The ITLOS Advisory Opinion: Human Rights as a Withered Branch of International Law?

On 21 May 2024, at the request of the Commission of Small Island States on Climate Change and International Law (COSIS), the International Tribunal for the Law of the Sea (ITLOS or Tribunal) delivered its long-awaited advisory opinion. While some scholars have welcomed the advisory opinion for its ‘contextual and systemic approach to interpretation’ [cf. Paine], others have been more cautious, pointing to the Tribunal’s ‘interpretive ambiguity and its selective (and non-transparent) integration of external rules into the interpretation of UNCLOS provisions’ [cf. Desierto].

The ITLOS advisory opinion, while undeniably a significant addition to the emerging corpus of international law pertaining to climate change, represents a missed opportunity to establish a more holistic approach to the intersection of human rights, climate change, and the law of the sea. It runs to 153 pages, refers to numerous international instruments, but mentions human rights only once, in a brief and cursory way, by stating that [at p. 35, para. 66]:

‘In this respect, the Tribunal notes that climate change represents an existential threat and raises human rights concerns.’

Therefore, this post examines the relationship between human rights, the law of the sea, and the ITLOS and outlines a potential course of action for how the Tribunal may have more effectively incorporated international human rights law into its advisory opinion.

Human Rights, the Law of the Sea, and the ITLOS

Although the law of the sea is traditionally conceived as a branch of international law that is highly State-centric, human rights were not entirely absent from discussions at the Third United Nations Conference on the Law of the Sea. In this respect, it is worth noting that during the negotiations, the UNESCO representative identified the necessity of incorporating human rights considerations into the law of the sea, emphasising that ‘human rights […] must be taken into account by the law of the sea if it was to be effective’ [at p. 323, para. 6].

It is therefore not surprising that human rights have emerged as a significant aspect in various areas of the law of the sea, particularly when considering law enforcement measures taken in the context of the arrest and detention of ships and their crews [Petrig, at pp. 310-11]. This progressive development was initiated by the ITLOS, which, through its jurisprudence, has established a framework for human rights to be taken into account when deciding upon law of the sea disputes. It is of particular significance to direct attention to the case of the M/V “Saiga” (No. 2). In this instance, the ITLOS delivered a judgment in which it was for the first time held [at p. 62, para. 155] that:

‘Although the Convention does not contain express provisions on the use of force in the arrest of ships, international law, which is applicable by virtue of article 293 of the Convention, requires that the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea, as they do in other areas of international law.’

References to the concept of ‘considerations of humanity’ have also been observed in prompt release [here and here] and provisional measures [here] cases, thereby constituting a line of jurisprudence that has been consistently followed by ITLOS. Despite its considerable potential, this concept has been largely overlooked to date. Its impact on judicial outcomes appears to be relatively limited, suggesting that it serves a primarily symbolic function in establishing a link between the law of the sea and international human rights law [Petrig and Bo, at p. 405].

Yet, it can be reasonably argued that the concept of ‘considerations of humanity’ in conjunction with the principle of systemic integration could prove to be a highly practical application in the judicial process.

Application of the Principle of Systemic Integration

The principle of systemic integration is set out in Article 31(3)(c) Vienna Convention on the Law of Treaties (VCLT), according to which the international legal system is regarded as a whole and forms an integral component of every treaty concluded under international law [Dörr and Schmalenbach, at p. 603]. This principle posits that a law-applying body should inquire into the broader normative environment of its constitutive instrument and ‘must always interpret and apply that instrument in the context of its relationship to its normative environment – that is to say “other” international law’ [ILC, at p. 86, para. 423]. It follows that the principle of systemic integration is not solely an interpretative device; rather, it also pertains to the determination of the applicable law. Consequently, a law-applying body is required to fill in any existing gaps by expanding the scope of the applicable law in consideration of the normative environment within which it operates.

It can be observed that the two aforementioned aspects of the principle of systemic integration, namely the interpretative device and the expansion of the applicable law, have been incorporated into Article 293(1) UNCLOS. Consequently, the latter can be regarded as the primary norm within the Convention, which allows for the systemic integration of human rights, when interpreting and applying the latter. However, it is noteworthy that the scope of systemic integration within the UNCLOS framework appears to be more comprehensive than that of the general principle as outlined in Article 31(3)(c) VCLT, since the latter presupposes that the external rules in question are applicable ‘in the relations between the parties’ [Gardiner, at pp. 313-19].

