Special Extended Perspective: A First Reading of ITLOS’ Advisory Opinion on Climate Change: Implications for Australia, New Zealand, and the Pacific

On 21 May 2024, the International Tribunal for the Law of the Sea (ITLOS) issued a unanimous advisory opinion addressing states’ obligations under the UN Convention on the Law of the Sea (UNCLOS) concerning climate change impacts in the oceans, including climate-induced ocean warming, sea level rise, and ocean acidification. The central issue brought before ITLOS was whether States Parties to UNCLOS, among them Australia and New Zealand, have specific legal obligations to prevent, reduce, and control marine environmental pollution resulting from anthropogenic greenhouse gas emissions. In clarifying that anthropogenic greenhouse emissions qualify as ‘pollution of the marine environment’ under UNCLOS, ITLOS’ advisory opinion carries significant legal ramifications for the future of the international law of the sea, international environmental law and climate governance.

Numerous issues of general significance flow from the advisory opinion, including: the classification of greenhouse gas emissions as a form of ‘marine pollution’; States’ obligations to ‘take necessary measures’ to control and eventually eliminate such pollution from all sources, whether ocean-based, land-based and through the atmosphere; States’ obligations to exercise ‘stringent’ environmental due diligence; and obligations related to international cooperation and supporting vulnerable states.

Following the issuance of the advisory opinion, the ANZSIL Oceans and International Environmental Law Interest Group convened a webinar event on 28 May 2024 to offer a ‘first reading’ of the opinion and perspectives on its implications, including for Australia, New Zealand and the Pacific. This ANZSIL Perspective has been developed on the basis of that webinar event.

Introduction to the Advisory Opinion

Several articles of UNCLOS establish affirmative obligations to ‘protect and preserve’ the marine environment. Article 194 (and other provisions) direct states to adopt all necessary measures to prevent, reduce, and control ‘all sources of marine pollution’. UNCLOS does not explicitly identify greenhouse gas emissions as a pollutant; climate change and ocean acidification were simply not considered in the negotiations leading up to UNCLOS. The science is now, of course, much clearer: anthropogenic greenhouse gas emissions alter ocean chemistry, causing multiple ‘deleterious effects’ for marine ecosystems such as ocean acidification, ocean warming, and sea level rise. The impact of climate change in the oceans, in turn, threatens the livelihoods of many communities, particularly in low-lying island states such as Kiribati, Tuvalu, Vanuatu, Antigua and Barbuda, just to name a few. These low-lying states have been urgently seeking redress and protection under international law.

In December 2022, the Commission of Small Island States on Climate Change and International Law (‘COSIS’), with eight states from the Caribbean and Pacific in its present membership, made a request to ITLOS to clarify, through an advisory opinion, the specific obligations of State Parties to UNCLOS concerning climate change impacts on oceans, including ocean warming, ocean acidification and sea level rise.

The request was designed with two principal aims: first, to establish that the deleterious effects on the oceans that result – or are likely to result – from climate change owing to anthropogenic greenhouse emissions amount to ‘marine pollution’ under UNCLOS; second, to clarify the specific legal obligations of States Parties to UNCLOS in addressing the impacts of climate change on the marine environment.

More than 50 states, intergovernmental organizations, and other groups voiced their views on these issues before ITLOS. Many of them argued that the obligations under UNCLOS should be guided by today’s scientific understanding and current threats to the marine environment.

In terms of the substance of the advisory opinion itself, ITLOS first found that it had jurisdiction to give the opinion, that COSIS’ request was admissible, and no compelling reasons existed for it to decline jurisdiction. ITLOS also acknowledged the findings of the IPCC as ‘authoritative assessments’ of climate change science. Relying on the wording of UNCLOS itself, it found that greenhouse emissions are a ‘substance’ which is ‘introduced by humans, directly or indirectly, into the marine environment’, and causes multiple ‘deleterious effects’ to living resources and marine life. These effects are clear and undisputed, confirmed by science, and recognised by states. Thus, the introduction of greenhouse gas emissions in the oceans amounts to ‘marine pollution’ under UNCLOS.

The significance of this finding should not be underestimated.  It triggers states’ obligations, stipulated in various provisions of UNCLOS, to take ‘all necessary measures’ to reduce and control existing marine pollution from such emissions and ‘eventually prevent such pollution from occurring at all.’ States should follow the science, notably the findings of the IPCC.  States should also be guided by external instruments, such as those contained in climate change treaties. States should exercise ‘stringent’ due diligence in relation to greenhouse emissions [para 241].

