agreement and are not satisfied by merely adhering to respective obligations under Paris. 

This point is particularly relevant as some States have argued that the only obligations under international law that apply to climate change are those set out by the UN climate change agreements in an attempt to exclude obligations under, for instance, UNCLOS or international human rights law.  As emphasized by the panelists, the fact that the Tribunal has expressly rejected such arguments is already a great win in this Advisory Opinion and is hopefully going to be echoed by the other forthcoming opinions as well. 

3. The breach of international obligations and the lack of enforcement measures

Additionally, the webinar delved into the absence of a discussion regarding the questions of legal consequences stemming from breaches of legal obligations under international law. Some States argue that the conduct that has caused significant harm to the climate system does not carry any significant legal consequences under the law of State responsibility. It was suggested that this area could potentially be further explored in the ICJ Advisory Opinion, which might address cessation of wrongful acts, assurances against recurrence, and the necessity for comprehensive reparations, including restitution or compensation. 

Nevertheless, the ITLOS opinion did make one thing clear that is very important on this issue. While there are complexities and difficulties in establishing State responsibility due to the complex nature of climate change, this does not mean that the law of State responsibility is inapplicable. A breach of an obligation under UNCLOS would engage the international responsibility of that State. This paves the way for the application of the law of State responsibility to climate change, which could be further developed by the ICJ. 

4. Human Rights: an area for further development 

ITLOS elaborated on the connections between the marine environment and human rights, particularly for small island nations disproportionately affected by climate change. There is a call for the IACtHR and other bodies to elucidate human rights standards in relation to land, sea, and climate change. This builds on the work of international entities like the UN Human Rights Council.

Further developments could include interpretations of international biodiversity law, climate change law, human rights, and children's rights law, as well as addressing the risks faced by ocean and climate advocates.

5. The three climate change opinions: ITLOS, IACtHR, ICJ

The ITLOS Advisory Opinion - being the first opinion that was issued by an international court on climate change - set a crucial precedent for the other two opinions that are forthcoming: opinions from the IACtHR and the ICJ. To that end, the findings of ITLOS are expected to provide critical guidance to the forthcoming climate advisory opinions. Not only could the other courts adopt similar approaches to ITLOS, but notably the resolution requesting an opinion from the ICJ expressly talks about the UNCLOS and the duty to protect and preserve the marine environment. In light of the above, ITLOS can both specifically inform the ICJ to understand States’ international duties to protect the oceans in the context of the climate crisis and also, more broadly, how the ICJ will define State obligations regarding climate change. 

6. Reflection on the role of the advisory opinions

All three forthcoming advisory opinions, as well as many other important ongoing projects, are the necessary pieces to the puzzle of solving the climate crisis. The panelists emphasized that all three AOs will have to be read together and present a once-in-a-generation opportunity for international judicial bodies to clarify State responsibilities to confront climate change under international law, which could have ripple effects for decades to come. 

While AOs are not binding, they are authoritative interpretations of binding laws, meaning that they do carry great legal weight. The ITLOS AO will undoubtedly influence other courts' interpretations and rulings pending in future cases as well as laws and policies around the world and facilitate future climate negotiations by providing additional tools to bolster arguments on the needs of the vulnerable. 

Indeed, advisory opinions provide crucial guidance to States and courts alike, influencing decisions about policy and legal proceedings. Nevertheless, according to the panelists, what is important to remember is “that the power of law is not only in its enforcement when disputes arise, for example in contentious cases, but it is also in its capacity to prevent such disputes from arising in the first place by aligning understandings of what conduct is permissible and required”. Meaning that, in the best case scenario, States would use their opinions in order to guide their actions going forward in such a way that they fully comply with their international obligations in the context of the climate crisis.

7. Reflection on the accessibility to advisory opinions

Finally, the webinar discussed the necessity of having an open, accessible, and public process surrounding the process of adopting advisory opinions. As opposed to contentious cases, Advisory Opinions provide a platform for smaller entities, such as small island nations and those from the Global South, to present their arguments. Such advisory opinions, such as the one issued by ITLOS, are not only authoritative but extremely influential in local, regional, and global contexts. As noted above, they clarify the law not only for the purposes of future contentious proceedings but also in order to guide States in their every action. In order to be able to hold States accountable and make sure they abide by their international obligations, the people must understand these opinions, making it vital for these opinions and the adoption process surrounding them to be accessible to the public. Thus, the media, youth, civil society, and others, such as interpreters, play a crucial role in making the complex legal matters of the AOs accessible to the public "making the legal aspects digestible for the average person."

Conclusion

Overall, the ITLOS Advisory Opinion offers strong and progressive interpretations of legal obligations; the panelists all agreed that the Advisory Opinion was fundamental and should definitely be considered a win for climate justice. While some aspects will have to be further developed, this was a great first step toward protecting the planet and its people - now and in the future.

If you would like to learn more, please watch the webinar here!

*Paula is a Spanish Lawyer specializing in Energy and Environmental Law. She also has experience in human rights, and international climate and environmental law.