Symposium: Climate Justice in International Courts: Working Towards a Livable Future
Hope on the horizon?
by Sumeyra Arslan
Published on 4 August 2023
Introduction
Climate justice lawsuits around the world are spreading like wildfire, not only nationally but internationally. While the three advisory opinion requests reside on different premises and divert from each other, they all aim the same: to gain clarity on state obligations and accelerate climate action moving towards climate justice.
This blog will explain the added value of the three cases before the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and the Inter-American Court of Human Rights (IACtHR). At the outset, it is important to set out the crux on which these advisory requests are established. The request for an advisory opinion from the ICJ is seeking clarity about state obligations with special focus on developing states and future generations. On the other hand, the request to ITLOS focusses on states’ due diligence obligations with respect to climate change impacts on the marine environment and consequential harm to small island states. Finally, the respective request to the IACtHR concerns the state obligations to act on the climate emergency under international human rights law.
As the UN Secretary General states on the ICJ’s advisory opinion: ‘If and when given, such an opinion would assist the General Assembly, the United Nations and Member States to take the bolder and stronger climate action that our world so desperately needs. It could also guide the actions and conduct of States in their relations with each other, as well as towards their own citizens. This is essential.’
The added value of the future three advisory opinions from the ICJ, ITLOS and IACtHR
Surmising the arguments in this series, it could be argued that the contribution of these advisory opinions are threefold. Firstly, all three advisory opinions provide a cross jurisdictional perspective on climate crisis, connecting legal consequences to scientific consensus on anthropogenic climate change. While climate change has been on the agenda for a few decades now, not much progress to keep global warming to 1.5 degrees has been recorded. After 57 formal meetings under the UN Framework Convention on Climate Change (UNFCCC), states are yet to act meaningfully to prevent and mitigate the effects of climate change.
Secondly, these advisory opinions would potentially provide legal certainty on what state obligations are and, due to the authority of these opinions, they could have a positive impact in future proceedings before international and national courts. In the current context of surging national climate cases, that aim to hold states and corporations accountable, it is imperative to gain clarity on what states’ obligations are. From German youth suing the German government to Traditional Owners suing Australian banks, civil society is only at the beginning of a fight against climate inaction and for climate justice.
Lastly, these advisory opinions will complement the negotiations under the UNFCCC, limiting the extreme positions states can take and cement consensus on the scientific evidence of climate change. While states have widely agreed on the existence of anthropogenic climate change, they seem to lack acknowledgment of their own responsibility and action. States Parties meet every year to discuss their actions (or omissions) at the Conference of Parties under the UNFCCC, and they have not once addressed the root causes of climate change, one of which is the continued expansion of the fossil fuels industry. The mere absence of the acknowledgment of the causes of climate change on the biggest climate change fora shows the unwillingness of states to act effectively. The unclarity in action has led the most vulnerable states to believe that we need international legal clarity on what states’ obligations are under the climate crisis. Consequently, these advisory opinions will complement the UNFCCC processes rather than threating to derail them.
Common but differentiated responsibilities (CBDR)
The road to climate justice will be paved away if the advisory opinions clarify states’ obligations in the framework of general principles of international environmental law such as common but differentiated responsibilities (CBDR) and polluters pay principles. It is well known that least developed countries have contributed the least to the climate crisis, but they are the ones bearing the brunt of the burden. As it is explained in the piece written by José, Colombia and Chile have requested clarification to the IACtHR with regards to the differentiated obligations on human rights and climate change. Linking to the Court’s previous advisory opinion, that blog explains that climate change will only exacerbate the differentiated impacts on communities and that a differentiated approach is imperative to achieve climate justice. For that reason, precision on states’ obligations, especially in the framework of international law at the ICJ, will contribute to adopt a more global approach to a common but differentiated responsibilities at national and international level.
In addition, clarifying states’ obligations in the framework of the CBDR principle will be helpful to accelerate the decisions around adaptation and mitigation under the Paris Agreement (PA). Despite Article 9 of the PA stating that ‘developed country Parties shall provide financial resources to assist developing country Parties with respect to both mitigation and adaptation in continuation of their existing obligations under the Convention’, the reality shows a more relaxed and nuanced approach, allowing more ‘South-South or triangular climate cooperation.’
