More than a Sink
The difference between treating the oceans as a mere sink versus protecting them as a vital part of the environment has important implications under international law. These implications come to the fore when considering the relationship between the UNCLOS on the one hand and the UNFCCC and its Paris Agreement on the other. While the latter treaties in no way legitimize pollution of the marine environment, their focus on oceans as sinks could be misinterpreted to deprive UNCLOS and the customary rules it codifies of a meaningful role in addressing climate change.
Continue reading >>
Why Climate Science Matters for International Law
The International Tribunal for the Law of the Sea (ITLOS) issued an advisory opinion on May 21, 2024 in response to a request submitted by the Commission of Small Island States on Climate Change and International Law (COSIS). While various aspects of the advisory opinion have already been discussed in this joint blog symposium, this post focuses on a feature of the opinion that has so far received little emphasis: the strong role of science. The scientific evidence presented by the tribunal provides a solid basis for its conclusions on State obligations to prevent, reduce, and control climate pollution.
Continue reading >>
Finding Light in Dark Places
Can the new advisory opinion interpreting the United Nations Convention on the Law of the Sea (UNCLOS) move us beyond the lethargy of unmet climate change policy needs? The International Tribunal for the Law of the Sea established the gravity of this question by stating that “climate change represents an existential threat and raises human rights concerns”. The Tribunal acted both boldly and conservatively by interpreting UNCLOS as an independent source of international legally binding obligations to address climate change and ocean acidification.
Continue reading >>
ITLOS and the importance of (getting) external rules (right) in interpreting UNCLOS
The Advisory Opinion handed down by the International Tribunal for the Law of the Sea (ITLOS) on 21 May 2024 is truly remarkable. However, while ITLOS succeeded in noting the relevance of many other treaties and customary norms in international law, it fell short of a comprehensive and consistent approach to determining which other treaty norms would be relevant to the interpretation of UNCLOS and how. Establishing coherence by “taking into account external rules” means more than a general reference or a pick-and-choose approach to some relevant norms in an external treaty, while not to others.
Continue reading >>
A Small But Important Step
While no advisory opinion can solve the climate crisis, the ITLOS decision does provide an important push for action, both globally and at the national level. It cleared the way for the ICJ’s forthcoming opinion on climate change, demonstrating how a clear and solid line of arguments can be developed. Although the ICJ may decide differently due to variations in the questions posed and treaties interpreted, it is unlikely to diverge significantly from the ITLOS narrative or reject its findings on related topics.
Continue reading >>
Unlocking UNCLOS
By advancing a more holistic vision of climate-relevant international law—one that seeks to harmonise but also allow for complementary interaction amongst the obligations set under different regimes—the ITLOS advisory opinion offers hope. It holds out the promise of a synergistic international legal response to climate change that better maps to the integrated and interconnected nature the ecosystems at stake and to the multi-pronged regulatory effort that will be needed to safeguard our climate system.
Continue reading >>