This is not simply an obligation of best efforts. States must put in place a functional national system, including legislation, administrative procedures, and an enforcement mechanism to regulate greenhouse-emitting activities. As an example, according to ITLOS, environmental impact assessments should consider both the specific as well as the ‘cumulative’ impacts of planned activities on the marine environment [para 365]. It would mean for instance that, if a State commissions a new coal power plant which is likely to lead to increased CO₂ emissions with consequent harm to the environment, the relevant emission figures must be assessed, quantified, and identified in terms of the likely carbon footprint on the ocean, and then published in accordance with UNCLOS.

Lastly, while some observers may be disappointed that ITLOS did not take the view that major greenhouse gas-emitting states bear international responsibility for climate-induced damage to the marine environment, the wording of the questions posed to ITLOS weighed heavily against any such finding.  COSIS’ request only referred to primary obligations under UNCLOS. It did not invite ITLOS to consider legal consequences arising from the breach of these obligations. ITLOS did, however, emphasise that if a State fails to comply with its obligations under UNCLOS to reduce and eventually eliminate emissions, ‘international responsibility would be engaged for that State’ [para 223].

This finding may serve as a wake-up call for all major CO₂-emitting State Parties to UNCLOS. Failure to react and comply could leave them vulnerable to environmental litigation that may lead to UNCLOS proceedings. Furthermore, courts and tribunals exercising UNCLOS jurisdiction might now be more willing to assess and review domestic national authorities’ decisions or policies made by State Parties on issues pertaining to greenhouse gas emissions and climate change. This includes considering whether those policies align with the necessary measures requirement under Article 194(1) of UNCLOS.

Perspectives on Australia’s legal position, and other issues of standing and advisory jurisdiction

This section considers Australia’s legal position and the recurrent question of the scope of ITLOS advisory jurisdiction and the question of COSIS standing, or rather whether its application should have been declined as a matter of discretion.

On issues of substance, Australia’s principal argument centred on the function and purpose of UNCLOS as a framework agreement, which allows for the development of the law of the sea over time through distinct international agreements, rules, and standards. Australia accepted that GHG emissions fall within the definition of pollution of the marine environment under Article 1. The question then for Australia was how UNCLOS provisions regarding duties to prevent, reduce, and control pollution of the marine environment related to State Parties’ obligations in respect of anthropogenic GHG emissions under other treaties.

Australia sought to relate several provisions of the Convention to various external instruments. In particular, Australia pointed to the general obligation to protect and preserve the marine environment under Article 192 of UNCLOS, the obligation to take necessary measures to prevent, reduce, and control GHG emissions that pollute the marine environment, and to harmonise policies among states in that regard under Article 194. Australia also referred to the obligation to take into account internationally-agreed rules when adopting laws and regulations to prevent, reduce, and control pollution of the marine environment as per Articles 207 and 212 of UNCLOS. Additionally, in adopting such national laws to prevent, reduce, and control pollution of the marine environment from land-based sources or through the atmosphere, there is a duty to act through competent international organisations or diplomatic conferences to endeavour to establish global and regional rules and standards, as outlined in Articles 207 and 212.

Australia’s argument was that unlike Part XII of UNCLOS, which was not drafted with the threat posed by GHG emissions to the environment in mind, GHG emissions are the specific focus of the UNFCCC and the Paris Agreement. These two instruments reflect the specific standards and commitments which the international community, after careful consideration, has agreed upon to address the challenges posed by climate change.

Australian submissions also rested to some extent on Article 197 of UNCLOS, which provides that states shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent international organisations, in formulating and elaborating international rules, standards, and recommended practices and procedures consistent with this Convention for the protection and preservation of the marine environment, taking into account characteristic regional practices.

The argument then was that under the auspices of the UNFCCC and the Paris Agreement, states are already taking long-term, detailed, and meaningful steps to address a range of issues associated with GHG emissions and climate change impacts. Essentially, the Australian argument was that UNCLOS already has numerous provisions that both require cooperation and the formulation of further legal standards outside the Convention with respect to a range of issues, not just pollution. These UNCLOS provisions then reincorporate those internationally-agreed standards into the Convention. A classic provision of this sort of genre is Article 94(5) of the Convention, regarding non-flag state duties concerning generally accepted international regulations. This provision effectively integrates the most widely ratified IMO conventions on questions of ship safety and standards into the Convention.

