The potential for the World Court to address climate justice: COP26 as an opportunity to raise the ICJ Advisory Opinion with World Leaders
2021-12-09

*Risking to state what is already more than obvious*  Climate change impacts the human rights of people and communities globally today and significantly threatens our collective ability to enjoy our human rights tomorrow. 

Increasingly the connection between climate change and human rights is drawn by stakeholders and several state parties. One example is the positive vote by the UN Human Rights Council on Friday, 9th of October recognizing the right to a healthy environment. Unfortunately this is still largely incidental, academic and theoretical. We are yet to see an authoritative declaration by the world’s highest court clearly establishing the link between climate change and human rights, and consecutively to human right obligations. 

Within the UNFCCC regime, various stakeholders and organizations organizing around climate justice have advocated for a human rights based approach to be adopted. The world’s youth is seeking to align with fellow civil society organizations and frontline communities in order to amplify the call for an Advisory Opinion from the International Court of Justice on climate change and human rights. We look to state parties and their teams, to recognize the inherent link between climate change and human rights and for this recognition to guide their negotiating position at COP26 in Glasgow. 

Young generations around the world are advocating for more ambitious and urgent climate action, including young people from the Pacific who are acting as resilient and optimistic activists for a stable and inhabitable planet for future generations. The Pacific Island Students Fighting Climate Change (PISFCC) are a group of youth from several Pacific Island countries advocating for the use of the international legal system to achieve these ends. They were the driving force behind the recent announcement by the government of Vanuatu, that the state will ask the UN General Assembly to request an Advisory Opinion on climate change and human rights from the International Court of Justice (ICJ). This would be an opportunity for the ICJ to issue a progressive Advisory Opinion that would cement consensus on the scientific evidence of climate change, provide guidance for domestic and regional courts to adjudicate climate cases, and to integrate human rights and environmental law. 

This article will explore whether the ICJ is indeed likely to issue an Advisory Opinion with such outcomes by examining past cases and analysing the relevant literature. First, the background of the request for an ICJ Advisory Opinion will be examined. Then, each of the claims of the potential positive impact of an Advisory Opinion by the ICJ will be explored before the paper concludes with a brief reflection on the potential for an ICJ Advisory Opinion to achieve global progress on climate justice.

Background on the request for an ICJ Advisory Opinion on climate change 

How to request an ICJ Advisory Opinion 

The purpose of the ICJ advisory jurisdiction is‘not to settle – at least directly – disputes between States, but to offer legal advice to the organs and institutions requesting the opinion’.  Advisory Opinions are not legally binding upon States, nor the community of States, and do not have a res judicata effect.  Pursuant to Article 96 of the UN Charter, the General Assembly (UNGA) and the Security Council may request an ICJ Advisory Opinion by adopting a resolution to that effect. Other UN organs and specialized agencies which are authorized by the UNGA may also request an Advisory Opinion.  In the UNGA, each UN Member State is represented, and each State has one vote. The resolution for an ICJ Advisory Opinion must be adopted with a simple majority of votes. Pursuant to Article 65 of the Statute of the International Court of Justice, the Court may give an Advisory Opinion on any legal question. If the question is not legal in nature, the Court may decline jurisdiction. This has happened only once before in 1996. 

The 2011 initiative for an ICJ Advisory Opinion on climate change 

In 2011, global consensus on greenhouse gas reduction seemed a distant dream for many vulnerable nations, including for the Republic of Palau and the Republic of the Marshall Islands. Just two years before, the meeting of the United Nations Framework Convention on Climate Change (UNFCCC) in Copenhagen in 2009 had failed. As a result, the climate-vulnerable Pacific Island States of Palau and the Marshall Islands were determined to use other international fora to further climate action. Mr. Johnson Toribiong, President of the Republic of Palau declared in his address to the UN General Assembly in September 2011: 

Palau and the Republic of the Marshall Islands will call on the Assembly to seek, on an urgent basis and pursuant to Article 96 of the Charter of the United Nations, an advisory opinion from the International Court of Justice on the responsibilities of States under international law to ensure that activities emitting greenhouse gases that are carried out under their jurisdiction or control do not damage other States. [...] It is time we determined what the international rule of law means in the context of climate change. The International Court of Justice is mandated to do just that.

