Symposium: Climate Justice in International Courts: Working Towards a Livable Future
The International Court of Justice’s Advisory Opinion on Climate Change and Protection of Human Rights
by Elisa Granzotto
Published on 1 August 2023
Introduction
On 27th October 2022, Vanuatu’s Permanent Ambassador to the United Nations, H.E. Odo Tevi, formally announced the intention to introduce a resolution for the U.N. General Assembly to seek an advisory opinion from the International Court of Justice (ICJ) on climate change. A core group of 16 ICJ Champion Nations worked closely to develop a ‘zero draft’ of that resolution, with the goal of addressing the main question of which are the obligations of States related to climate change and human rights protection. This advisory opinion is remarkable for two main reasons: it was inspired by young people and it is the first time that an advisory opinion on the matter of climate change has been brought in front of the ICJ.
Most importantly, the demand by the youth for an advisory opinion was born from the perceived lack of efficiency of the existing legal framework under the United Nations Framework Convention on Climate Change (UNFCCC), which has come short of providing solutions to tackle climate change. Climate change law and human rights law are barely put together under this framework, with only some mentions to human rights protection in the preamble of the Paris Agreement. The ICJ advisory opinion, along with the one pending before the Inter-American Court of Human Rights (IACtHR), is the occasion to connect these two separate spheres of the law and advance the creation of new pathways for protection against the deleterious effects of climate change.
This post focuses on the possible outcomes this advisory opinion can have and its capability to increase the ambition of the existing legal framework.
The ICJ in its Advisory Function
Considering the resolution adopted on 29th March 2023, it is noteworthy to have a closer look at the results of the voting of the resolution text demanding an advisory opinion from the ICJ. This resolution was co-sponsored by 132 countries and adopted by consensus, which means that no State has opposed this advisory opinion and there was no need for a vote. This has in fact been recognised as a ‘win for climate justice of epic proportions’, and is a signal that countries, both developed and developing, recognise climate change as a key issue and its urgency in being addressed.
Even though neither the United Nations Charter nor the ICJ Statute provides advisory opinion with legally binding force, still, it carries great moral authority and legal weight. While it is quite likely that some States will welcome this advisory opinion with open arms, by implementing at national level new policies in line with the dictamen of the Court, other States will instead present more resistance. In this sense an advisory opinion from the ICJ might not lose effectiveness, in fact, even if it does not lay down a clear rule which States directly rely on and follow, i.e. it is not a formal source of law, through its persuasive authority it can and does induce States or other organs to act in accordance with the advisory opinion, thus contributing to the creation of customary law. If it is true that a specific rule needs to be confirmed by State practice to be considered customary law, an advisory opinion produces a justifying effect wherein a State cannot be considered to act unlawfully if it complies with the law found to exist in it, however, a State would have to provide justifications if acting contrary to it. Moreover, in the early formative stages of a customary rule, an advisory opinion can strongly influence not only the behavior of States, but also what they believe they are bound to do – i.e. opinio juris.
Although the opinions are merely advisory, they are still considered as judicial pronouncements and not just regular legal advice. The opinions hold the same level of high judicial quality as judgments. This is very much relevant since the ICJ, in its adjudicating role, has helped shape various fundamental concepts of international environmental law such as the transboundary principle, the cooperation principle and others. Similar outcomes could be achieved through an advisory opinion, also considering that in its advisory opinions the ICJ usually relies to a great extent on its previous case law: it is showcased by the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory advisory opinion, where the ICJ found the existence of a right to self-determination of people living in non-self-governing territories and made no less than twenty-eight cross-references to its own past decisions over the course of only three pages of the opinion.
It is therefore important to take a closer look at the legal elements of the question posed to the ICJ and stress how they can complement or even create a shift between the current paradigm into a possible more ambitious and equitable one.
An Opportunity to Complement the Existing Paradigm
The questions posed concern the following legal aspects: a) the obligations of States under international law to address climate change; b) the legal consequences for States in case of failure to protect the environment from significant harm, especially in respect to those vulnerable to the adverse effects of climate change; and, c) protection of future generations.
The first point of the question does not seem to add anything new to the existing conversation in the international climate change legal framework. This topic has in fact been at the core of the continued negotiations on climate change over the last thirty years, resulting in the 1992 UNFCCC, the 1997 Kyoto Protocol, the 2009 Copenhagen Accord, and the Paris Agreement, among others. The role of the Court in addressing this legal aspect might seem redundant. However, it could lead to an important turning point in order to make States accountable for their greenhouse gas (GHG) emissions. At present, the main agreement governing international climate change law is the Paris Agreement: States pledged to reduce emissions leading to global warming to ‘well below’ 2°C. However, the process established by the Agreement to reach this goal relies solely on the ability and willingness of signatory States to live up to progressively more ambitious pledges – i.e. National Determined Contributions (NDCs). An advisory opinion from the ICJ could constitute a parallel pathway to the UNFCCC framework, to seek impetus for more ambitious action by States and by using human rights as a ground to hold States accountable for unambitious NDCs: providing more specific due diligence criteria by an international tribunal could, for example, potentially encourage countries to propose more ambitious NDCs in the future. If the ICJ elaborates on due diligence criteria, it could complement the process of creating a shared language for discussing NDCs, for instance utilizing specific metrics. This wouldn’t involve making assessments about individual countries, but instead would establish a mutual framework for evaluation.
