Prof Jacqueline Peel and Zoe Nay from the University of Melbourne discuss the potential outcomes of the UN’s recent decision to support calls for an advisory opinion from the International Court of Justice regarding states’ legal obligations to protect the climate.
The United Nations has just backed a landmark resolution on climate justice.
Last week, the UN General Assembly supported a Pacific-led resolution asking the International Court of Justice (ICJ) to provide an advisory opinion on a country’s climate obligations.
This has been hailed as a “turning point in climate justice” and a victory for the Pacific youth who spearheaded the campaign.
But what does this UN decision actually mean? Does an advisory opinion from the ICJ have any teeth? And what might be the legal consequences for rich countries that have contributed the most to the climate problem?
What is an ICJ advisory opinion?
The ICJ is the world court and the leading global authority on international law. It generally hears disputes between countries known as “contentious cases” such as the 2010 case brought by Australia against Japan over whaling in the Southern Ocean. In that case, the court ruled in Australia’s favour.
However, the ICJ can also issue advisory opinions. This is a kind of general advice on the status of international law on a particular topic. Opinions must be requested by one of the organs or specialised agencies of the UN, such as the General Assembly.
On March 29, the UN General Assembly resolved to seek an ICJ advisory opinion on the obligations of states with respect to climate change. That was based on draft text put forward by the tiny Pacific nation of Vanuatu.
Significantly, this resolution was co-sponsored by 105 states. It’s the first time the General Assembly has requested an advisory opinion from the ICJ with unanimous state support.
The question put to the ICJ asks whether countries have an obligation to protect the global climate system. It also seeks advice on the “legal consequences” when countries’ actions or omissions cause significant climate harm to small island states and future generations in particular.
The UN will communicate the resolution to the ICJ in the coming weeks and the court will then organise hearings over the next few months. It’s expected an advisory opinion will be issued six to 12 months later.
A win for the Pacific
The adoption of the advisory opinion resolution represents an important milestone in a long-running fight by Pacific small island nations and youth activists to secure climate justice.
For these communities, climate change is already causing or exacerbating harm to natural and human systems. Indeed, only a few weeks before the UN General Assembly decision, a rare double cyclone event ripped through Vanuatu.
Faced with these threats, Pacific nations like Tuvalu and Palau have previously publicly discussed options for seeking a ruling from the ICJ. These efforts met with stiff resistance from major emitting countries, which eventually saw the proposals shelved.
Renewed efforts began in 2019 with 27 law students from The University of the South Pacific forming Pacific Islands Students Fighting Climate Change.
The students worked with the Vanuatu government to launch a new campaign for a General Assembly resolution on climate change and human rights.
Introducing the resolution, Vanuatu’s prime minister Ishmael Kalsakau stated: “This is not a silver bullet, but it can make an important contribution to climate action, including by catalysing much higher ambition under the Paris Agreement.”
For student campaigners like Cynthia Houniuhi, it means “an opportunity to do something bigger than ourselves, bigger than our fears”.
What might the ICJ advisory opinion deliver?
Advisory opinions issued by the ICJ are – as the name suggests – advisory. They are not legally binding on any country or on the General Assembly. So, this climate advisory opinion will not establish the accountability of particular countries for climate harms, nor deliver compensation to vulnerable nations like Vanuatu.
Nonetheless, the authority of the world court means its advisory opinions matter in shaping how countries understand their international obligations.
There is an opportunity with this opinion to cement emerging links between climate harms and human rights, which could open up new avenues for litigation either domestically or internationally.
Already there are several new climate rights cases underway, with the European Court of Human Rights hearing its first two climate cases (against Switzerland and France) on the same day the advisory opinion resolution was adopted.
The ICJ opinion could also provide an extra incentive for countries to re-examine and strengthen their national emissions reduction targets, to make sure they are compliant with the Paris Agreement.
As the new fund for climate-related loss and damage takes shape at this year’s international climate meeting (COP28 in Dubai), negotiators may be thinking about how the rules they are crafting could complement the ICJ opinion.
A turning point for climate justice?
For many advocates the success of the ICJ advisory opinion campaign heralds the beginning of a new era in the quest for climate justice.
By asking the world court to bring its authoritative voice to this issue, campaigners like the Pacific students’ group seek to make a difference. They hope to ease the path to holding polluting countries accountable for climate harms and help ensure vulnerable communities receive the resources they need to realise a better climate future.
Other voices urge a more cautious approach. The ICJ, for example, does not have much expertise in human rights – with the notable exception of recently appointed Australian judge Hilary Charlesworth.
With judges drawn from several major emitting states, the court may be reluctant to intervene decisively on such a highly charged political question. Courts are generally followers, not leaders, of social movements.
Nonetheless, the confluence of dire warnings from climate scientists in the latest report of the Intergovernmental Panel on Climate Change, proliferating climate protests and litigation around the world, and the accelerating occurrence of climate harms like last year’s massive floods in Pakistan may just yield a moment in history – one where the world court steps forward to put its thumb on the scales in favour of the cause of climate justice.
By Prof Jacqueline Peel and Zoe Nay
Prof Jacqueline Peel is director of the Melbourne Climate Futures research centre at the University of Melbourne. She is a leading, internationally recognised expert in the field of environmental and climate change law.
Zoe Nay is a PhD candidate with Melbourne Law School and the Climate Futures research centre at the University of Melbourne. Her doctoral research examines the legal issues related to state responsibility for loss and damage associated with the adverse effects of climate change in Pacific small island developing states.
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