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Symposium: Climate Justice in International Courts: Working Towards a Livable Future

The Role of International and Regional Courts in Future-proofing Environmental Jurisprudence Through Advisory Opinions

by Manon Rouby
Published on 1 August 2023

Introduction

The latest IPCC report reiterated its alarming message. Climate impacts on people and ecosystems are more widespread and severe than expected and future risks will escalate rapidly with every fraction of a degree of warming. The window to act is closing rapidly, and the need to act has never been more urgent. The three recent advisory opinions sought before international and inter-regional judicial bodies (see below) are the perfect example of such criticality.

In December 2022, the Commission on Small Island States requested an advisory opinion on climate change and the law of the sea from the International Tribunal of the Law of the Sea (ITLOS) under the United Nations Convention on the Law of the Sea (UNCLOS). Later, in January 2023, the governments of Chile and Colombia requested the Inter-American Court of Human Rights (IACtHR) for an advisory opinion under the American Convention on Human Rights to clarify States’ human rights obligations vis-à-vis the climate emergency. Finally, the government of Vanuatu, on behalf of a core group of States put forward a resolution, which was adopted in March 2023 by the United Nations General Assembly (UNGA), requesting an advisory opinion from the International Court of Justice (ICJ).

The recent requests and initiatives for advisory opinions on climate change have initiated a discussion on the contribution of international courts to pave the future of International Environmental Law—and is the focus of this symposium. While each court’s response will vary based on its jurisdiction and interpretation of international treaties and customary law, this triptych of cases happening simultaneously is not a coincidence and certainly a call for an answer to the need to clarify the States’ obligations and a sign of hope of the future of International Environmental Law. The symposium authors, as representatives of the World’s Youth for Climate Justice, highlight what the youth can and should expect to emerge from these advisory opinions.

The Triptych of Advisory Opinions, an unprecedented situation

While this is not the first case on human rights and the environment, these three Courts of law have yet to deal with any climate change case. This situation is unprecedented and illustrates the momentum for the Courts to take a position on this global threat. It is important to note that these Courts have different jurisdictions, which translate into different potential outcomes. Much also depends on the questions asked. Firstly, with the advisory request from the ICJ, the Court can give an opinion on ‘legal questions’ at the request of ‘whatever body may be authorised under the Charter of the United Nations’. In this ICJ request, the UNGA has asked two questions to the ICJ. The first asks the Court to identify the legal obligations of States (…); the second, which is divided into two sub-questions, asks the Court to specify the legal consequences of a breach(es) of these legal obligations by acts or omissions that cause significant harm to the environment (…).

Secondly, regarding the ITLOS case, Article 138 of its Rules states that ITLOS may receive advisory requests from ‘whatever body authorised by or in accordance with the agreement’. Article 21 of the ITLOS Statute establishes its jurisdiction ratione materiae, ‘all disputes and all applications submitted in accordance with this Convention and all matters specifically provided for in any other agreement’. In this request, the questions strive for clarification on States’ obligations under the UNCLOS to prevent, reduce and control pollution of the marine environment inducing worsening climate change as well as States’ obligations.

Thirdly, in the case of the IACthR, pursuant to Article 62.3, the IACtHR has jurisdiction over matters related to the interpretation or application of the 1969 American Convention on Human Rights. Article 64.1 of the Convention allows the Member States to request an advisory opinion for the interpretation of the Convention or other treaties related to the protection of human rights. In this case, the governments of Chile and Colombia requested the clarification of six aspects concerning States’ human rights obligations linked to the climate emergency under Article 70 of the Rules of Procedure of the Court. More precisely, the questions relate to due diligence, the right to life, children’s rights, procedural rights, environmental defenders, and common but differentiated responsibilities.

The Interpretation of International (Environmental) Law

If provisions clearly set out different jurisdictions and questions, there are commonalities between these advisory opinions. For instance, they all share a non-binding nature, the reflection that climate change does not know boundaries and that these conventions need to be interpreted in light of International Environmental Law obligations. Furthermore, while acknowledging the difference in jurisdictions and questions asked, one potential major outcome would be the interpretation of existing International Environmental Law in the context of climate change adaptation and mitigation. Especially considering the legal weight usually attributed to advisory opinions.