Australia thus put forward a perfectly respectable argument about how the Convention might work as a framework convention. But if accepted, it would have had the effect of treating the Paris Agreement and the UNFCCC as measures essentially completely fulfilling the duties established in Articles 194, 197, 207, 212, and 192. This is not the route the Tribunal ultimately followed.

Australia chose not to relitigate the arguments it had made in the Sub-Regional Fisheries Commission (SRFC) advisory opinion that ITLOS lacks advisory jurisdiction other than the jurisdiction conferred on the Seabed Disputes Chamber. China was left to make this argument most forcefully, with the UK simply noting its previous position in the SRFC advisory opinion. Unsurprisingly, ITLOS was unmoved by submissions that it lacks general advisory jurisdiction and upheld its approach in the (SRFC) advisory opinion. The Tribunal held that its advisory jurisdiction arises from the interrelation between Article 21 of its statute, covering all applications submitted to it in accordance with the Convention, and ‘all matters’ specifically provided for in any other agreement which confers jurisdiction on the Tribunal. ITLOS interpreted ‘matters’ to include requests for advisory opinions. On this view, it is not the statute alone or the external agreement alone that creates the capacity for general advisory jurisdiction, but the two taken together. Article 21 provides for the possibility, and an external agreement may therefore confer it. Article 138 of the rules then provides in more detail that ITLOS may give an advisory opinion on a legal question if an international agreement related to the purposes of UNCLOS specifically provides for it, and if a competent international body submits that question.

This brings us to the question of standing: could COSIS actually activate the advisory jurisdiction of the Tribunal, and even if that was possible, should it be allowed as a matter of discretion? The UK, for example, made two very brief submissions on this point. The first was that a very small number of states—only two initially, though six in the end—had created an international organisation with the power to request advisory opinions focused on the obligations of states that were not parties to the request and had no opportunity to be involved in framing it. The inference here is that a small number of states should not be able to bootstrap themselves into advisory jurisdiction by creating a boutique international organisation.

The Tribunal’s advisory opinion does not address these questions directly, but they are taken up by Judge Kittichaisaree in his declaration. He noted the contention by some participants that COSIS had essentially concluded an international agreement for the sole purpose of submitting the request for the advisory opinion, potentially encouraging further similar requests that may distort the object and purpose for which the Tribunal was established. The argument was also made that the Commission was not truly an international body in the sense of Article 138(2) of the rules. Nonetheless, Judge Kittichaisaree’s view was that the purpose of the Commission was to assist small island states in promoting and contributing to the definition, implementation, and progressive development of rules and principles of international law concerning climate change and the protection and preservation of the marine environment. He noted that the members of the Commission, scattered across the globe, are united by their connection to and dependence on the marine environment and its resources. Small island states, in particular, are especially affected by the impacts of GHG emissions on their long-term future, despite having been negligible contributors to the problem. He also noted that these advisory proceedings before the Tribunal are the first but certainly not the last initiative of the Commission, which has also been authorised to participate in advisory proceedings before the ICJ and the Inter-American Court of Human Rights. Therefore, in his view, the Commission had a wider function for these small states that are also using it to pursue proceedings in other fora.

Perspectives on New Zealand’s position and the relationship between UNCLOS and other instruments in relation to climate change obligations

The Tribunal’s advisory opinion aligns significantly with New Zealand’s submissions, reflecting a substantial consistency in both the conclusions reached and the reasoning employed. New Zealand’s position was that greenhouse gas emissions constitute pollution and that Articles 194, 192, and other obligations under Part XII of UNCLOS apply to climate change and ocean acidification. New Zealand recognised the relevance of climate change to interpreting these obligations when determining necessary measures. Unlike Australia, New Zealand did not explicitly argue that the climate change regime constituted these obligations; instead, it adopted a more flexible approach, leaving the matter open. The submission even quoted the ILC fragmentation report on compatible obligations, which the Tribunal also referenced. This suggests that New Zealand would likely be satisfied with the outcome, as it aligns with their advocated position.

