Advisory Opinions On Climate Change: A View From Practice Presented By: Zachary Phillips Date: 8 March 2024 Setting the Scene - International law is developed primarily through the actions of States. - Is the manner of that development always coherent? - Advisory Opinions are opportunities for States to clarify their interpretations of international law. - These Advisory Opinions are all connected to Climate Change and the obligations of States to address climate change. - These topics are existentially important for SIDS. - It is therefore vital that SIDS explain their interpretation of international law, which in turn would contribute to the development of international law in this area. - To remain silent is to let the development be charted by the rest of the States. What are Advisory Opinions? - Advisory Proceedings • An advisory opinion is a non-binding interpretation of law. • Advisory opinions carry significant legal weight, despite not being "binding", by advancing the development of international law as authoritative declarations of the law. - • Not all international courts/tribunals have an advisory jurisdiction. • Normally not adversarial as no parties are involved. Contentious Proceedings • Binding on the parties involved. • Develops jurisprudence through setting a precedent. • Normally an adversarial process. The Three Advisory Opinions - The ITLOS AO was the first of the trilogy and the hearing started on the 11th of September 2023 and concluded 25th September 2023. - The ITLOS AO was requested by the Commission on Small Island States (COSIS) an organization comprised only of SIDS. - The question for consideration was: • 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? - The Inter American Court on Human Rights shall also be hearing an Advisory Opinion on a set of several questions that seek to clarify the scope of States' obligations both individually and collectively to respond to the climate emergency within the framework of human rights law. - There will be three sets of oral hearings in Barbados and Brazil in April and May. - The request was championed by Colombia and Chile. - The question itself was divided and asks about different rights: • States duty of prevention from derogations and to guarantee Human Rights • Obligation to preserve the right to life. • Rights to life, rights of children, • Obligations arising from consultation and judicial procedures. • rights of protection of environmental defend enders, indigenous and vulnerable communities in light of the climate crisis. • - The shared but different obligations of States in the face of the climate crisis The ICJ has also been requested to deliver an Advisory Opinion on the following question: • (a) What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations. • (b) What are the legal consequences under the obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:  (I) States, in particular SIDS, which are specially affected by or are particularly vulnerable to the adverse effects of climate change.  (II) Peoples individuals of the present and future generations affected by the adverse effects of climate change. Perspectives From The Process - ITLOS AO Perspectives and Takeaways • Antigua and Barbuda engaged in this process through COSIS. • Arguments made on behalf of your client, however, your clients are now sovereign States. - • Co-ordination • Politics of international law • Specific agendas IACTHR AO Perspectives and Takeaways • The question to the court is thirteen pages long. Inclusive of subheadings and sub questions for several highlighted human rights, principles of human rights law and a specific subheading dedicated to intersectionality of the obligations under each previous subheading. • In all there were 261 submissions, 9 were States and 10 were from States bodies. • The dynamics differed due to it being a regional human rights court, but is that a bad thing? • Also, the human rights regime has its own unique politics (e.g. right to a clean and healthy environment, the right to development etc.) - ICJ AO Perspectives and Takeaways • Antigua and Barbuda participated in the resolution core group. • In this process, Antigua Barbuda, is both represented by COSIS and making national submissions. • The entire gamut of international law is available for States to utilize in crafting their written submissions. • Therefore, the co-ordination amongst allies is on a far larger scale. • All this has been done and we are only at the first stage of the process.