On 12 December 2022 ITLOS received a Request for an Advisory Opinion from the Commission of Small Island States on Climate Change and International Law (COSIS), pursuant to Article 2(2) of the COSIS Agreement and Article 21 of the ITLOS Statute and Article 138 of the Rules of the Tribunal (see previous reporting on COSIS; and on advisory opinion jurisdiction, the SRFC Advisory Opinion).
By unanimous decision of the COSIS Members at the Third Meeting of COSIS on 26 August 2022 (comprising of Antigua and Barbuda; Tuvalu; and the Republic of Palau. Note: Niue, Republic of Vanuatu and Saint Lucia all acceded to the COSIS Agreement after 26 August 2022), COSIS decided to refer the following question to ITLOS for an Advisory Opinion (registered as ITLOS Case No. 31):
What are the specific obligations of State Parties to the United Nations Convention on the Law of the Sea (the “UNCLOS”), including under Part XII:
(a) to prevent, reduce and control pollution of the marine environment in relation to the deleterious effects that result or are likely to result from climate change, including through ocean warming and sea level rise, and ocean acidification, which are caused by anthropogenic greenhouse gas emissions into the atmosphere?
(b) to protect and preserve the marine environment in relation to climate change impacts, including ocean warming and sea level rise, and ocean acidification?Request for an Advisory Opinion of 12 December 2022, p. 1
Note, the COSIS Members decision is based on an approval of Recommendation CLE. 1/2022/Rec of the Committee of Legal Experts (18 June 2022) which was assisted by the work of the Sub-Committee on Protection and Preservation of the Marine Environment. Consistent with the mandates of the Commission (Art 1(3), COSIS Agreement), the Sub-Committee on Sea-Level Rise, Sub-Committee on Human Rights, and the Sub-Committee on Loss and Damages continue to operate and may “propose further activities that the Commission may undertake to contribute to the definition, implementation, and progressive development of rules and principles of international law concerning climate change” (Third Meeting of COSIS, Decision 3). Without prejudice to if it will be utilised, note in this respect Article 2(2) of the COSIS Agreement authorises the Commission to request advisory opinions (plural) from ITLOS.
As previously reported COSIS supported the Vanuatu ICJ Advisory Opinion Initiative, and Decision 2 of the Third Meeting of COSIS provides “that the Committee of Legal Experts should assist members of the Commission in making submissions to the ICJ as appropriate”.
For more information see the ITLOS Press Release.