In its advisory opinion, the ITLOS has sought to operationalise the principle of systemic integration, as provided for in Article 293(1) UNCLOS, by elucidating that ‘the provisions of the Convention and external rules should, to the extent possible, be interpreted consistently’ [at p. 52, para. 136]. From the outset, it becomes evident that the Tribunal employed the principle of systemic integration as an interpretative device yet did not utilise it to expand the scope of the applicable law. In this manner, the ITLOS circumvented the necessity of addressing the question of whether Article 293(1) UNCLOS can be expansively construed to encompass international human rights law. This observation was also made by Judge Kittichaisaree in his separate opinion, where he noted that:

‘In this Advisory Opinion, the Tribunal merely states briefly, in paragraph 66, that it “notes that climate change represents an existential threat and raises human rights concerns.” In doing so, the Tribunal sidesteps the need to construe article 293 (Applicable law) of the Convention to cover human rights issues in order to answer the questions posed by the Request’ [at p. 9, para. 28].

It should be acknowledged that the view that the advisory opinion lacked sufficient consideration of human rights issues was not limited to Judge Kittichaisaree. In addition, Judges Pawlak [at pp. 2-3, para. 6] and Caffi [at pp. 1-2, paras. 1-5] concurred with this assessment.

Thus, it can be said that the ITLOS demonstrated a limited application of the principle of systemic integration. The question that remains unanswered is whether the principle of systemic integration, if fully applied, would have resulted in the incorporation of international human rights law in the ITLOS advisory opinion. In order to ascertain the answer to this question, it is necessary to determine whether there exists an interconnection between human rights, climate change and the law of the sea, or the absence thereof.

Interconnection between Human Rights, Climate Change, and the Law of the Sea

There is a considerable corpus of evidence attesting to the interconnection between human rights, climate change, and the law of the sea. This evidence is derived from a variety of sources, including international instruments, State practice, judicial pronouncements, and the practice of international organisations.

In its own terms, UNCLOS defines marine pollution as the ‘introduction by man, directly or indirectly, of substances or energy into the marine environment, including estuaries, which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities’ [cf. Article 1(1)(4)]. Consequently, the Convention identifies a nexus between marine pollution and human rights. This may be regarded as an indication that Part XII, dealing with the protection and preservation of the marine environment, should be interpreted as implicitly including considerations of the human health. The aforementioned understanding finds further corroboration in Article 235(2) UNCLOS, wherein it is explicitly affirmed that natural persons shall be entitled to ‘prompt and adequate compensation or other forms of relief in respect of damage caused by pollution of the marine environment’. In consideration of the conclusion that anthropogenic greenhouse gas emissions fall within the definition of marine pollution under the Convention [at p. 66, para. 179], the ITLOS seems to have established a link between human rights and the law of the sea with regard to climate change, without however drawing the necessary conclusions.

Furthermore, the Agreement under the UNCLOS on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction (BBNJ Agreement), which is not yet in force, recognises ‘the need to address, in a coherent and cooperative manner climate change impacts on marine ecosystems, such as warming and ocean deoxygenation, as well as ocean acidification, pollution, including plastic pollution, and unsustainable use’ [at preambular para. 3]. It can therefore be considered to establish a connection between the law of the sea and climate change. Beyond this connection, the BBNJ Agreement makes both explicit and implicit references to human rights. It refers to the obligation to respect, promote and consider the ‘rights of Indigenous Peoples or of, as appropriate, local communities’ [cf. Article 5]. Furthermore, the Agreement requires the conducting of environmental impact assessments and the monitoring of economic, social, cultural, and human health impacts of any activities [cf. Articles 30(1)(b) and 39]. Although the ITLOS observed ‘that the BBNJ Agreement contains, inter alia, detailed provisions on environmental impact assessments relation their thresholds and factors’ [at. p. 123, para. 366], it did not address the human rights implications of these provisions.

In this context, it is noteworthy that the Paris Agreement explicitly acknowledges States ‘should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development’ [at preambular para. 11].

