Latin America’s Uneven Engagement in the Climate Advisory Proceedings before the ICJ and ITLOS
By Valeria Flores Romo*
Introduction
With growing climate threats and unprecedented international legal action, the advisory proceedings before the International Court of Justice (ICJ) and the International Tribunal for the Law of the Sea (ITLOS) have become crucial forums for defining States’ obligations under international law. This said, in these processes Latin America has shown significant yet inconsistent participation in these processes.
This blog post offers a critical analysis of Latin American States’ engagement with both the ICJ and ITLOS climate advisory proceedings and outlines which countries submitted written or oral statements – duly highlighting a smaller group that contributed to both Advisory processes. While some countries engaged meaningfully, others remained silent in both proceedings. Drawing on official filings and public oral statements, the post identifies key regional themes and trends in the legal framing of climate justice.
Choosing not to engage in advisory proceedings carries legal and diplomatic consequences. This post also reflects on the implications of non-participation, arguing that by staying silent, some States risk ceding interpretive space to others and lose the opportunity to participate in the collaborative effort of advisory proceedings, which stand in stark contrast to contentious proceedings. As global legal standards on climate responsibility continue to develop, Latin America’s fragmented presence in these proceedings highlights both the progress already made and emphasises the need to ensure all voices in the region are heard and represented.
Context
Latin America is one of the most environmentally and climatically diverse regions in the world. From the Amazon rainforest to the Mesoamerican coral reefs; from Andean glaciers to hurricane-exposed coastlines, the region is acutely vulnerable to the effects of climate change. Yet, Latin American States have not always acted in a unified or consistent manner when it comes to shaping the development of international climate law.
In recent years, international legal forums have opened new paths for accountability and norm clarification, most notably through the advisory proceedings on climate change brought before the ICJ, ITLOS and the Inter-American Court of Human Rights (IACtHR). While the ICJ and ITLOS requests were led by Pacific and Caribbean coalitions, the IACtHR proceedings were initiated by two Latin American countries: Colombia and Chile. Moreover, the region endorsed the ICJ request at the UN General Assembly, and a majority of them contributed through written and/or oral statements.
The ITLOS opinion, delivered in May 2024, focused on whether greenhouse gas emissions constitute marine pollution under UNCLOS, and what obligations States have to prevent, reduce, and control such pollution. The pending ICJ opinion, requested by Vanuatu and adopted by consensus at the UN General Assembly in March 2023, seeks to clarify States’ obligations under international law in relation to climate change, potentially including obligations under human rights law, environmental treaties, and customary international law, among others.
Through these advisory opinions, we are currently under a global shift in how climate obligations are being interpreted. While this post focuses on Latin American engagement with the ICJ and ITLOS processes, it is worth noting that the region also contributed to the development of climate obligations through the IACtHR, whose advisory opinion was notified July 3rd, 2025.
Analysis
The ITLOS Advisory Opinion on Climate Change.
On 21 May 2024, ITLOS issued an advisory opinion on States' obligations to protect and preserve the world's oceans from climate change impacts. ITLOS was the first international judicial body to deliver a climate-related advisory opinion, and the first to address States' obligations to combat climate change within the framework of the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
A total of 52 entities, including 30 States submitted written statements to ITLOS, including four from Latin America: Brazil, Chile, Belize, and Guatemala. The ITLOS advisory opinion requested by the Coalition of Small Island States (COSIS) in December 2022 , specifically asked about states’ duties under UNCLOS to prevent, reduce, and control marine pollution from climate change. ITLOS invited all States Parties to UNCLOS to submit written statements by mid-2023, and held oral hearings in Hamburg in September 2023. The tribunal ultimately delivered its advisory opinion on 21 May 2024.
Countries like Chile, Brazil, and Guatemala stood out for their written submissions and oral participation. Chile, in particular, advocated that greenhouse gas emissions qualify as marine pollution under UNCLOS. At the hearings, it urged the tribunal to interpret the Convention dynamically, in light of the climate crisis (Chile Written Submission, paras. 11-16, 40-58). Brazil, for its part, emphasized that UNCLOS duties regarding climate-related ocean impacts must be interpreted in light of international climate principles, including Common But Differentiated Responsibilities and Respective Capabilities (CBDRRC) (Brazil Written Statement, paras. 13–20). Furthermore, Belize, filed a written submission focused on protecting coral reefs and marine biodiversity. (Belize Written Statement, paras. 53-34)
Guatemala`s submission, in contrast, urged ITLOS to interpret the submitted questions strictly within the boundaries of lex lata, rather than engaging in progressive law-making or venturing into lex ferenda. (Guatemala Written Statement, para. 21). Additionally, emphasizing the need to protect the rights of third States who were not consulted in the drafting or submission of the request. It pointed specifically to the COSIS Agreement, suggesting that it may have been designed solely to enable these proceedings and cautioning that such mechanisms could distort the original purpose of the Tribunal (Guatemala Written Statement, paras. 22-23). While such concerns may warrant discussion, it comes at the expense of addressing the urgent climate issues at hand.
