On 21 May 2024, the International Tribunal for the Law of the Sea (the “ITOLS”) expressed their unanimous legal opinion on states’ obligations to safeguard the marine environment in accordance with the 1982 UN Convention with the Law of the Sea (the “UNCLOS”). The request for ITOLS legal opinion was made by the Commission of Small Island States on Climate Change and International Law (the “Commission”) – a collaboration of nine small islands located in the Caribbean and the Pacific. In the lead-up to the legal opinion, over 50 different groups made submissions, including States and intergovernmental organisations.
Under Part XII of the UNCLOS, article 192 sets out strong requirements on countries to ‘protect and preserve’ the marine environment, and article 194(3) provides that they must implement measures to address sources of pollution, such as prevention, reduction and controlling of pollutants. The Commission brought forward the request in relation to anthropogenic greenhouse gas emissions, pointing to the effects it has such as ocean warming, ocean acidification and additional dangerous effects. In seeking the legal opinion, the commission aimed to establish that these greenhouse gas emissions fall under Part XII of UNCLOS and to get more guidance on the particular obligations of state parties under UNCLOS in relation to the marine environment.
ITOLS found that anthropogenic greenhouse gas emissions are pollutants per UNCLOS, and held that there is an obligation on state parties to take all measures that are necessary while respecting their margin of discretion. In defining what comes within the scope of necessary measures, ITOLS pointed to scientific evidence and international rules and standards. Additionally, ITOLS drew a line between the Paris Agreement and UNCLOS, noting that there are independent obligations under the UN such that meeting the former would not necessarily be enough to satisfy the latter. Another point discussed by ITOLS covered how UNCLOS provides a means of addressing the imbalance faced by developing and climate-vulnerable countries which tend to have a lesser climate impact but suffer to a greater extent, and the tribunal emphasised that states must assist such countries to tackle their marine pollution from greenhouse gas emissions. Outlining the extent of state parties’ climate obligations, Judge Albert Hoffman, when delivering the opinion, held,
“States also have the obligation to protect and preserve the marine environment from climate change impacts and ocean acidification.”
The opinion issued is the first of three, with two to follow from the Inter-American Court of Human Rights and the International Court of Justice, which should provide further clarity on the legal obligations of state parties in relation to measures in combatting climate change. The Prime Minister of Antigua and Barbuda, Gaston Browne, commented on the potential future benefits of the first opinion believing it to be,
“Putting an end to the inaction that has brought us to the brink of an irreversible disaster.”
Click here to read the advisory opinion of the International Tribunal for the Law of the Sea.