However, the implications for domestic policy are another matter. The opinion underscores that states, including New Zealand, have stringent due diligence obligations to prevent marine pollution and to protect and conserve the marine environment from the effects of climate change and ocean acidification. These considerations must be factored into decisions on authorising new offshore oil and gas activities, onshore mining, and potentially addressing methane emissions from the agricultural sector. New Zealand must also consider its law of the sea obligations regarding adaptation and blue carbon management, potentially as part of area-based management strategies.

In terms of how the Tribunal approached the relationship between UNCLOS and other legal instruments in relation to states’ climate change obligations, two key issues stand out. The first concerns how external instruments were used in the interpretation of key provisions of UNCLOS. The second relates to the relationship between the obligations under UNCLOS and the UNFCCC regime. The extensive use of external instruments demonstrates that UNCLOS is indeed a living instrument. International courts and tribunals exercising law of the sea jurisdiction have historically drawn on external instruments when interpreting UNCLOS, but what the Tribunal did here is particularly interesting.

The Tribunal highlighted several instances where it relied on external instruments. The first instance concerns the objective of Article 194(1) of UNCLOS, which aims to prevent, reduce, and control pollution of greenhouse gases. The Tribunal interpreted this provision by asserting that Article 4(1) of the Paris Agreement creates an obligation for parties to aim for the global peaking of greenhouse gases as soon as possible to meet temperature targets, and to undertake rapid reductions thereafter. This objective aligns with Article 194(1) of UNCLOS.

In assessing the necessary measures under Article 194 to address climate change and ocean acidification, the Tribunal referenced relevant international rules and standards, including the UNFCCC and the Paris Agreement, Article 6 of MARPOL (addressing emissions from ships), Annex 16, Volumes III and IV of the Chicago Convention (relating to emissions from aviation), and the Montreal Protocol with its Kigali Amendment. The Tribunal emphasised that the UNFCCC and the Paris Agreement, as primary legal instruments addressing global climate change, are relevant in interpreting and applying UNCLOS concerning marine pollution from anthropogenic greenhouse gas emissions.

However, the Tribunal clarified that the UNFCCC regime is not lex specialis and that obligations under Article 194 are not necessarily fulfilled by merely complying with the Paris Agreement. This position contrasts with how SOLAS and MARPOL are treated as rules of reference for Articles 94 and 211, respectively. Instead, the UNFCCC is used for interpretation purposes in line with Article 31(3)(c) of the Vienna Convention on the Law of Treaties.

Early in the opinion, the Tribunal emphasised the open character of UNCLOS and its constitutional and framework nature, asserting that external rules are particularly relevant in this case. Subject to Article 293 of the Convention, UNCLOS should be interpreted consistently with relevant external rules. The Tribunal cited the ILC’s 2006 report on the fragmentation of international law, which states that when multiple norms address a single issue, they should be interpreted to create a single set of compatible obligations. This effort to identify compatible obligations is evident in various parts of the opinion, such as the discussion on how capacity affects the nature of state obligations, referencing the principle of common but differentiated responsibilities (CBDR) from the UNFCCC.

The Tribunal conceded that CBDR is not explicitly mentioned in Article 194(1) but noted that the article contains elements common to the principle. When examining pollution obligations under Articles 207, 211, and 212, the Tribunal distinguished between external instruments representing internationally agreed rules, which must be considered in implementing obligations, and rules of reference like Annex VI of UNCLOS concerning vessel pollution.

Interestingly, the distinction between rules of reference and standards relevant to interpretation was somewhat blurred in the discussion of enforcement and implementation. The Tribunal found that states must adopt laws and regulations to implement standards under Article 6 of UNCLOS, using similar phrasing for the UNFCCC in relation to land-based and atmospheric pollution, despite not classifying the latter as rules of reference.

In the broader context of Article 192, the Tribunal interpreted the obligation to protect and conserve the marine environment to include measures supporting resilience and adaptation, referring to how these terms are developed in climate change treaties. The Tribunal also referenced Article 2 of the Biodiversity Convention in respect of the definition of ‘habitat’ and the Convention on International Trade in Endangered Species when discussing endangered species.

