The ITLOS Advisory Opinion on Climate Change

On 12 December 2022, the Commission of Small Island States (COSIS) submitted a request for an advisory opinion to the International Tribunal for the Law of the Sea (ITLOS or “Tribunal”).

On 21 May 2024, the Tribunal delivered its decision. The advisory opinion raised some significant questions about the concept of common but differentiated responsibilities (CBDR) and technical assistance obligations under the United Nations Convention on the Law of the Sea UNCLOS. It is noteworthy that the ITLOS has succeeded in establishing a complex interconnection between two distinct yet interrelated legal domains: the law of the sea and climate change law. In this way, the Tribunal was able to make reference to the concept of CBDR-RC and fully integrate it into the United Nations Convention on the Law of the Sea (UNCLOS), thereby recognising its legal status as a principle.

Although this blog post views the integration of the CBDR-RC concept as a constructive step forward, it also raises the possibility that the incorporation of the CBDR-RC principle into the legal framework of the law of the sea may have, inadvertently, initiated a complex and multifaceted debate concerning the question of technical assistance, as set forth in Articles 202 and 203 UNCLOS.

UNCLOS, the Concept of CBDR and Its Relevance in the Advisory Opinion

The CBDR concept distinguishes between the different degrees of responsibility of individual States on the basis of a number of factors, including historicism, vulnerability, and capability [for a more detailed account of the concept, cf. Fajardo et al.]. Consequently, the concept of CBDR gives rise to a differentiation in the obligations assumed by States. While not a unique concept to international environmental law, a differentiation of this nature was first established in a generally accepted definition by the Rio Declaration [cf. Principle 7] and subsequently by the UN Framework Convention on Climate Change (UNFCCC) [cf. Articles 3(1) and 4(1)]. The CBDR concept was similarly incorporated into the subsequent agreements of the UNFCCC, evident in Articles 3 and 10 Kyoto Protocol and Articles 2, 4(3) and 4(19) Paris Agreement.

In the context of climate change, the concept of CBDR assumes even greater significance as it establishes a global partnership, based on an obligation to cooperate, in which States are to assume different obligations in accordance with their respective circumstances. These circumstances are determined by a range of factors, including the state of development, historical contribution to climate change, current and future greenhouse gas emissions, and, arguably most critically of all, access to technology and financial resources [Hey and Paulini, n 4].

The UNCLOS stands as the earliest universal instrument addressing the protection of the marine environment. However, it does not contain any explicit reference to the concept of CBDR. A closer look at the International Maritime Organisation (IMO), which is closely related to the UNCLOS, reveals a markedly different approach. In fact, the IMO operates on the basis of the principle ‘no more favourable treatment’, which requires that no differential treatment be accorded to States on the basis of the factors enumerated above, thereby diametrically opposing the very concept of CBDR [cf. Chen]. Nonetheless, within its fifth preambular paragraph, the UNCLOS explicitly recognises its role in ‘the realization of a just and equitable international economic order which takes into account the interests and needs of mankind as a whole and, in particular, the special interests and needs of developing countries’. This preferential treatment of developing states is further reflected in Part XII, which may be interpreted as an indication that the drafters of the UNCLOS were drawing upon the concept of CBDR.

It is therefore unsurprising that the ITLOS included the concept of CBDR in its advisory opinion on no fewer than eight occasions. However, the Tribunal not only made a mere reference to this concept but also went beyond this by stating that:

‘The Tribunal considers that while the obligation under article 194, paragraph 1, of the Convention does not refer to the principle of common but differentiated responsibilities and respective capabilities as such, it contains some elements common to this principle’ (para. 229).

‘The Tribunal notes that articles 202 and 203 of the Convention do not refer to the principle of common but differentiated responsibilities and respective capabilities. However, the obligation of assistance to developing States under these articles has some elements underlying this principle in that States with lesser capabilities need assistance from States that are better placed in order to meet their environmental responsibilities’ (para. 326).

The common elements are taken from the references under Article 194 to “the best practicable means at their disposal” and “in accordance with their capabilities,” adding a much-needed flexibility layer to what some states with limited means and capabilities can do in the context of marine pollution from anthropogenic GHG emissions. Upon examining the criteria established by Article 1(4) of the UNCLOS, the ITLOS concluded that anthropogenic greenhouse gas (GHG) emissions would be considered marine pollution. This does not come as a surprise, as most state parties who had manifested themselves in the written statements did concur that GHG emissions would qualify as pollution within the broad definition used by the UNCLOS. The discussion has been addressed in a previous post on this blog.

Thus, the ITLOS made the critical finding that the CBDR-RC concept underlies Part XII of the UNCLOS regarding both, the obligation to take necessary measures to prevent, reduce, and control marine pollution, as well as the scientific and technical assistance to developing States and their preferential treatment. The latter aspect was a significant point of contention among the States that participated in the advisory proceedings, as highlighted by the ITLOS. Four arguments were put forth in this regard: (1) that the obligations of technical assistance in the UNCLOS would be a means of implementing CBDR in the Law of the Sea; (2) that CBDR, albeit not mentioned in the UNCLOS, should be considered as mutually supportive, (3) that this principle should not be used as a means of evading the responsibility of states to counter marine pollution and; (4) that the obligations of assistance and priority to developing states should only be interpreted within the context of the UNCLOS [para. 325].

