Justice Initiative Welcomes ITLOS Advisory Opinion on Climate Change and the Marine Environment

NEW YORK—The Open Society Justice Initiative welcomes the delivery by the International Tribunal for the Law of the Sea (ITLOS) of the first international judicial opinion on state obligations concerning climate change.

ITLOS’s advisory opinion, issued on May 21, clarifies the obligations of states under international law to protect the marine environment from the adverse effects of climate change.  

The tribunal found unanimously that greenhouse gas emissions (GHG) constitute pollution of the marine environment and that states are under an obligation to take all necessary measures to control pollution from GHG emissions. The tribunal also found that states are under special obligations to protect and preserve the marine environment in relation to climate change impacts. This authoritative legal opinion will fortify international climate commitments and compel stronger actions to mitigate climate harm.  

James A Goldston, Executive Director of the Justice Initiative, said: “ITLOS’s opinion reinforces the critical role of international law in mitigating the impacts of climate change on the marine environment, and it compels states to take proactive and cooperative measures to protect marine ecosystems.”

The Open Society Justice Initiative supported influential submissions of the Republic of Mozambique and Republic of Sierra Leone, working with Professor Phoebe Okowa, Professor Charles Jalloh, Professor Dire Tladi, and Foley Hoag LLP partners Christina Hioureas and Andrew Loewenstein, as well as climate scientists from the Union of Concerned Scientists.  

ITLOS’s advisory opinion closely reflects the submissions made by Sierra Leone and Mozambique on a range of issues pivotal to ITLOS’s opinion: 

• the classification of anthropogenic GHG emissions as a form of marine pollution,  
• the application of the precautionary principal to state obligations to regulate marine pollution from anthropogenic GHGs,  
• the stringent standards of due diligence to be applied by States in the context of climate change,  
• the application of the principle of common but differentiated responsibilities to distinguish obligations of states based on their contribution to the harm and capacity to address it, and  
• the duty of States to cooperate to effectively and in good faith.  

The Open Society Justice Initiative has also supported and helped shape submissions in similar legal initiatives to obtain advisory opinions on state obligations with respect to climate change from the Inter-American Court of Human Rights and the International Court of Justice.