During the proceedings held before the ITLOS, a number of States, including Congo [at pp. 22-5, 27-9], Italy [at p. 8], Mauritius [at p. 18], Chile [at pp. 24-5], Nauru [at pp. 10, 15, 16-7], and Micronesia [at pp. 29-32], advanced the view that there exists a correlation between human rights, climate change, and the law of the sea and that, consequently, the Tribunal should take into account international human rights law.

In recent times, two regional human rights courts have handed down decisions that can be considered to be of great significance in that they have established a link between human rights and climate change, thus providing a landmark interpretation of the interconnection between these two areas of legal concern.

On 22 March 2024, the Inter-American Court of Human Rights (IACtHR) rendered a decision in a case concerning the right to a healthy environment. In addressing the right to a healthy environment, the Court has for the first time included pollution in the context of air, water, and soil [at para. 119]. Furthermore, the IACtHR has underscored the significance of its pronouncements, which should be duly considered by States in the implementation of their obligation to mitigate against climate change [at paras. 70, 161-2]. The IACtHR did not halt its inquiry here, but rather proceeded to recognise the right to a healthy environment as a peremptory norm of international law [at para. 43], a recognition that has significant implications for the protection of human rights in the context of climate change.

On 9 April 2024, the European Court of Human Rights (ECtHR) delivered its first ruling in a case concerning climate change. In this ruling, the ECtHR established a link between the various adverse effects of climate change and the risks of such effects on the enjoyment of human rights at present and in the future [at para. 436]. On the basis of the established causal link between climate change and the enjoyment of human rights, the ECtHR held that a contracting State’s primary duty was to adopt and implement effective regulations and measures capable of mitigating the current and potentially irreversible future impacts of climate change [at para. 545].

It is also pertinent to highlight the significance of the UN General Assembly’s resolution adopted on 28 July 2022. This resolution recognises the right to a clean, healthy and sustainable environment and acknowledges that this right is interrelated with a number of other human rights and existing international law. When considered in the context of the Special Rapporteur’s Report on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, which makes explicit reference to marine pollution [at paras. 31, 36], this resolution becomes apparent as a further example of the interconnected nature of the law of the sea and the right to a healthy environment. This understanding was corroborated by the UN Special Rapporteurs on Human Rights and Climate Change, Toxics and Human Rights, as well as Human Rights and the Environment, who expressed the view that [at para. 6(a)]:

‘UNCLOS should be interpreted through an approach which systemically integrates international human rights and international environmental law. This approach is required by the plain text of UNCLOS and by the Vienna Convention on the Law of Treaties.’

Moreover, the International Law Commission (ILC) pointed out in its 2021 Draft Guidelines on the protection of the atmosphere that:

‘The rules of international law relating to the protection of the atmosphere and other relevant rules of international law, including, inter alia, the rules […] of the law of the sea and of international human rights law, should, to the extent possible, be identified, interpreted and applied in order to give rise to a single set of compatible obligations, in line with the principles of harmonization and systemic integration’ [cf. Guideline 9(1)].

The aforementioned evidence illustrates the integral role that international human rights law plays within the developing body of international law concerning climate change. Consequently, when considering State obligations in relation to climate change, it is imperative to take into account international human rights law, particularly in light of the principle of systemic integration.

Conclusion

The ITLOS failed to address the remaining deficiencies in the intricate web of international law that defines the legal landscape of climate change. The Tribunal’s reticence to engage with international human rights law may be attributed to its status as a specialised tribunal, with a constitutive instrument entrusting it with the interpretation and application of UNCLOS. However, as previously demonstrated, the law of the sea cannot be considered in isolation; rather, it must be viewed within the context of its broader normative environment. Consequently, the ITLOS should have sought to elucidate the human rights implications of the legal questions put to it by invoking the concept of ‘considerations of humanity’ in conjunction with the principle of systemic integration. The ITLOS’s failure to engage with international human rights law does not necessarily prevent fragmentation. It is possible that the opposite of the truth is in fact the case, with the ITLOS increasing the likelihood of fragmentation. As Alain Pellet has correctly observed [at pp. 14-5]:

‘And while there is nothing to prevent jurists from specializing in a particular chapter of international law, they should be careful to avoid cutting the branch from the tree, for it would wither.’