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Brian McGarry represents Small Island States in groundbreaking case on oceans and climate change

Dr Brian McGarry, Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, addressed the International Tribunal for the Law of the Sea in the world's first advisory proceedings concerning climate change. His advocacy for the Commission of Small Island States on Climate Change and International Law (COSIS) drew directly from his scholarship and classroom teaching at Leiden.

In December 2022, COSIS - an intergovernmental organisation composed of Small Island States - requested an advisory opinion from the Tribunal concerning States' obligations under the UN Convention on the Law of the Sea. It asked the Tribunal to find that greenhouse gas emissions are governed by the Convention's rules regarding marine pollution and obligations to protect and preserve the marine environment. Within days, Dr McGarry and Ms Francis Ch├ívez Aco - a Peruvian diplomat who was completing her master's thesis under Dr McGarry's supervision - published an analysis of the Tribunal's competence to address questions concerning climate change, which appeared in the blog of the European Journal of International Law. On the strength of this analysis and his prior experience, COSIS invited Dr McGarry to counsel the organisation on such questions during the preparation of its written statement to the Tribunal.

Brian McGarry

During this period, Dr McGarry directly involved students in a unique blend of teaching and legal practice. In Leiden's LL.M. programme on Public International Law, he challenged students to canvass these questions in assignments and discussions in the privatissimum he created on Ocean Governance and International Law, as well as in the practicum he co-teaches on The Law and Practice of International Organizations. He similarly involved students in his work as a Visiting Professor at Sciences Po Paris (in his course on Dispute Settlement in the Law of the Sea) and at Vermont Law School (in a course he co-teaches with other Grotius Centre faculty members on International Environmental Law and Policy), as well as in his summer course on ocean governance at the University of Geneva and guest teaching on the law of treaties at Queen Mary University London.

Thirty-four States Parties to the Convention chose to participate in these advisory proceedings, along with nine intergovernmental organisations and many non-governmental organisations. In light of challenges raised by some States to the Tribunal's competence in matters of climate change, COSIS asked Dr McGarry to appear before the Tribunal to address these threshold questions during the oral arguments that began this week. As a member of the first delegation to speak in the first advisory proceedings relating to climate change, Dr McGarry thus established the core argument on the jurisdiction of international courts in matters of climate change - a line of reasoning which States and international organisations will now reinforce or challenge.

Some of Dr McGarry's recent LL.M. students at Leiden travelled to Hamburg to attend these hearings in their capacity as climate activists. In the words of Jule Schnakenberg and Mert Kumru, 'for us young and aspiring lawyers, we are privileged with the presence of such excellent role models both in the classroom and in the courtroom'. Referring to their work in support of upcoming and complementary proceedings at the International Court of Justice (ICJ), they noted that 'the team of World's Youth for Climate Justice is looking forward to the outcome of these proceedings in anticipation of the ICJ advisory opinion on climate change and human rights'.

The Tribunal is currently expected to deliver its advisory opinion in early 2024.

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