The Tribunal confirmed that States party to UNCLOS must take measures to prevent marine pollution caused by climate change, on top of their obligations under the Paris Agreement.
By Paul A. Davies, Sophie J. Lamb KC, Michael D. Green, and Stephanie Forrest
On 9 April 2024, the International Tribunal on the Law of the Sea (ITLOS, or the Tribunal) issued a long-awaited advisory opinion on climate change and international law, concluding that States party to the United Nations Convention on the Law of the Sea (UNCLOS) are subject to specific obligations to prevent, reduce, and control greenhouse gas (GHG) emissions and their adverse effect on the marine environment.
While this advisory opinion is not binding and did not assess any specific State’s liability, it clarifies the scope of the obligations of States party to UNCLOS with respect to climate change. States are required to take “all necessary measures” to reduce, prevent, and control marine pollution caused by climate change, and conduct environmental impact assessments (EIAs) to monitor public and private activity. Those that fail to do so face the risk of future UNCLOS proceedings.
The Tribunal’s opinion may also have wider implications for companies facing climate change-related actions. While the Tribunal’s opinion addresses only the potential liability of States, it will likely be referred to by claimants in the increasing number of actions brought against companies. In practice, we have observed claimants relying on key factual and legal findings from these “framework” cases as part of their case strategies against companies.
This opinion is also an important reminder that, when it comes to addressing climate change through international law, the United Nations Framework Convention on Climate Change (UNFCCC) regime and the Paris Agreement are not the be-all and end-all. The Tribunal made clear that UNCLOS obligations would not be satisfied “simply by complying with the obligations and commitments made under the Paris Agreement”. This advisory opinion follows the European Court of Human Rights’ recent judgment on climate change, in which the court concluded that Switzerland had breached Article 8 of the European Convention on Human Rights by failing to implement effective measures to combat climate change. It also precedes the awaited opinions from the Inter-American Court of Human Rights and the International Court of Justice, all of which will likely have a major impact on the understanding of the legal obligations of States and companies alike.
This Client Alert provides (1) a short background to the request to ITLOS for an advisory opinion, (2) an overview of the key findings in the advisory opinion, and (3) an explanation of the implications of ITLOS’ findings.