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Advisory Opinions and Their Legal Gravitas

Credit: Eriks Cistovs | Pexels

In a landmark initiative to clarify legal obligations tied to climate change and its effects on the ocean, the Commission of Small Island States on Climate Change and International Law (COSIS) submitted a formal request for an advisory opinion from the International Tribunal for the Law of the Sea (ITLOS) on December 12, 2022. The request focused on two critical legal questions under the United Nations Convention on the Law of the Sea (UNCLOS). First, what are the state parties' responsibilities for preventing, reducing, and controlling marine pollution linked to climate change? And second, how should states protect and preserve the marine environment in the context of climate change effects like ocean warming, sea level rise, and acidification?

Although the UNCLOS does not explicitly mention climate change or associated factors, the advisory opinion is expected to interpret these issues in light of the existing UNCLOS framework, specifically under Part XII, which deals with the Protection and Preservation of the Marine Environment. Part XII Article 192 specifically states, “States have the obligation to protect and preserve the marine environment.” Further, Article 193 emphasizes, “States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment.” With similar advisory requests to the International Court of Justice and the Inter-American Court of Human Rights, this advisory opinion represents an emerging global trend to contextualize states' obligations concerning climate change mitigation and adaptation.

Why an Advisory Opinion?

Though not legally binding, the advisory opinion could set a precedent for interpreting states' responsibilities in combating climate change, laying the groundwork for future policies, and instrumentally shaping international legal doctrine. Given that the ocean is both a casualty and a resolution to climate change, acting on such an advisory opinion would be a monumental step for the Tribunal. Further, reports from the Intergovernmental Panel on Climate Change (IPCC) indicate that this advisory opinion is essential to harmonizing international law with the pressing realities of climate change.

Advisory opinions are not dispute-centric but serve as a tool for interpretative guidance on international norms. The utility of advisory opinions lies in their capacity to shape state obligations under international law. These opinions offer broad interpretations unencumbered by case-specific complexities, thus serving as foundational frameworks for future judicial reasoning unless compelling reasons warrant deviation. COSIS strategically sought an advisory opinion from the ITLOS. This move aims to resolve ambiguities concerning international climate obligations and their impact on marine ecosystems without resorting to contentious legal proceedings. The opinion could serve as a cornerstone for future UNCLOS interpretations, offering essential guidance for states and international organizations.

ITLOS Addressing the Request:

The advisory jurisdiction of the ITLOS offers a platform for the Tribunal to interpret existing international norms in new contexts, thus advancing the development of international law. In this case, the Tribunal could create a groundbreaking precedent by articulating the specific obligations of State Parties under UNCLOS concerning climate change on marine ecosystems. Firstly, the ITLOS should examine Part XII of UNCLOS, which pertains to protecting and preserving the marine environment. While UNCLOS was adopted in 1982 and does not expressly address climate change, its principles can and should be read in conjunction with newer developments in international law. Here, the Tribunal has the latitude to extrapolate from UNCLOS's general mandate for States to prevent, reduce, and control marine environment pollution to include obligations specific to climate change impacts like sea-level rise, ocean acidification, and warming.

Secondly, the ITLOS should employ the principle of cross-regime interaction, mainly as provided under Article 311 of UNCLOS, a recognized principle of international law that allows the Convention to be interpreted in light of other international laws. This would enable the Tribunal to consider the IPCC and other reports in framing State Parties' responsibilities under UNCLOS. By doing so, the Tribunal can craft an advisory opinion consistent with the evolving norms of international environmental law. Given the novelty and importance of the issue and the direct impact of climate change on marine environments, the Tribunal has the competence and arguably the obligation to weigh in on this issue.

Will the Tribunal’s Response Be a Positive Step Forward in Dealing with Climate Change?

While not endowed with the authority to adjudicate conflicts or impose mandatory obligations, advisory opinions nonetheless command considerable interpretive weight and ethical clout in developing and clarifying international legal principles. The Tribunal acting on this can be a positive step forward in dealing with climate change. Confronted with questions from the COSIS, ITLOS is charged with articulating the specific commitments of State Parties under the

UNCLOS. Suppose rising sea levels and statehood status are excluded or lack content and comment in the forthcoming opinion. In that case, there is further scope for supplementary perspectives from the International Court of Justice’s advisory proceedings on climate change. Ultimately, ITLOS's advisory stance will serve as a seminal point of reference, shaping the contours of the regulatory landscape concerning maritime aspects of the global climate regime and setting the tone for subsequent international judicial dialogues on similar advisory requests.

*The views expressed in this article do not represent the views of Santa Clara University.


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