Background and Theoretical Foundations: The identification of climate change as one of the most significant common concerns of humanity has brought about developments in the field of international law. Apart from the formulation of three major conventions in this area—namely the United Nations Framework Convention on Climate Change (1992), the Kyoto Protocol (1997), and the Paris Agreement (2015)—the issuance of advisory opinions by three judicial bodies, namely the International Tribunal for the Law of the Sea (ITLOS), the Inter-American Court of Human Rights, and the International Court of Justice (ICJ), has expanded the scope of states' legal obligations in addressing climate change. One of the key natural elements both affecting and affected by climate change is the seas and oceans. This paper aims to determine the role that the findings of the advisory opinions of ITLOS and the ICJ in the development of the law of the sea in combating climate change.
Methodology: This research employs a descriptive-analytical and comparative method. Accordingly, the study first describes, analyzes, and compares the findings of the two advisory opinions issued by ITLOS and the ICJ. Then, considering the silence of the United Nations Convention on the Law of the Sea (UNCLOS, 1982) on the issue of climate change, it explains the impacts of these two opinions on the normative development of the law of the sea. The data collection method is library-based, involving the study of judicial precedents, international documents, articles, and books to describe and analyze the research topic.
Findings: UNCLOS 1982, which established the current international legal order for the seas, was drafted before the harmful effects of climate change were recognized. Therefore, it contains no explicit provisions regarding states' obligations to combat climate change and its impacts. Meanwhile, on the one hand, oceans act as sinks for greenhouse gases and play a major role in mitigating climate change; on the other hand, maritime activities such as offshore oil and mineral exploration, the shipping industry, and others are sources of greenhouse gas emissions. Furthermore, if climate change intensifies and leads to effects such as ocean warming and acidification, sea-level rise, and so on, the marine environment and coastal communities will be at risk. Hence, it is necessary to identify states' obligations to mitigate climate change and enhance adaptation in maritime areas, as elaborated in the two aforementioned advisory opinions.
Conclusion: The climate-related advisory opinions of ITLOS and the ICJ, while contributing to greater integration of international law in addressing climate change, have helped develop the rules of the law of the sea through an evolutionary interpretation of the United Nations Convention on the Law of the Sea in two key areas: the protection of the marine environment and addressing sea-level rise. The recognition of greenhouse gas emissions as a form of marine pollution and the elaboration of the concept of due diligence are among the significant legal developments in the protection of the marine environment against climate change. Moreover, the affirmation of the stability of maritime baselines and the continuity of statehood for territories undergoing submersion provides greater assurance for states—especially small island states—thereby addressing one of the normative gaps in international law regarding responses to sea-level rise |
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