Distinguished Visitor Lecture: Climate Change before the International Tribunal for the Law of the Sea (ITLOS) and the International Court of Justice (ICJ)

On 20 February 2024, APCEL hosted a lecture by Professor Ellen Hey, who is Professor of Public International Law at the Erasmus School of Law of Erasmus University Rotterdam. Professor Hey is Visiting Professor at NUS Law in February 2024, and is teaching a course on “Sustainable Development and International Law”.

Professor Hey spoke about the expected advisory opinions from the International Tribunal of the Law of the SEA (ITLOS) and the International Court of Justice (ICJ).

Requests for Advisory Opinions

ITLOS and the ICJ have respectively received requests for advisory opinions from the Commission of Small Island States on Climate Change and International Law (COSIS) and via a United Nations General Assembly resolution, at the initiative of Vanuatu: –

• The request to ITLOS seeks ITLOS’ opinion on the obligations of states: –
  • To prevent, control and reduce marine pollution; and
  • To protect and preserve the marine environment under the United Nations Convention on the Law of the Sea (UNCLOS).
• The request to the ICJ seeks the ICJ’s opinions – having regard to various areas of international law and international agreements – on:
  • The obligations of States under international law to ensure protection of the climate system and other parts of the environment from greenhouse gas emissions for states and for future and present generations; and
  • The legal consequences of states who have caused significant harm to climate system and other parts of the environment, with respect to states, in particular small island developing States, and peoples and individuals of present and future generations.

Professor Hey explained that Pacific Island States are using these requests for advisory opinions to obtain the outcomes which they did not manage to obtain through climate change negotiations at the Conference of Parties (COP), in the areas of climate change mitigation and financial resources. She offered her views on the requests and the expected advisory opinions.

Request to ITLOS

COSIS is in essence arguing that what states have agreed within the framework of the climate change regime is insufficient to meet the standard set by UNCLOS, as states have not acted with due diligence as required by UNCLOS to protect the marine environment and prevent pollution under Articles 192 and 194 of UNCLOS.

An interesting procedural aspect is that it may be argued that ITLOS does not have the competence to issue advisory opinions, which is a competence granted only to the Seabed Disputes Chamber under Article 191 of UNCLOS. However, (1) under Article 21 of the ITLOS Statute, ITLOS has the jurisdiction on all matters specifically provided for in any other agreement which confers jurisdiction on ITLOS; and (2) under article 138 of the Rules of the Tribunal, ITLOS may give an advisory opinion on a legal question if an international agreement related to UNCLOS specifically provides for the submission to ITLOS of a request for such an opinion. COSIS was established for the purposes of submitting a request to ITLOS, by way of an agreement.

ITLOS is expected to deliver its advisory opinion in late spring or early summer of 2024.

Request to the ICJ

This request is interesting because it prompts the ICJ to consider the obligations of states towards future generations, as opposed to only towards other states, as well as the inter-relationship between different bodies of international law, including human rights law, climate change law, UNCLOS, environmental law, and general international law.

The establishment of the loss and damage fund at the most recent COP28 in 2023 was likely prompted by the backdrop of the advisory opinion requests, because following the request to the ICJ, the ICJ will consider the legal consequences and compensation obligations of states.

The ICJ hearings have not been scheduled yet, as written comments on states’ submissions are now due on 24 June 2024. There have been delays as states and international organisations have made requests to intervene in the advisory opinion procedure, which the ICJ has allowed.

Possible approaches for the advisory opinions

The ICJ, as well as ITLOS, could address issues of inequality between states by developing the law on state responsibility, especially the duties owed to a group of states or the international community. They could also contribute to the harmonisation, as opposed to fragmentation, of international law, in particular the UNCLOS and climate change regime. The advisory opinions would clarify the threshold for states to be considered acting with due diligence under UNCLOS in view of the climate change regime.

The advisory opinions will have regard to states vulnerable to climate change impacts and the human rights of vulnerable groups, for issues such as climate change adaptation. The ICJ in particular could and should engage in a causality analysis to determine the appropriate legal consequences.

Question & Answer session

The lecture was met with a lively Q&A session moderated by APCEL Director, Associate Professor Jolene Lin. There were many questions from the audience and hence answers on a broad range of issues from Professor Hey. Some points raised by Professor Hey were: –

• The requests to ITLOS and the ICJ are carefully drafted, and they offer the courts all possible paths to resolving the issues. There is no differentiation in the requests between aggressors and victims, while human rights are central to the requests.
• ITLOS and the ICJ are under pressure and are aware of the discussions surrounding the advisory opinions. In turn, the advisory opinions will likely add pressure on states to align with the advisory opinions at the next COP29 negotiations late this year.
• ITLOS and the ICJ are likely to confine their opinions to the obligation of states towards island states to avoid creating issues arising from a broad answer to the requests.

Well attended by academics and practitioners in international law and private practice, Professor Hey’s lecture was a great complement to APCEL’s past Workshop on Seeking an Advisory Opinion on Climate Change Obligations by APCEL and WYCJ on 31 January 2024. The audience learnt much about the background and what to expect of the advisory opinions through Professor Hey’s lecture.

Professor Hey gave a lecture on the requests to ITLOS and the ICJ for advisory opinions

Professor Hey’s lecture was well attended by academics and practitioners alike

The Q&A session following the lecture was a lively one with many questions

An audience member posing a question to Professor Hey

Professor Hey together with APCEL’s Director Jolene Lin (third from right), APCEL’s Deputy Director Tara Davenport (second from right) and researchers from APCEL