Henrique Marcos (Maastricht University) has posted Navigating Discretion in Climate-Ocean Governance: Constraining Criteria in the ITLOS Climate Change Advisory Opinion on SSRN. Here is the abstract:
This chapter examines the role of discretion in international environmental law, particularly in the context of the 2024 Advisory Opinion on the Obligations of States with Respect to the Marine Environment in Relation to Climate Change Impacts issued by the International Tribunal for the Law of the Sea (ITLOS) at the request of the Commission of Small Island States on Climate Change and International Law. The advisory opinion recognises greenhouse gas emissions as marine pollution under the United Nations Convention on the Law of the Sea and imposes obligations on states to prevent, reduce, and control such pollution. ITLOS acknowledges a margin of discretion for states in implementing these obligations, but it emphasises that this discretion must align with objective factors like the best available science and international agreements. This chapter critically analyses the theoretical frameworks of discretion as articulated by Hart and Dworkin. Building on this analysis, the chapter proposes an alternative theory of discretion centred on the concept of constraints, differentiating between discretion in interpretation, norm application, and implementation, as well as discretion in competence and permission. The application of this theory to the ITLOS advisory opinion illustrates how constraints can limit discretion and potentially contribute to global climate change strategies.