International Tribunal for the Law of the Sea

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“Stringent Due Diligence”, Duties of Cooperation and Assistance to Climate Vulnerable States, and the Selective Integration of External Rules in the ITLOS Advisory Opinion on Climate Change and International Law

The International Tribunal on the Law of the Sea's  (ITLOS) 153-page 21 May 2024 Advisory Opinion on Climate Change and International Law is the first decision issued in the trifecta of advisory proceedings on climate change pending in international courts (the other two being the International Court of Justice and the Inter-American Court of Human Rights).  ITLOS declared at the outset that its Advisory Opinion would "confine itself to primary obligations" (Advisory Opinion, para. 148), and not the legal consequences arising from any breach of such primary obligations, such that the Tribunal would only refer to responsibility and liability in the Advisory Opinion only "to the extent necessary to clarify the scope and nature of primary obligations" (Advisory Opinion, para. 148, last sentence).  To recall, the Commission of Small Island States (COSIS) to posed the following two questions to ITLOS for its advisory opinion: "What are the specific obligations of State Parties to the United Nations Convention on the Law of the Sea (UNCLOS), including under Part XII: (a) to prevent, reduce…

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The ITLOS Advisory Opinion on Climate Change: Selected Issues of Treaty Interpretation

Introduction This post analyses selected treaty interpretation issues in the ITLOS Advisory Opinion on Climate Change, delivered on 21 May 2024. The post does not seek to summarise nor address all issues raised by the Advisory Opinion. Instead, the aim is to analyse certain issues of treaty interpretation that arose at numerous points in the…

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BBNJ Treaty and the ITLOS Advisory Jurisdiction

The Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction, convened in New York, adopted the Agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (“BBNJ Agreement” or “Agreement”) by consensus on 19 June 2023. Currently,…

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Small states, legal statecraft and opening submissions in the ITLOS climate change advisory proceedings

On Monday 11 September 2023 the International Tribunal for the Law of the Sea began its historic hearing of oral statements in Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law. The impassioned opening submissions given by the Prime Ministers of Antigua and Barbuda and Tuvalu, the founding…

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EJIL:The Podcast! Episode 18 – “Be Careful What You Ask For”

In this episode Dapo Akande, Marko Milanovic and Philippa Webb are joined by Philippe Sands (University College London and 11KBW) and Margaretha Wewerinke-Singh (University of Amsterdam and University of the South Pacific). The focus is on the advisory function of international courts and tribunals. In December 2022, the Commission of Small Island States on Climate Change and International…

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