The Peace Palace, seat of the International Court of Justice in The Hague, Netherlands. Photo: un.org
A group of 16 countries has launched a heroic effort at the United Nations (UN) to fight the problem of climate change – a potential threat to human civilization. led by Vanuatu – an island country in the South Pacific Ocean – group seeks an advisory opinion from the International Court of Justice (ICJ) on the issue of climate change.
The ICJ has two types of jurisdiction: contentious and advisory. While contentious jurisdiction refers to resolving legal disputes between consenting states, under consultative jurisdiction, the United Nations General Assembly (UNGA), the Security Council (SC) and other specialized bodies of the organization consult the ICJ for opinion on legal questions. You can request from Unlike judgments delivered under contentious jurisdiction, the ICJ’s advisory opinions are non-binding. Nevertheless, they carry normative weight and clarify international law on a relevant issue. The ICJ’s advisory opinions on climate change will also serve in climate litigation at the national level.
Vanuatu Initiative
Despite the presence of several international legal instruments on climate change such as the United Nations Framework Convention on Climate Change, the Kyoto Protocol and the Paris Agreement, the international community has failed to provide concrete solutions to the problem of climate change.
The recently concluded 27th United Nations Climate Change Conference (COP-27) where countries failed to narrow their differences on important issues such as reducing greenhouse gas emissions, completely demonstrated the coming together of the international community on the issue of climate change. Example of failure to act.
Small Island Developing (SID) states such as Vanuatu are most vulnerable to rising temperatures and sea levels. Accordingly, in September 2021, Vanuatu launched an initiative to seek, through the UNGA, an advisory opinion from the ICJ to “clarify the legal obligations of all countries to prevent and redress the adverse effects of climate change”. Since then, the initiative has gathered momentum with reportedly more than 100 countries supporting the idea.
legal question
In particular, the draft resolution prepared by Vanuatu asks the ICJ to answer the following questions.
First, what are the international legal obligations of countries to protect the climate system from anthropogenic emissions of greenhouse gases for present and future generations? Expectedly in answering this question, the ICJ will not only interpret and clarify existing international climate change law contained in various international environmental treaties, but also, as many scholars argue, apply common and customary international law (CIL). also does to fill in the gaps. These treaties. Thus, the ICJ can use the ‘no-harm’ principle (states are under an obligation that activities within their jurisdiction do not harm other countries) – a key part of CIL – in light of the ambiguous provisions of the Paris Agreement to put.
Second, given these international legal obligations, what are the legal consequences for states causing significant damage to the climate system, SID states, and others in present and future generations? The question seeks to determine the price that states must pay for not respecting their international legal obligations on climate change. As part of climate justice, there has been a long-standing demand for climate compensation, that is, rich countries that have historically caused maximum greenhouse gas emissions should give developing countries the brunt of climate change. Should be compensated.
At COP-27, while it was agreed to set up a “Loss and Damages Fund” to financially assist vulnerable developing countries, there is little clarity on which countries will provide the money. Furthermore, the relationship between the historical responsibility of developed countries in financing and emissions is still to be determined. In this regard, the ICJ’s answer to the second question may elaborate further on the legal principles that may help govern the operation of the ‘Loss and Damages’ Fund.
Role of ITLOS
It is not only the ICJ whose advice is being sought. The Small Island States Commission on Climate Change and International Law, which includes countries such as Antigua and Barbuda and Tuvalu, has sought an advisory opinion from the Hamburg-based International Tribunal for the Law of the Sea (ITLOS). ITLOS has been requested to set out specific obligations of countries under the United Nations Convention on the Law of the Sea to prevent, control and abate pollution of the marine environment. The challenges of ocean warming, sea level rise and ocean acidification are all related to the marine environment.
These advisory opinions are not a panacea. They can also become a double edged sword depending on the decision given. Nonetheless, the role of international courts should be welcomed, as part of a multi-pronged approach to saving our planet. Developed countries and groupings like G-20 should support these laudable initiatives of SID states. Environment and climate sustainability are important topics of the G-20. India as the Chair of the G-20 should lead the way by continuously pushing for the LiFE (Evolve Environment Friendly Lifestyle) campaign.
Prabhash Ranjan is Professor and Vice Dean of Jindal Global Law School, OP Jindal Global University