The International Tribunal for the Law of the Sea concluded the public hearings on the obligations of states to protect the world's oceans in the light of the climate crisis

From September 11 to September 25, 2023, the International Tribunal for the Law of the Sea (ITLOS) held a public hearings in the Case No.31 on the Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law (COSIS). The Center's experts closely followed the proceedings in Hamburg.

The Commission called on the Tribunal to recognize greenhouse gas (GHG) emissions as marine pollution under the 1982 UN Convention on the Law of the Sea (UNCLOS) and to define the parameters of States' obligations to protect the marine environment in relation to the adverse effects of climate change caused by anthropogenic GHG emissions.

Under the Convention, Parties are obliged to take measures to prevent, reduce, and control pollution of the marine environment, while climate change or GHG are not addressed in the document. The authors of the request to the Tribunal defend the position that the UNCLOS requires its Parties to take immediate measures to reduce GHG emissions to protect the marine environment already affected by CO2 pollution. At the same time, the COSIS seeks recognition of the binding nature of the most ambitious reduction targets.

It should be recalled that the Paris Agreement aims to hold the increase in the global average temperature to well below 2 °C above pre-industrial levels and pursue efforts to limit the temperature increase to 1.5 °C above pre-industrial levels. While according to the COSIS' position, the scope of countries' obligations should be determined in the light of the best available science (referring to the the findings of the Intergovernmental Panel on Climate Change): COSIS states that science shows the need to keep global warming to a maximum of 1.5 °C.

"The irrefutable scientific facts are not in dispute; that temperature rise must remain within 1.5ºC, which requires rapid and radical mitigation of greenhouse gas emissions, failing which there will be catastrophic consequences," said in his statement Payam Akhavan, Chair of the COSIS' Committee of Legal Experts.

The Commission members hope that the ITLOS advisory opinion will encourage governments to take more ambitious action to combat climate change.

More than 50 States, international and non-governmental organizations had previously submitted written positions to the Tribunal. Many of them also made oral statements during the past hearings. Among the key issues raised are the Tribunal's advisory jurisdiction, the definition of the scope of "pollutants", the content of obligations to protect the marine environment in light of climate change, and the relationship between the UN Convention on the Law of the Sea and the UN Framework Convention on Climate Change.

Why is this process particularly significant? The ITLOS is one of three international judicial bodies currently considering requests for advisory opinions on climate change. While the Tribunal's advisory opinion will not be legally binding, by being the first (and so far, the ITLOS is furthest along in considering the application), it could influence the climate cases before the Inter-American Court of Human Rights and the International Court of Justice, and more generally, the climate policy debate, the number and content of national litigation, the new grounds for complaints and previously unused means of dispute resolution, and other far-reaching consequences.

Read the materials and watch the webcast.