ITLOS advisory opinion on climate obligations
This paper is authored by Nishant Sirohi, ORF, New Delhi.
The 2024 advisory opinion issued by the International Tribunal for the Law of the Sea (ITLOS), recognising greenhouse gas (GHG) emissions as marine pollution, marks a pivotal intersection in maritime and climate governance. The opinion, while non-binding, establishes legal obligations for states to mitigate climate-induced marine impacts, including acidification, warming, and sea-level rise. It emphasises due diligence, transboundary impact assessments, and adherence to the principle of ‘common but differentiated responsibilities.’ The opinion holds important implications for developing states, presenting both challenges and opportunities to align sustainability goals with climate commitments. By bridging the UN Convention on the Law of the Sea and broader climate frameworks like the Paris Agreement, ITLOS advances international legal norms and sets a precedent for future climate litigation. This brief analyses these implications, focusing on India and other Global South nations.
On May 21, 2024, the ITLOS issued a landmark advisory opinion on states’ obligations to mitigate climate change—particularly by reducing GHG emissions, under the United Nations Convention on the Law of the Sea, 1982 (UNCLOS). The unanimous opinion interprets UNCLOS as establishing distinct legal obligations for member states to preserve the marine environment, prevent ocean acidification, and address marine pollution caused by the climate crisis, independent of other international laws.
Advisory opinions, though not legally binding, hold legal and political weight as authoritative statements of the law from international tribunals. ITLOS’s findings are likely to influence upcoming climate change cases before the International Court of Justice (ICJ) and the Inter-American Court of Human Rights (IACtHR) and could impact the trajectory of domestic climate litigation globally.
The surge in climate litigation across domestic and international forums reflects the growing inadequacy of current climate action. Meanwhile, multilateral frameworks like the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement have failed to meet their objectives, with global temperature projections indicating a rise to 3.1°C—far exceeding the threshold of 1.5°C necessary to avert catastrophic climate impacts. In this context, the ITLOS advisory opinion is poised to serve as a critical bargaining tool for developing countries, particularly small island states, to demand stronger action and more ambitious emissions reduction commitments from developed states in climate negotiations.
India’s position on the ITLOS opinion may have been a missed strategic opportunity to advance its more nuanced stance on international climate change law. It is a view that explicitly balances the urgency of reducing GHG emissions with the need for development, and outlines the specific responsibilities of developed states in facilitating technology transfer and establishing effective loss and damage mechanisms to assist developing States in transitioning to sustainable energy sources.
This brief examines the advisory opinion. It addresses the contentions raised by states and international organisations, and analyses ITLOS's key findings on jurisdiction and merits. The brief explores the broader impacts of the opinion, with a focus on its implications for India and other developing States.
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This paper is authored by Nishant Sirohi, ORF, New Delhi.