There were two areas where the Tribunal’s treatment of external rules was less comprehensive. First, in relation to the BBNJ Agreement, the Tribunal briefly noted its context in EIAs but did not attempt to integrate its detailed processes into its discussion of relevant UNCLOS provisions, focusing instead on an interpretation of EIA distinct from the BBNJ process. Second, in the area of human rights, while the Tribunal accepted their relevance, it did not engage in a detailed discussion of how these obligations might be relevant to the interpretation of Part XII of UNCLOS. Judge Pawlak and Judge Infante Caffi, in their declarations, notably argued for greater engagement with human rights law in interpreting UNCLOS provisions.

Overall, the Tribunal took a liberal approach in using external international instruments, which is to be welcomed.  There is no doubt that previous law of the sea cases have referred to external instruments before in the context of UNCLOS’ interpretation. But this opinion takes it to a new level and is an interesting attempt to achieve what Campbell McLaughlin describes as ‘systemic interpretation’. This is perhaps not surprising given the context and the subject matter of the case where external instruments are so important. It will be interesting to see how states react to this, of course.

A second reflection, much more briefly concerns the idea that the Tribunal emphatically stated that a party’s obligations under Article 194(1) of UNCLOS, are not necessarily satisfied simply by complying with the obligations and commitments under the Paris Agreement. This was the argument that Australia was seeking to present to the Tribunal, and the Tribunal went on to say that the Convention and the Paris Agreement are separate agreements with separate sets of obligations. While the Paris Agreement complements UNCLOS in relation to the obligation to regulate marine pollution from anthropogenic greenhouse gas emissions, the former does not supersede the latter. This is a very important conclusion.

It could be interpreted as meaning that states need to adopt measures to implement their commitments under Part XII of UNCLOS. While they absolutely need to consider international standards under the UNFCCC regime, if those standards are not sufficient to meet their obligations under Article 194, then they need to go further. There is a strong argument that the Paris Agreement standards are not sufficient  to prevent the impacts of climate change and ocean acidification on the oceans. Essentially, it is not open to states simply to rely on their commitments under the Paris Agreement and assume that this means they need to do nothing more in order to meet their commitments under Part XII of UNCLOS.

Perspectives on climate change law and science, and the significance of the Advisory Opinion for Pacific countries

First, the opinion has a great value as an authoritative summary of the science and of the effects of climate change on the oceans that we have really not previously had at such a high level. While the IPCC reports are important, particularly the Special Report on the Oceans and the Cryosphere, they do need validation and support from political and legal institutions. This opinion achieves this.

Turning to the legal substance of the opinion, several key parts are directly relevant to the broader question of the interaction with climate change obligations. Take as an example Article 194(1) of UNCLOS. This obligation requires states to take all necessary measures to prevent marine pollution, and the Tribunal found, as mentioned earlier, that this imposes an obligation on States Parties to the Convention to reduce and control greenhouse gas emissions and eventually eliminate them entirely. But interestingly, paragraph 199 includes somewhat confusing reasoning:

“In relation to anthropogenic GHG emissions, the objective of preventing, reducing and controlling marine pollution should be appreciated on the basis of the scientific assessment that, even if anthropogenic GHG emissions were to cease, the deleterious effects on the marine environment would nevertheless continue owing to the extent of GHGs already accumulated in the atmosphere. The obligation under article 194, paragraph 1, of the Convention requires States to take all necessary measures with a view to reducing and controlling existing marine pollution from such emissions and eventually preventing such pollution from occurring at all. Therefore, this obligation does not entail the immediate cessation of marine pollution from anthropogenic GHG emissions.”

The Tribunal says in the early part of the paragraph that damage will continue to occur even if emissions were to stop immediately, and therefore the concludes that there is no need to stop them today. That particular reasoning is difficult to follow and illustrates the lack of detail as to the precise duties under Article 194(1). The Tribunal does seek to elaborate on the content of Article 193, but there remain opportunities for further development and clarification.

The Tribunal noted that global or joint action was not a justification for failing to take individual action, which is part of an important substratum of reasoning that led to the conclusion that it is not sufficient for parties simply to say that they are complying with the Paris Agreement in order to comply with UNCLOS. The Tribunal noted that determining what measures are necessary to be taken is something to be determined objectively, which is an important finding. The Tribunal did make such a finding, stating that the obligation to prevent greenhouse gas emissions damaging the marine environment is not complied with simply by virtue of complying with the Paris Agreement.

