COSIS Request for an Advisory Opinion: A Poisoned Apple for the ITLOS?

What is it about?

The request for an advisory opinion submitted by COSIS to the ITLOS in December 2022 is part of a larger movement of strategic litigation in relation to climate-change, essentially led by civil society. The ITLOS has thus the opportunity to rule on one of the most pressing issues of our time. However, the modalities of its seisin and the questions submitted revive debates on the Tribunal’s advisory jurisdiction. In the SRFC Advisory Opinion, the ITLOS found that its advisory jurisdiction is based on the Statute and on an external agreement with provisions for that purpose. However, the conditions under which such external agreement may trigger its exercise remain obscure. The COSIS request raises the thorny issue of the compatibility of the external agreement with the Convention, in particular Article 311. The authority of the Tribunal’s opinion depends largely on its care in addressing these difficulties head on.

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