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At Historic ITLOS Hearings, States Stake Out Positions on Climate Duties and Ocean Protection

ITLOS hearings at Tribunal international of sea

Published September 28, 2023

By Joie Chowdhury, Senior Attorney of Climate Litigation and Accountability for CIEL’s Climate & Energy Program.

Court expected to issue its opinion by early 2024


After two weeks, public hearings at the International Tribunal for the Law of the Sea (ITLOS) in relation to the request for its Advisory Opinion on climate change and international law concluded on September 25, 2023. These legal proceedings, initiated by the Commission of Small Island States on Climate Change and International Law (COSIS), have the potential to advance ambitious climate action after decades of political inertia that have plagued international climate negotiations and domestic climate policies.

Photo credit: Sébastien Duyck

Advancing Ambitious Climate Action

In essence, the Tribunal has been asked to clarify (a) whether greenhouse gas emissions qualify as marine pollution, and if so, what are the obligations of State Parties to the United Nations Convention on the Law of the Sea (UNCLOS) to prevent, reduce and control such pollution under international law, and (b) the obligations of these countries to protect and preserve the marine environment from climate change impacts. 

The urgency of these questions cannot be overstated. At current levels of warming, climate change is already harming the marine environment and the human rights of communities around the world, in particular those living along coastlines. This historic advisory proceeding is the first time an international court will address the scope of State responsibility concerning  climate change and ocean protection. More than 50 states and organizations, including the Center for International Environmental Law, weighed in through written submissions and/or oral arguments.

A Matter of Survival

Prime Minister Kausea Natano of Tuvalu highlighted the high stakes of the case, emphasizing  that the very survival of some island nations is at risk: “If humankind does not act with urgency, some of our island nations will disappear under the sea within a generation. Protection of the marine environment is a matter of survival.” 

The ITLOS proceedings and advisory opinion will serve as essential references for similar climate advisory opinion proceedings before the Inter-American Court of Human Rights (IACtHR) and the International Court of Justice (ICJ). These three advisory proceedings provide an unprecedented opportunity for judicial bodies to clarify that, under international law, States must urgently phase out fossil fuels effectively and equitably, align climate mitigation ambition with science, adopt effective adaptation measures, and provide remedies for impacted communities.

Key Highlights from the Hearings: Charting Pivotal Legal Arguments 

The hearings unfolded in Hamburg, Germany, with COSIS pleading between September 11-12. COSIS established three bases for the upcoming opinion, focusing on the severity of climate impacts, scientific consensus, and compelling arguments regarding the existing legal obligations of States. These pleadings were then followed by other States and intergovernmental organizations intervening between September 13-25.

The Road Ahead 

Oceans play a crucial role in climate mitigation and adaptation. A strong, progressive advisory opinion from ITLOS would provide meaningful and unambiguous guidance to State Parties regarding their legal obligations under the law of the sea, understood in light of their duties under international human rights law and other relevant international law, to protect the oceans. Such an outcome would be a critical step to effectively safeguard marine ecosystems, address the climate crisis, and uphold  human rights. 

The hearings are crucially important in and of themselves, and also because they indicate how States may  argue in future international and regional climate cases, including the advisory opinion proceedings before the Inter-American Court of Human Rights and the International Court of Justice. Unlike what they do in closed-door negotiations, governments cannot hide what they say in open court. The airing of State positions thus provides an important foundation for accountability at the national level. Governments’ arguments before ITLOS often deviated from their claims of climate leadership, illuminating the need for nations to bridge the gap between their rhetoric and action on climate. Additionally,  smaller States facing the worst impacts of the climate crisis made powerful legal arguments before the Tribunal, underscoring the key role of international law in advancing climate justice. Such engagement from highly climate-vulnerable nations will be equally important in upcoming hearings before the IACtHR and the ICJ. 

The ITLOS advisory opinion is due in the next 6-8 months.

A recording of the hearings can be watched here and written submissions/verbatim records/other relevant documents can be found here. The joint submission of CIEL and Greenpeace International can be read here.


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