In 2022, a number of small island states approached the International Tribunal for the Law of the Sea (ITLOS) requesting an advisory opinion. They asked ITLOS to rule on whether parties to the UN Convention on the Law of the Sea (UNCLOS) are required to prevent, reduce, and control pollution to the oceans caused by climate change and whether there is a duty to protect and preserve marine environments from climate change impacts. In a unanimous opinion, the ITLOS sided with the small island nations. Inside Climate News discusses the requirements laid out by the opinion writing:
“Those obligations include adopting laws and regulations aimed at reducing greenhouse gas emissions; preventing emissions under their jurisdiction or control from causing damage to other states; protecting fragile ecosystems and threatened species; cooperating with other governments and sharing scientific information; adopting measures aimed at controlling invasive species; and restoring degraded ecosystems.”
This ruling means that those countries who are party to the UNCLOS will be required to take concrete steps to reduce emissions in order to be in compliance with the Convention. However, there is some debate about how this may impact non-signatory countries. In international law there is a concept called “customary law.” Customary laws are established through general practices that become so widespread they become adopted as norms. When this happens, customary law may be applied globally, regardless of participation in a treaty or convention. Parts of UNCLOS are already considered customary law, leading some to argue that the ruling by ITLOS may be binding globally. The US is unlikely to recognize this ruling as customary law, setting the stage for global tensions around climate management. All of this manifests for companies in the form of political risks. For those operating in countries subject to UNCLOS governments may begin adopting more stringent targets which could impact business operations.
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