Mexico gave an oral statement and Bolivia, despite being landlocked, also spoke at the hearings. Argentina did not submit a written statement to ITLOS by the deadline (it was not on the initial list), but joined the oral hearings in Hamburg – this change coming potentially after seeing the range of submissions by others.
Other Latin American and Caribbean states largely stayed on the sidelines of the ITLOS advisory case. For instance, Uruguay, Peru, Colombia, Panama, Costa Rica, Dominican Republic, Honduras, Nicaragua, Paraguay, Cuba, Haiti, Venezuela, and others did not participate in the ITLOS written or oral proceedings.
The Latin American states that did contribute at ITLOS also had similar positions at the ICJ, but tailored to the law of the sea context. A shared argument was that greenhouse gas emissions qualify as marine pollution under UNCLOS and trigger States’ obligations under Articles 192 and 194. Chile, for example, emphasized that States must reduce emissions to prevent ocean warming, acidification, and sea level rise, framing these as specific obligations of due diligence shaped by Articles 194, 207, and 212. (Chile Written Statement, pp. 44–58).This position was later echoed by ITLOS, which confirmed that Article 194(2) imposes a transboundary obligation of due diligence, requiring States to ensure their emissions do not cause harm beyond their jurisdiction (ITLOS AO, para. 258).
The ICJ Advisory Opinion on Climate Change
The ICJ proceeding on Obligations of States in respect of Climate Change has seen unprecedented global engagement, including strong participation from Latin America. In total, the Court received over 90 written submissions and later heard oral arguments from 94 states and 11 international organizations. Among the written contributors were 13 Latin American countries: Argentina, Belize, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Mexico, Peru, and Uruguay. All UN-recognized Latin American States supported the UN resolution by consensus, signaling regional interest in clarifying climate obligations. In practice, however, participation levels varied by country
Countries like Chile, Colombia, Mexico, Brazil, and Costa Rica stood out for their full engagement. A key area of convergence among these submissions was the emphasis on intergenerational equity, with strong submissions by Mexico, Chile, and Costa Rica, framing climate change as a threat to future generations that imposes binding duties on present-day states (Mexico Written Statement, paras. 97–103; Chile Written Statement, paras. 67-70; Costa Rica Written Statement, paras. 56–57). Brazil and Costa Rica, invoked the principle of CBDRRC, emphasizing fair burden-sharing in climate mitigation. This echoed Brazil’s submission as well, which also spoke on CBDRRC. (Brazil Written Statement, paras. 21–29; Costa Rica Written Statement, paras. 58–64) Colombia emphasized due diligence and the duty to prevent transboundary harm, building on its own constitutional jurisprudence (Colombia Written Statement, paras. 3.13-3.30).
Other countries such as Belize, Bolivia, Argentina, Peru, Uruguay, and Ecuador also made contributions. Peru linked ecosystem protection to indigenous rights and global climate stability (Peru Written Statement, paras. 9–14, 41–60). Uruguay highlighted the binding nature of climate obligations and their continuity even after breaches, referencing the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) (Uruguay Written Statement, paras. 163–168). Belize emphasized its vulnerability as a Small Island Developing State disproportionately exposed to climate disasters (Belize Written Statement, paras. 1–7, 12–15). Ecuador advanced a rights-of-nature approach, asserting that states are obligated to protect ecosystems and biodiversity (Ecuador Written Statement, paras. 3.97-3.118). Argentina emphasized the ICJ’s jurisdiction and argued that existing treaties, particularly the UNFCCC and Paris Agreement, already impose enforceable climate obligations (Argentina Written Statement, p. 9-13).
Two other states, Guatemala and Panama, did not submit written briefs but still participated in oral hearings. Their statements reinforced regional concerns around loss and damage, ocean-related climate impacts, and the urgency of recognizing legal duties under existing treaties. It is interesting to note, Guatemala’s participation in this forum was quite limited compared to ITLOS, where it submitted a written statement emphasizing the importance of judicial restraint.
Cuba and Haiti did not participate in the ICJ advisory proceedings, despite both supporting the UNGA resolution. Cuba missed the opportunity to raise issues like the impact of the U.S. embargo on its climate resilience. Haiti’s silence, likely tied to domestic instability and limited capacity, left unvoiced perspectives from least developed countries.
