Small Island States push for answers on Climate Change from the ICJ and ITLOS

On 12 December 2022, the International Tribunal on the Law of the Sea (ITLOS) received a request for an advisory opinion on the interpretation of the obligation to preserve and protect the marine environment under the 1982 UN Convention on the Law of the Sea (UNCLOS) in relation to climate change impacts such as ocean warming, sea level rise and ocean acidification. The request was made by the Commission of Small Island States on Climate Change and International Law (COSIS), an international organisation established by way of an international agreement in late 2021, whose mandate expressly includes requesting advisory opinions from the ITLOS (Article 2(2)). The COSIS project is complementary to the initiative led by Vanuatu along with other small island and climate-vulnerable states to request an advisory opinion on climate change from the International Court of Justice (ICJ).

On 20 November 2022, the latter project culminated in a draft resolution text which was notified to all UN member states and is set to be tabled for discussion and voting at the UN General Assembly in early 2023. This draft, prepared by a coalition of 17 countries, asks the ICJ to answer two questions based on conventional and customary international law, viz.  

  • what are the obligations of States to ‘ensure the protection of the climate system and other parts of the environment for present and future generations’; and
  • what legal consequences these obligations envisage for those states that have caused significant harm to the climate system and other parts of the environment, with respect to injured, specially affected or climate-vulnerable countries and ‘peoples and individuals’ of present and future generations affected by the adverse effects of climate change.

The ICJ’s advisory jurisdiction extends to ‘any legal question’ requested by the UN General Assembly and the Security Council, and legal question ‘arising within the scope of [the] activities’ of other authorized bodies (Article 65, ICJ Statute; Article 96, UN Charter). However, the fact that the Court is requested to answer a legal question by way of a UN General Assembly resolution does not mean that it has a duty to exercise its advisory jurisdiction. For reasons of propriety, the ICJ may refuse to answer legal questions posed to it.

In its jurisprudence, the ICJ has explained that it will not answer a request if doing so ‘would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent’ (Western Sahara, [33]). This is not a hurdle for the request at hand as the draft resolution does not single out individual countries who may be regarded as violating international legal rules and principles relating to the ‘protection of the climate system or other parts of the environment for present and future generations.’ The initiative seems to be motivated by a desire for greater clarity on climate change related obligations and the consequences of their breach. There is no doubt that small island states and other vulnerable countries are unsatisfied by the level of protection or the depth of obligations to take protective measures envisaged by the international climate change regime.

While the initiative may be perceived as an attempt to circumvent the problems associated with the international law-making process by asking for judicial law-making, it may be argued that the initiative hopes for the Court to articulate existing international legal norms which may be derived from different legal regimes including international human rights law and the law of the sea, and different kinds of norms (rules and principles). Which one of these two frames the Court adopts is significant as it has implied in a previous case that it may be compelled to refuse a request for advisory opinion on account of its influence on ongoing international negotiations (Thirlway, 2006, at [17]).

It remains to be seen if a majority of the UN General Assembly members are convinced of the merits of adopting this resolution, although some reporting suggests that at least 100 countries have indicated their support for the resolution. It is also worth noting that previous efforts of a similar kind by the Marshall Islands and Palau failed to reach the formal negotiation stage at the Assembly. The initiative led by COSIS, on the other hand, does not face such a hurdle. In contrast to the ICJ, access to the ITLOS to obtain an advisory opinion is broad. The Tribunal’s jurisdiction comprises all matters specifically provided for in any international agreement which confers jurisdiction on the tribunal (Article 21, ITLOS Statute); and the Tribunal ‘may give an advisory opinion on a legal question if an international agreement related to the purposes of the [UNCLOS] specifically provides for the submission to the Tribunal of a request for such an opinion’ (Article 138, ITLOS Rules). It is necessary that the requesting body has been authorized to submit a request by such an international agreement, and the request contains ‘a legal question’ having a sufficient connection with the purposes and principles of that international agreement (SFRC Advisory Opinion, [60], [68]).

The text of the Agreement establishing the COSIS clearly indicates that it is an international agreement related to the purposes of the UNCLOS, especially concerning the protection and preservation of the marine environment as well as the preservation of interests in the maritime rights and entitlements provided for under the UNCLOS. The request filed by COSIS asks the Tribunal to clarify the ‘specific obligations’ of parties to the UNCLOS to take measures relating to greenhouse gas emissions which cause deleterious effects on the marine environment; and measures responding to climate change impacts on the marine environment, including ocean warming, sea-level rise and ocean acidification. In the past, the ITLOS did not shy away from answering clarificatory legal questions surrounding states’ obligations to respond to the global problem of Illegal, Unreported and Unregulated (IUU) Fishing, which was brought to it by an inter-governmental fisheries cooperation organization established by an agreement between seven West African coastal states who were particularly affected by IUU Fishing (SFRC Advisory Opinion). The agreement establishing the COSIS seems to be inspired by this example and may be rightly described as the first jurisdictional agreement concluded for the primary purpose of seeking advisory opinions from the ITLOS. Considering its approach in the SFRC Advisory Opinion, it is likely that the ITLOS will find that it does indeed have the jurisdiction to give an advisory opinion on COSIS’ request.

Written by Pranav Ganesan (Research Assistant at the Chair of Professor Helen Keller, University of Zurich)

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