On May 21st in Hamburg, Germany, The International Tribunal for the Law of the Sea (ITLOS) delivered its long-awaited Advisory Opinion on climate change and international law. The Advisory Opinion addressed the critical question of whether greenhouse gas emissions meet the United Nations Convention on the Law of the Sea (UNCLOS) definition of “pollution of the marine environment”, which is hugely important because states have rigorous legal obligations under UNCLO to reduce and control anything that constitutes marine pollution. The tribunal determined that the answer to this threshold question is yes. 

Because greenhouse gas emissions are now classified as pollutants of the marine environment under UNCLOS, the Tribune found that states now have specific legal obligations that require them to take “all necessary measures” to prevent and reduce greenhouse gas emissions. The obligation placed on states as a result of the Tribunals Advisory Opinion is one of stringent due diligence, which experts say marks a turning point in climate governance, pushing it from the realm of voluntary commitment to that of concrete and enforceable legal obligations. 

For companies, the ITLOS Advisory Opinion has potentially significant implications. It points to a further evolving landscape surrounding regulatory requirements, and as such, companies operating in sectors with significant greenhouse gas emissions, including agriculture, gas, fashion, transportation, and manufacturing across industries, are likely to be most impacted by coming regulations in response to the Opinion. Further, the Opinion will likely add further impetus for domestic claimants to bring cases against both governments and companies, especially companies operating internationally. This necessitates a higher level of corporate responsibility necessary to align with international climate commitments. Companies can mitigate regulatory risks by adopting sustainable practices proactively. 

Additionally, the Advisory Opinion asserts a framework in which countries that have historically had the largest impact on the environment are responsible for taking greater responsibility and doing more to address greenhouse gas emissions than states with smaller footprints. With China, the US, and the EU nations amongst the top greenhouse gas emitters, the most stringent requirements in pollution mitigation will fall on these government bodies - subjecting a huge magnitude of companies based therein to heightened regulatory requirements. In reducing greenhouse gas emissions to comply with impending international and domestic standards, companies will need to spend time and money to invest in sustainable practices and technologies like renewable energy infrastructure, smart systems for energy management, sustainable suppliers, and electric vehicle fleets. 

Shannon Rowe, Law Clerk, BridgehouseLaw LLP, Charlotte, NC