Moreover, any conclusion made with regard to NDCs and State’s obligation would carry a higher level of fairness since an ICJ advisory opinion could both help to shape and stabilise normative expectations among public and private actors engaged in climate-related work and avoid uncertainties posed by political changes of States like the United States, since these clarifications would be ‘super partes’ instead of nationally determined. An advisory opinion would have an existence independent of the will of the parties and would not be subject to endless renegotiation.
The second legal aspect focuses on accountability and the duty of reparation on behalf of those States who fail to comply with the obligations referred to in the first question. An opinion from the ICJ stressing the need to provide compensation to vulnerable States is normatively desirable: the likelihood that the United Nations climate negotiations will address climate justice issues is remote. While States may have agreed to reduce emissions, there is no incentive for emitters to compensate those States that are victim of climate change. Negotiations currently focus solely on exchanging benefits between all parties (specifically on emission reduction), rather than redistributing goods from some to others.
Still, vulnerable developing countries should be able to receive compensation for the damages they suffer as a result of climate change, since they have contributed little to the problem and have the least capacity to respond. This advisory opinion of the ICJ could give adequate attention to climate justice, for example by opening the path to the discussion on the legal status of the precautionary principle, i.e. if it constitutes a customary law rule or not: this would lead to more ambition into climate action towards adaptation and, consequently, to loss and damage, themes that under the UNFCCC framework have been set aside until the last Conference of the Parties (COP) 27.
Intergenerational equity is at the core of the last question raised to the Court. It is commonly described as the obligation for the present generations, those of us living today, to pass the Earth and its resources to future generations in at least as good condition as it received them, so that future generations can meet their own needs. A very ambitious outcome in this field would be to move beyond the concept of obligation and to reach the enunciation of a right of future generations. In this sense there would be another paradigm shift, since obligations do not require rights, but rights are always linked with obligations. And, of course, the entitlement of a right provides stronger protection than an obligation alone, as they represent specific interests that must be respected and are enforceable by the holders of the rights or their representatives. This idea is not new for the ICJ, in fact it was first enunciated by Judge Weeramantry in his Dissenting Opinion to the Legality of the Threat or Use of Nuclear Weapons: ‘[the ICJ], as the principal judicial organ of the United Nations, empowered to state and apply international law with an authority matched by no other tribunal must, in its jurisprudence, pay due recognition to the rights of future generations.’ This can constitute an important precedent in order to achieve full recognition of a right for future generations to receive the Earth in no worse condition than did the previous generation, to inherit comparable diversity in natural and cultural resources and to have non-discriminatory access to use and benefit from the legacy.
World’s Youth for Climate Justice (WYCJ), as the youth organisation behind the movement to obtain an advisory opinion from the ICJ, has campaigned and focused its efforts especially on this last point: to safeguard the environment and the climate system, it is imperative to ensure the preservation of the environment for both present and future generations, and this necessitates a mindful consideration of the principle of intergenerational equity.
As of now, there is no comprehensive international legal instrument that specifically outlines the fundamental components of intergenerational equity. And although States have not universally recognised the principle as a legally binding obligation, there is compelling evidence of its implementation throughout the acknowledgement of interests of future generations in international and domestic proceedings, as well as within domestic environmental laws and policies. WYCJ sees the need for the principle of intergenerational equity to be officially recognised as legally binding within the international community, and believes that the forthcoming advisory opinion presents a valuable occasion for the Court to provide clarity on the scope and substance of the principle.
Conclusions
It appears clear from the analysis of the questions posed to the ICJ how this advisory opinion could really reshape some key concepts of international climate change law, complementing the existing framework, reaching new levels of ambition and in some cases helping to shift from the current paradigm to a more equitable one.
Of course, the risks that this advisory opinion would not comply with the expectations of the proponents is concrete, and it could even lead to regressive outcomes. However, the latest proceedings before the Tribunal of the Law of the Sea (ITLOS) and the IACtHR, requesting an advisory opinion on similar legal issues, reveals the need from the international community that international and regional courts start playing an active role in this discussion. This indeed constitutes a unique opportunity for the ICJ to address climate change in a more comprehensive manner than other forums, and to fill some gaps that have been left unaddressed for too long. Also, since this advisory opinion will be the last one in time to be addressed, the hopes are that the ITLOS and the IACHR could influence the ICJ decision process positively.
Elisa Granzotto is a law graduate with an LLM in Global Environmental Law and Governance at Strathclyde University Glasgow. She also graduated with a Master’s in International, European & Comparative Law from the University of Trento in Italy. Her specialization is climate change, forestry law (especially tropical forests), and biodiversity conservation.
Elisa is a member of the Academic Taskforce at World’s Youth for Climate Justice (WYCJ) – a global youth-led movement campaigning to seek an Advisory Opinion from the World’s Highest Court on the issue of climate change and human rights. She is the coordinator of the WYCJ’s Latin American front.