The States of Honduras, Nicaragua, Paraguay, and Venezuela did not participate in the ICJ proceedings. This meant missing the opportunity to spotlight pressing national issues like displacement linked to extreme weather. Local civil society has expressed frustration over the government’s silence, especially given its failure to address climate-driven displacement and human rights risks. Nicaragua, despite severe climate exposure and a longstanding history of environmental litigation at the ICJ, did not participate in the climate advisory proceedings, but remained actively engaged in contentious cases such as Nicaragua v. Germany (2024).
Paraguay, a landlocked country highly impacted by climate variability, did not engage in the ICJ or ITLOS proceedings. It is interesting to note, however, it did participate in the advisory proceedings before the IACtHR. Civil society voices in Paraguay have lamented the country’s low engagement with international climate mechanisms. Finally, Venezuela’s absence may reflect political caution. As a major oil-exporting state, it may have been wary of processes that could imply liability for fossil fuel producers.
It is very interesting to observe that, unlike other regions that were represented by regional political bodies, such as the African Union, European Union, and the Organization of African Caribbean and Pacific States (OACPS), the Organization of American States (OAS) did not participate. This absence represents a missed opportunity for the organization to amplify the voices of vulnerable communities, particularly Indigenous peoples.
In sum, the majority of Latin American states participated in the ICJ climate advisory proceedings, reflecting a regional trend in favor of seeking clarity on legal obligations. Their submissions overwhelmingly supported the notion that existing international law already requires states to prevent transboundary climate harm and protect people from climate change.
While none opposed this advisory opinion or sought to limit its scope, some, like Brazil or Argentina, did emphasize heavily on how existing treaties such as the UNFCCC and Paris Agreement, already impose binding obligations. This general approach contrasts with more cautious interventions from States like the UK, which warned against expanding legal obligations through judicial interpretation and faced criticism for downplaying climate accountability.
Implications for Latin American States Not Participating
The ITLOS proceedings drew fewer Latin American participants than the ICJ case, with only seven countries engaging, compared to well over a dozen at the ICJ. Notably, all Latin American states that participated in the ITLOS proceedings also engaged in the ICJ process. None participated in ITLOS alone, suggesting that states were either fully engaged in climate legal diplomacy or opted out altogether.
The disparity in participation isn’t solely due to geography either; landlocked and coastal states alike faced the same legal questions, as ITLOS confirmed that GHG emissions are marine pollution under UNCLOS, meaning every state party (whether coastal or not) has obligations and are affected by pollution of the oceans.
The non-participation of Latin American states in either the ICJ nor the ITLOS advisory proceedings, carries several potential implications:
Critical issues such as protection of indigenous communities, regional food security and climate-induced displacement went largely underexplored, and yet they will still be affected by the outcomes. This signals a missed opportunity to participate in the interpretative process, especially as participation in advisory proceedings, as advisory opinions represent the most authoritative interpretations of binding international law and are often cited in litigation and policy making. A Latin American country that neither helped frame the questions nor provided its interpretation may find the opinion’s conclusions apply to it without its input.
There are numerous reasons why a State may have opted out of these processes. For countries like Haiti or Honduras, domestic crises could have possibly taken precedence, and drafting submissions on complex legal-scientific issues can be resource-intensive. Others may have been cautious about potential legal exposure. Still, capacity alone cannot fully explain the silence. By abstaining, these governments ceded interpretive space to others and will still face the legal and normative consequences.
The impending ICJ advisory opinion and the delivered ITLOS opinion together form a body of emerging climate jurisprudence. Latin American countries that engaged in neither process may nonetheless feel their impact.
Reflection
With a unique ecological diversity, high vulnerability to climate impacts, and large populations living in poverty or at risk of displacement, Latin America stands to gain significantly from how international legal norms evolve. The ICJ and ITLOS opinions, along with the recently notified opinion from the Inter-American Court, are extremely crucial when it comes to how the ongoing climate threat and the rights of the people of this region are protected.
Being a young legal researcher from the region, I see these proceedings as signals of how our governments view their responsibility toward our generation and those to come. Whether our countries helped shape these outcomes or not, we will all live with their consequences. For youth across Latin America, this is a call to demand participation, transparency, and ambition from our leaders.
Conclusion
Of the 20 UN-recognized Latin American countries, 75% participated in the ICJ climate advisory proceedings, while only 35% engaged in the ITLOS process. Those that remained silent, will still be shaped by the outcomes. As the ICJ’s decision approaches, both opinions offer critical tools to clarify states’ obligations and empower domestic and regional advocacy. Moving forward, I hope to see greater regional coherence, with all Latin American states embracing legal mechanisms as opportunities to lead on behalf of climate justice.
DISCLAIMER: The views expressed in the symposium’s blog posts are those of the author and do not represent the views of WYCJ. Furthermore, university chapters were prepared, edited, and approved by the respective universities; WYCJ cannot guarantee the level of scientific and legal inquiry, nor the content of blog posts.