As eloquently explained by Lianne and Zoe in the blog of ITLOS advisory opinion, states have a due diligence obligation to ‘prevent dangerous anthropogenic interference with the climate system’, which in simple terms translates into the obligation to limit their GHG emissions through their nationally determined contributions (NDCs). Under the CBDR principle, it can be concluded that states must, given the surge of fossil fuel expansion, regulate corporations.
The clarity on states’ obligations will also give states enough ammunition to start regulating the corporate sector. While it is well known that around 100 corporations are responsible for 71% of the global emissions, states fail to regulate or limit the acts of these corporations. With the clarity on what states’ obligations are and what burden needs to be carried by whom, they will be able to adopt more robust and binding regulations. Both the Inter-American Commission on Human Rights and the IACtHR have interpreted environmental impact caused by private corporation to be a violation of international human rights law. In particular, the Court ‘considers that States have an obligation to supervise and monitor activities within their jurisdiction that may cause significant damage to the environment. Accordingly, States must develop and implement adequate independent monitoring and accountability mechanisms.’ While the existing environmental impacts seems to fulfill the due diligence requirements of many states, the IACtHR states in a previous advisory opinion that ‘[t]hese mechanisms must not only include preventive measures, but also appropriate measures to investigate, punish and redress possible abuse through effective policies, regulations and adjudication.’ While the IACtHR sets a great precedent to ensure effective regulation of private corporations in relation to climate change and human rights, it is imperative that this view is adopted at international level too.
Precautionary principle
The three advisory opinions could also serve as legal tools for climate adaptation and prevent loss and damage. Each advisory opinion seeks to clarify states’ obligations in the framework of climate change law or environmental law, which in turn is rooted in the precautionary principle. Thanks to the precautionary principle, expected and forward looking credible scientific evidence is enough to adopt precautionary policies. As advisory opinions carry great authority, despite not being legally binding, they can serve as a legal tool to accelerate climate adaptation and prevent loss and damage.
Intergenerational equity
As the representative of Costa Rica expressed when the UN General Assembly adopted the resolution to request an advisory opinion to the ICJ ‘’[t]hrough the resolution, the existential matter of climate change was addressed in an unprecedented context, … highlighting the importance of intergenerational equity.’’ While each year countries kick the can further down the road, avoiding responsibilities, current and future generations are the ones suffering the consequences of the decisions taken by their governments. To ensure intergenerational equity, responsibilities must be taken. The principles of equity, polluters pay and CBDR must be taken into consideration in decision-making processes as well as the voices of the youth that are crucial to the process. Intergenerational equity will not be achieved if young people are often sidelined and do not have a seat at the decision-making tables. Intergenerational justice and equity will require the incorporation of all the principles and recommendations mentioned in this blog series with a crucial addition of effective and genuine cooperation between young people and the leaders of the world.
Future generations: there is hope on the horizon
The first blog of this series by Manon Rouby introduces us to the world of the three advisory opinions. While the second blog by Elisa Granzotto sets the paradigm of the ICJ advisory opinion with its challenges and opportunities, the third blog by Lianne Baars and Zoe Nay shows the importance and the urgency to link the law of the sea to climate change law. The fourth and last blog by José Daniel Rodriguez Orue in turn explains the importance and potential of a forward-thinking progressive regional advisory opinion, as ‘[t]he answers to the questions have significant implications for establishing specific human rights standards that may guide a regional response to climate change.’ Although the three pieces differ in their topic, they commonly point to the following: there is a stronger climate movement that gives hope on the horizon because it is backed and fought for by youth and civil society, in combination with the existing international laws, treaties, covenants guidelines and thousands of national lawsuits. The power of youth and civil society, like newer initiatives such as the call for a Pan African Advisory Opinion, shows that this is just the beginning. The clarity on states’ obligations will make it very hard to keep the status quo in climate action, in particular, the reluctance to act at the international, regional and national level. In the end, having cross jurisdictional perspectives on the climate crisis and on what states’ obligations are, will cement consensus on the scientific evidence of climate change, and states will have no choice but to act.
Sumeyra Arslan is a law graduate with a background in international law and international human rights law. She has an expertise in climate change and human rights, and has done extensive research on various topics including right to remedy, right to information and climate responsibility of private actors. She currently works for Friends of the Earth Netherlands and functions as a legal advisor on the Advisory Board of Fossielvrij NL.
Sumeyra is a member of the Academic Taskforce at World’s Youth for Climate Justice – 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.