That is clearly very significant. However, as previously mentioned, the Tribunal does ultimately cross-reference the UNFCCC and the Paris Agreement in informing how the Article 194(1) obligation is to be performed. ITLOS emphasised states are required to make their best efforts, that it is a due diligence obligation, and that the standard of due diligence needs to be ‘stringent’ and the importance of states taking the climate crisis seriously [para 241].  The Tribunal specifically says that necessary measures include those to reduce greenhouse gas emissions [para 243]. However, the Tribunal does not specify exactly by how much and by when, which is somewhat of a missed opportunity.

Turning now to several observations of the Tribunal in relation to the obligation to prevent transboundary pollution. It is helpful that the Tribunal rejected the argument that greenhouse gas emissions were not covered by this provision, as they contribute to global CO₂ concentrations in the atmosphere. The Tribunal pointed out that issues of causation are separate from the general obligation to prevent transboundary pollution. The Tribunal also emphasised the importance of cooperation and, as we know, provided a detailed set of paragraphs on obligations applicable to specific sources of pollution, atmospheric, land-based, and so on, before ultimately addressing question B, which it deals with in far fewer pages than question A.

There is one part of the response to question B that is worth highlighting. The Tribunal points out that climate change and ocean acidification, and the obligation under the Convention to prevent greenhouse gas emissions from damaging the marine environment, are relevant to a host of specific obligations, including those concerning fisheries. This provides a vehicle by which governments and civil society can advocate for other provisions of the Convention and supporting agreements under the framework of the Convention to address climate change concerns.

Finally, looking at the Asia-Pacific region and looking forward, it is important to note that the COSIS parties included three Pacific Small Island States: Tuvalu, Palau, and Niue. There is a strong Pacific interest in this advisory opinion, and one can only assume that there is a general degree of satisfaction with the way the advisory opinion turned out. However, there are things that now could and should happen. There are major opportunities to sharpen the interpretation of Article 194(1) and (2) informed by science and state practice. The advisory opinion provides a general approach for giving the obligation effect, but we need to do more work in quantifying exactly what states should do now. This can be done consistently with the advisory opinion.

As mentioned earlier, the opinion does not address international responsibility for the obvious reason that the Commission did not ask the Tribunal to do so. That was a wise decision because the Tribunal might have rejected the request if responsibility or liability issues had been included. Nevertheless, the advisory opinion might still present the foundations for future contentious proceedings or even another advisory opinion specifically on the issue of responsibility.  Where might another advisory opinion come from? The BBNJ agreement has been mentioned, and the Tribunal notes in paragraph 92 of the opinion that the COP may request an advisory opinion from ITLOS. If and when the agreement enters into force, this may occur.

Regarding sea level rise, this is an issue that the Tribunal does not address directly. However, it does mention the wording used by Pacific states insisting that maritime entitlements remain as they are, irrespective of sea level rise. This is an important textual incorporation of that position, even if the Tribunal does not express an opinion on it. The advisory opinion clearly does not directly address the issue, but it provides a potential way forward for addressing it in the future. Accordingly, we can anticipate further proceedings based on this landmark opinion.

Final observations

A ‘first reading’ of the Advisory Opinion suggests that there are several reasons why it should receive a welcome reception by the international community. First, while some may continue to harbour doubts as to the legitimacy of the exercise by ITLOS of its advisory jurisdiction in circumstances such as these, indications are that this aspect of the Tribunal’s functions is consolidating. If so, such a trajectory is surely further consolidated by the Tribunal’s assiduous restraint of its opinion only to those matters responding to the questions posed (and avoidance, for example, of broader questions such as responsibility and sea-level rise and the maritime zones). Second, the opinion offers an example of a sustained and effective engagement with climate science in a legal context. This of course lends weight to the central role given to ‘best available science’ in the Tribunal’s conclusions on the substance of State’s obligations to reduce greenhouse gas emissions, and in so doing also extends to climate science the authority of ITLOS as a legal institution.  Finally, the interpretative approach demonstrated in the Advisory Opinion demonstrates a commitment to take an integrated approach to states’ obligations relating to climate change, articulating a nuanced interrelationship between UNCLOS and a range of external instruments (such as the Paris Agreement, the BBNJ Agreement, and the UN Fish Stocks Agreement).  While much still depends on states’ actions (or inaction) in response to the Advisory Opinion, the approach taken by ITLOS leaves open the possibility for UNCLOS to continue to develop to meet the challenges of climate change with both flexibility and integrity.