In light of the conflicting perspectives presented, the Tribunal provided a clear rationale for its findings relating to the CBDR concept by referencing the fifth preambular paragraph of the UNCLOS and acknowledging the relevance of the UNFCCC and the Paris Agreement in this context, explicitly recognising and addressing the special needs and circumstances of developing countries [paras. 327-9]. The Tribunal acknowledged that providing scientific, technical, educational, and other forms of assistance to developing States that are particularly vulnerable to the impacts of climate change could help to address an inequitable situation, whereby those who contribute the least to GHG emissions are disproportionately affected by this pollution [para. 327]. The ITLOS noted that the extensive range of assistance mechanisms set out in UNCLOS can enable developing States to tackle marine pollution from GHG emissions. These mechanisms are complemented by those outlined in the UNFCCC and the Paris Agreement [para. 329].

What’s Next for Differentiation in the Context of UNCLOS?

Despite great advancements provided by the ITLOS advisory opinion in understanding the relationship between climate and the ocean under UNCLOS, some key aspects of the new conceptualizations of the CBDR concept need further clarification. One significant point for consideration in prospective analyses is whether the distinction between developed and developing States has become an anachronism in light of the emergence of a complex global economic order. However, it is critical to exercise caution when considering such approaches to CBDR-RC, as they frequently represent an attempt to undermine this concept [cf. Wewerinke-Singh].

It is therefore proposed that the state of development and a country’s vulnerability to the deleterious effects of climate change be recognised as interdependent determinants of the scope of the respective obligations to mitigate against climate change that States have to comply with. In this regard, the ITLOS held that:

‘[S]cientific, technical, educational and other assistance to developing States that are particularly vulnerable to the adverse effects of climate change is a means of addressing an inequitable situation. Although they contribute less to anthropogenic GHG emissions, such States suffer more severely from their effects on the marine environment [para. 327]’.

This approach appears to be reinforced by the findings of the IPCC Report on Oceans and the Cryosphere. However, it raises another question: which states should be given priority, those most vulnerable or those least developed? In other words, do these two factors, namely development and vulnerability, operate in a hierarchical manner or do they exert a mutually reinforcing effect? These considerations will ultimately inform the prioritisation of States in terms of scientific, technical, educational, and most critically, financial assistance, and thus hold significant implications.

Nevertheless, a number of questions remain regarding the operationalisation of vulnerability as a determinant factor and the categorisation of its associated degrees of harm. In lieu of focusing on vulnerability, which is highly dependent on geographically specific factors, it may be beneficial to consider sustainability standards. Without such standards, there is a risk of a lack of a long-term sustainability perspective, which may result in reactive rather than proactive solutions. Yet, different outcomes may emerge when focusing solely on sustainability standards and sustainable development. For example, in this context, a low-lying coastal state classified among the least developing countries might receive funding priority over a small island developing State that is not a least developing country, based on both economic and environmental vulnerability. How such differentiation would be perceived by affected states remains uncertain and could lead to dissatisfaction.

This underscores the potential value of a more holistic analysis or the establishment of clearer criteria to avoid contentious outcomes. A holistic approach that integrates sustainability standards, sustainable development, the state of development, and vulnerability might be the most effective. Clear, transparent criteria and mechanisms would be essential to balance these considerations and ensure fair, needs-based, and sustainable outcomes. For instance, a weighting system could prioritise extreme vulnerability while still promoting sustainable practices and alignment with global goals. In this regard the ITLOS observed that:

‘The main recipients of the assistance under article 202 of the Convention are developing States. In the context of marine pollution from anthropogenic GHG emissions, they should be those developing and least developed States that are most directly and severely affected by the effects of such emissions on the marine environment’ [para. 330, emphasis added].

To address the question of which States should be prioritised, the ITLOS sought to establish a set of guiding principles but refrained from thoroughly examining the issue’s complexities. In doing so, the Tribunal may have implicitly acknowledged a potential right to preferential treatment for developing States, particularly in the allocation of funds and technical assistance under Part XII, yet failed to outline the criteria for determining who should receive such preferential treatment.

Conclusion

Has the ITLOS advisory opinion inadvertently opened a Pandora’s box regarding technical assistance within the UNCLOS framework? We would argue that it has. Differentiation among developing states, particularly in the context of funding opportunities, remains a contentious and complex issue in international law. This post aimed to explore the intricacies of applying CBDR to this specific scenario of climate change, with the goal of fostering debate on the critical issue of technical assistance for developing states under UNCLOS. While the ITLOS referred to the UNFCCC requirements in its decision, the authors contend that these references may be overly broad and insufficiently detailed, potentially paving the way for conflicting interpretations regarding technical assistance. This ambiguity highlights the need for further discussion, especially for developing states actively seeking support in their fight against GHG emissions. This analysis points to an opportunity arising from the Tribunal’s Advisory Opinion to encourage dialogue on more nuanced differentiation. This should address not only obligations tied to environmental standards and procedural requirements for marine pollution but also the provision of technical assistance to states most acutely affected by climate change.