We compile the results biannually in an overview of Early Warnings. In this article, we take you through developments in maritime law.

Protecting the Marine Environment

The 168 countries that are party to the UN Convention on the Law of the Sea are obliged to protect the marine environment from the effects of climate change. This is stated in an advisory opinion issued by the International Tribunal for the Law of the Sea (ITLOS) on May 21, 2024. The advice is not legally binding and does not impose direct obligations, but it is an authoritative interpretation of the UN Convention on the Law of the Sea and related international law. Does the advice also offer opportunities for the protection of the North Sea?

Question from Small Island States

The UN Convention on the Law of the Sea contains provisions for the protection and preservation of the marine environment. When the UN Convention was established, climate change was not yet a consideration, and it mainly addressed pollution from oil spills or toxic substances. At the end of 2022, a committee of small island states asked whether the obligation also includes protecting the marine environment from acidification caused by greenhouse gases and the effects of climate change. This is important for the island states due to the risk of being submerged by rising sea levels as a result of climate change.

Weighty Advice

The advisory opinion from ITLOS describes the obligations arising from the UN Convention on the Law of the Sea that apply to (the effects of) climate change. ITLOS also considers internationally agreed rules, such as the UN Framework Convention on Climate Change and the Paris Agreement. In the advice, ITLOS specifies the particular obligations that treaty partners have to reduce, prevent, and combat pollution of the marine environment from greenhouse gas emissions and what specific obligations treaty parties have to protect and maintain the marine environment. According to ITLOS, obligations may also arise from the UN Convention to combat climate change. These specific obligations stand alone and may go further than the Paris Agreement. 

The advice from the International Tribunal for the Law of the Sea (ITLOS) has no direct legal consequences, but it may have indirect influence on (inter)national law and climate policy. All the more reason to keep an eye on rulings following this advice.

Protection of the North Sea

The ITLOS advice prompts Martine Graafland from Public Works and Water Management to consider whether this could also mean something for the North Sea. It is conceivable that climate change has consequences for, for example, ecology, she suggests. Public Works and Water Management is responsible for the management plans of the N-2000 areas in the North Sea. These plans indicate how the nature goals set by the Ministry of LVVN for these areas should be achieved. If species disappear or shift to more southern or northern waters due to climate change, those goals cannot be achieved. Protecting the marine environment against climate change can then help us. 

Public Works and Water Management may also play a supportive role in protection by allowing certain activities only with permits, with fewer or only mitigative measures, Graafland adds. If we can better align the Marine Strategy Framework Directive and permitting, it may provide more tools for protection. If we have more concrete goals for, for example, acidification or the marine food chain, we can regulate better. But this is all still very early, and we need to discuss this thoroughly with the relevant policy directorates.