However, it is also necessary to acknowledge that the outcome of such proceedings depends not only on asking the right question but also on the unpredictability of the Court’s rulings. Furthermore, these triple cases on similar issues raise the issue of fragmentation of International Environmental Law. For instance, this could happen in the case of the Courts delivering different interpretations of Climate Change Law and the States’ obligations. These requests may lead to varying interpretations of the same treaties, such as UNCLOS, the UN Framework Convention on Climate Change (UNFCCC) and the Paris Agreement, Human Rights Conventions as well as any other relevant treaties that govern the questions.

Yet, the intersectional nature of climate change and its impacts are also perfectly reflected by these multiple requests. It, therefore, only makes sense that Courts specialised in different areas of law take a position on the issue of climate change and interpret climate change law given the invariable impact of it within their jurisdictions. Additionally, in light of the phenomenon of cross-fertilisation of finding between two institutions, which is highly perceptible in international judgments, these requests could complete one another. Thus, it can be argued that whichever Court issues its decision first, it could be taken into consideration by the others in delivering their decisions.

Moreover, the fact that three advisory opinions have been requested in front of three international tribunals first raises the profile of climate change in the legal sphere but also showcases the interest of the international community in these questions. Besides the potential outcomes of such requests, ‘the specific issues but also the statements, the opinions and materials that are used in one proceeding, will be a reservoir of information for lawyers to use in other proceedings’. Furthermore, these three requests happening simultaneously also allows for more questions to be asked with more advisory opinions from all Courts, with potentially more answers, keeping in mind that the answers are at the discretion of the Courts.

The possibility of strengthening climate adaption

Depending on the jurisdiction of the concerned Court, such advisory opinions could be used as a legal tool to strengthen climate adaptation. In other words, considering that each advisory opinion is asking for ‘clarification on state obligations’ which roots back to International Environmental Law principles, it is hoped that these advisory opinions also clarify States’ obligation to adapt to climate change. Indeed, if progressive enough, such advisory opinions could influence States and other stakeholders to enhance the implementation of climate policies preventing harm to the environment and not only mitigating the effects of climate change.

The potential future of youth

When dealing with climate justice and a human rights-based approach, ‘young people are playing a fundamental role in driving climate change accountability in both formal and informal settings.’ (G. Gasparri et.al. p.100) Several international treaties recognize that environmental preservation is an obligation owed to present and future generations alike. For instance, the UNFCCC provides that States Parties should ‘protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities.’ As such advisory opinions carry substantial legal weight in the development of International Law and considering the wide-ranging impacts of climate change, it is therefore likely that such principles, directly impacting the youth, will be considered by at least one of the Courts. More precisely, there is hope that these advisory opinions will address the role of the principle of intergenerational equity in responding to climate change. Following such principle, the ‘current generation—especially its leaders and lawmakers—have to consider the needs and interests of youth, children and future generations when making decisions and taking action’.

Conclusion
As the impacts of climate change are becoming increasingly important, the need for climate justice is also more and more urgent. ‘International courts and tribunals have a critical role to play in addressing this need’, as showcased by these three advisory opinion requests. The unprecedented nature of climate change reflected in these proceedings opens the paths to new horizons for impacted communities.

As Vanuatu’s Ambassador Odo Tevi rightfully said, an advisory opinion on climate change is ‘an idea whose time has come’. The three simultaneous requests are the testimony of a need at the international level and regional of climate justice and legal clarity. The questions of whether or not these requests will answer this need are crucial to the debate and this series of blog posts is a contribution to the discussion.

Manon Rouby is a Policy Officer at Pesticide Action Network Europe. She is an international environmental law lawyer and graduated with an LLM in International Environmental Law and Governance from Strathclyde University Glasgow and with a Master’s in International and European Environmental Law from Aix-Marseille University. She has been working with the 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 – since April 2021 as a legal researcher within the Academic Taskforce.