International Tribunal for the Law of the Sea opinion unlocks potential for new legal actions
In a landmark development, the International Tribunal for the Law of the Sea (ITLOS) issued an advisory opinion with potentially far-reaching implications for international environmental law, particularly regarding the obligations of states to mitigate greenhouse gas (GHG) emissions.
The opinion, published in May 2024, said that states should take “all necessary measures” to reduce GHG emissions to protect the marine environment. The opinion effectively framed these emissions as a form of marine pollution under the United Nations Convention on the Law of the Sea (UNCLOS).
This opinion is the first where an international judicial body has addressed the climate crisis, noted a news release from the International Bar Association (IBA).
Though advisory in nature and not legally binding and enforceable, the opinion may shape international norms moving forward. It may serve as a significant step in the fight against climate change and may set a new standard for interpreting state obligations under international law.
The ITLOS opinion explicitly categorized GHG emissions as marine pollution, which brought them within the scope of the UNCLOS. This interpretation could potentially open the door to a wide array of new legal actions, particularly in cases where emissions are shown to cause harm to the marine environment.
“It is, effectively, creating new international legal obligations on signatories,” said Louise Fournier, legal counsel at Greenpeace, in the news release. “The ripple effect will be significant, and its legal determinations will be used in a range of subsequent climate cases.”
Rajat Jariwal – publications officer of the IBA’s environment, health and safety law committee and a dispute resolutions partner with Trilegal in New Delhi, India – stressed that this is a critical moment for environmental and climate laws.
“Many national rules are being overhauled, being made more stringent,” Jariwal explained in the news release. “This Opinion will influence and shape those national rules.”
Indeed, the opinion’s implications are not limited to theoretical discussions. “This unanimous opinion will be referred to and built upon by subsequent courts as a qualitative assessment of the law,” Jariwal said.
A key impact of the ITLOS opinion is its potential to inspire new legal actions directly challenging activities that harm the marine environment through GHG emissions. Small island states, which are often disproportionately affected by climate change, could leverage this opinion in interstate litigation before the ITLOS, the news release suggested.
The opinion’s focus on harm to the marine environment itself, rather than harm to human populations, broadens the scope for potential litigation, the news release added. This could allow for cases where no direct human harm is identifiable but where the negative impact on biodiversity and marine ecosystems is evident.
