Introduction

On October 31, 2021, the leaders of the Government of Antigua and Barbuda and the Government of Tuvalu signed the “Agreement for the Establishment of the Commission of Small Island States on Climate Change and International Law” (the Agreement). As noted in the title itself, the Agreement creates a Commission of “small island states” tasked with promoting international law principles that hold states responsible for failing to protect the marine environment by contributing to climate change. Among the responsibilities outlined in the Agreement, the Commission would have the power to seek advisory opinions from the International Tribunal for the Law of the Sea (ITLOS, or the Tribunal) as part of its efforts to pursue its mandate.

Background

The Preamble to the Agreement reflects the growing concern about the threat of climate change to the livelihood—and perhaps even the very existence—of small island states. As noted therein, small island states are likely to be disproportionately affected by a warming climate, particularly any resulting increases in extreme weather events or rising sea levels. Island states have expressed particular concerns about the potential for rising sea levels to erode their coastlines, which can have significant implications for the safety, security, and general welfare of the populations of these islands.

As referenced by and alluded to in the Preamble, concerns about rising sea levels have prompted a number of island states to seek recognition of their maritime zones based on the baselines as they had submitted them pursuant to the 1982 Convention on the Law of the Sea (UNCLOS).Footnote ¹ In doing so, island states may be seeking to protect their existing maritime zones in the event their low-water lines may have shifted landward as a result of recent changes in sea levels. While various efforts have been made at the international level in this regard, no international court or tribunal has thus far issued any judgment or opinion addressing how shifting sea levels may impact existing internationally recognized baselines.

The Preamble also affirms the disproportionate burden borne by small island states from the emission of greenhouse gases, and further asserts that states have an obligation to “provide compensation for injuries arising from internationally wrongful acts.” Many island states are members of the Alliance of Small Island States (AOSIS), currently chaired by Antigua and Barbuda, which has advocated for compensation from large fossil fuel emitters for losses and damage incurred by extreme weather events attributed to climate change. As with the issue of baselines, the matter has not specifically been addressed in international jurisprudence.

Responsibilities of the Commission

The Agreement establishes the “Commission of Small Island States on Climate Change and International Law,” which has as its mandate the promotion of “rules and principles of international law concerning climate change.” These rules and principles include state responsibility for “internationally wrongful acts” that arise from breaching their obligations to protect and preserve the marine environment. The Commission's responsibilities further include directly assisting small island states with these efforts, including through the jurisprudence of international courts and tribunals. To aid in the fulfillment of its responsibilities, the Agreement grants the Commission international legal personality, which could allow it to benefit from certain rights and obligations under international law. International legal personality generally confers the ability to enter into treaties or to bring a matter before an international tribunal.

The establishment of the Commission appears to reflect an effort by some small island states to seek legal avenues for holding larger states accountable for their fossil fuel emissions. As stated during the announcement of the establishment of the Commission at the 2021 UN Climate Change Conference in Glasgow (COP26), the founding members feel that loss and damage to their states resulting from extreme weather events that may have been triggered by the overuse of fossil fuels has not been addressed seriously at United Nations Climate Conferences. The founders' goal, as indicated during the public announcement about the establishment of the Commission, is to shift the status quo “from one of vague voluntary commitments to legally binding obligations and compensation.” They specifically plan to do so through various legal options that may be available to them under UNCLOS, including seeking advisory opinions from ITLOS.Footnote ²

Requests for Advisory Opinions

Perhaps the most remarkable provision in the Agreement is its authorization for the Commission to request advisory opinions from ITLOS to address “any legal question within the scope of the 1982 United Nations Convention on the Law of the Sea.”Footnote ³ The Rules of the Tribunal outline the specific procedures for requesting and rendering advisory opinions.

Advisory opinions are generally not binding, but they may be relied on to inform the development of international law. Advisory opinions from the International Court of Justice (ICJ), in particular, can “carry great legal weight and moral authority,” and are “often an instrument of preventive diplomacy.”Footnote ⁴ The Special Chamber of ITLOS has granted significant weight to an ICJ advisory opinion as recently as January 2021 in a maritime boundary dispute case between Mauritius and the Maldives. In its ruling on a jurisdictional issue, the Special Chamber stated that determinations made by the ICJ in a prior advisory opinion have “legal effect” in that matter. Such a finding may effectively enshrine the ICJ's advisory determinations into judicial precedent.Footnote ⁵

Advisory opinions from ITLOS itself, however, have been rare—only two requests for advisory opinions are counted among the Tribunal's list of cases,Footnote ⁶ and only one other international agreement is known to have specifically authorized an entity to bring legal matters before ITLOS for an advisory opinion.Footnote ⁷ In the matter of the Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), the Tribunal rendered its first ever advisory opinion, which included a determination as to whether it does, in fact, have the capacity to render advisory opinions. Several states challenged the Tribunal's competence to provide an advisory opinion in the SRFC matter, since neither the ITLOS Statute nor UNCLOS, which established it, make any specific indication that ITLOS holds advisory jurisdiction.Footnote ⁸ However, the Tribunal unanimously determined that it did have jurisdiction to render advisory opinions, based on Article 21 of the ITLOS Statute granting it competency over “all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal.”Footnote ⁹ Since Article 21 separately mentions “disputes” as eligible for submission to the Tribunal, the Tribunal's view was that the use of the term “matters” must mean something more—including advisory opinions.Footnote ¹⁰

Having established its competency to render advisory opinions, the Tribunal appears poised to take future opportunities to assert this advisory jurisdiction. The establishment of the Commission, with its specific reference to requesting advisory opinions from the Tribunal in the Agreement, provides one example of how states may seek to derive an ostensible benefit from the Tribunal's determination in the SRFC matter. Whether the Tribunal receives an increased volume of requests for advisory opinions, including from the Commission of Small Island States, remains to be seen. However, by specifically enshrining the Commission's ability to seek advisory opinions from the Tribunal, the founders astutely noted an opportunity to address their concerns via international jurisprudence that was perhaps not quite so clearly available prior to the Tribunal's advisory opinion in the SRFC matter. It is, therefore, not inconceivable that the Commission may seek advisory opinions on the very matters of utmost concern to small island states, as laid out in the Preamble—including the protection of their baselines or legal matters related to potential compensation from large fossil fuel emitters for internationally wrongful acts.