Palau’s and the Marshall Islands’ efforts did not reach the stage of formal negotiations at the UNGA, but in the following decade their initiative has inspired academics and youth activists to explore the potential for an ICJ Advisory Opinion on climate change. The Paris Agreement has now established a framework for international mitigation and adaptation efforts. Therefore, the PISFCC are focusing their advocacy efforts on climate justice and in particular on the human rights-based framework for climate action. Despite hard work by some parties to the UNFCCC as well as by civil society, human rights are not anchored strongly in the operational text of the Paris Agreement. PISFCC seeks to bridge that gap. PISFCC has continued to emphasise the importance of the inclusion of the principle of intergenerational equity in the draft version of the legal question.

Cementing consensus on the scientific evidence of climate change 

Status of climate change science in the courtroom 

The most authoritative and well-known reports on the science of climate change are published by the Intergovernmental Panel on Climate Change (IPCC). Since 1990, the IPCC has produced several assessment reports, but only in its 2007 report did the IPCC state definitively that the changes in the earth’s atmosphere were caused by human activity. One of the most well-known IPCC reports is the Special Report on Global Warming of 1.5ºC, which the Conference of the Parties (COP) invited the IPCC to produce at the adoption of the Paris Agreement. Some have been questioning and criticising the extent to which the IPCC is policy-driven rather than science-driven. Nonetheless, the IPCC Special Report was widely accepted and is often used as scientific backing for a more ambitious climate action regime.  

Despite this acceptance, some local and national courts seem hesitant to get involved in climate change cases, courts might shy away from this contentious topic, deferring to their lack of expert knowledge and resulting lack of legitimacy. The competence of judges and their legitimacy to rule on climate cases is questioned frequently. 

How the ICJ has dealt with ‘science’ in the past 

The ICJ judges in general have been conscious of their limitations on specific technical expertise. Nonetheless, the ICJ has indicated that it does not shy away from examining scientific claims. In the contentious Whaling case in the Antarctic between Australia and Japan, with New Zealand interfering, the ICJ went into the science of the activity of whaling. Australia contended that, in violation of the Convention on the Regulation of Whaling (ICRW), Japan was engaging in commercial whaling activities. Japan contended that it engaged in whaling for scientific research, which constitutes an exemption from the general moratorium under the ICRW. In determining the legality of Japan’s actions, the Court defined ‘for the purposes of scientific research’ and by doing so affixed a legal meaning to both ‘science’ and ‘research’. This demonstrates that the Court is not afraid to examine scientific aspects of a case  if needed and to affix legal status to scientific concepts. In addition, the Court has allowed for extensive written and oral submissions in contentious cases in the past concerning the delimitation of the continental shelf. Nonetheless, the Court stated clearly that they do not settle disagreements between ‘scientists of distinction as to the more plausibly correct interpretation of apparently incomplete scientific data.’ 

Climate science and an Advisory Opinion 

US Supreme Court Justice Stephen Breyer explained in his opinion on the breadth of the US federal public trust doctrine (a key legal issue in a number of strategic climate cases including Juliana v. U.S.); judges are ‘generalists’ and must therefore rely on legal scholars and practitioners to inform the Courts’ understanding of how to interpret and apply the law in relation to shifting global circumstances. The phase during which the ICJ hears evidence submitted by states in the process of deliberating the legal question requested by the UN General Assembly offers an opportunity for the IPCC reports to be given a ‘non-political’ stage and to be admitted to the Court as the best available evidence on climate change. This can send a strong signal to national courts to accept the IPCC reports not as political arguments raised by civil society organisations, but rather as technical evidence clarifying the scientific developments at hand. In an Advisory Opinion on human rights and climate change, the Court would not be asked to settle any competing scientific claims when it comes to the general understanding of climate change. The Court could, however, contribute to the legal understanding of the scientific findings, as it has done in the Whalingin the Antarctic case. The Court’s role in examining scientific evidence which establishes causality and responsibility for environmental damage is beyond the scope of this article. However, cases such as the Pulp Mills case have demonstrated that the Court is willing to consider concepts drawn from environmental law.

The PISFCC are hoping  the ICJ will use an  Advisory Opinion to cement the consensus on climate science. The ICJ is becoming more engaged with the scientific aspects of environmental harm. Furthermore, as a result of the broad consensus among environmental and climate change scientists the Court would not be tasked with settling any competing scientific claims. The Court could, however, provide guidance on how to interpret climate change science to help establish legal responsibility. 

Providing guidance for domestic and regional courts 

Climate litigation is a growing area of legal, social and political interest; and an increasing number of climate cases are based on human rights law. Human rights and the law concerning climate change have historically been treated separately by academia and the courts. However, increasingly, non-state actors are drawing the connection in the hope to increase accountability of states (as well as private organisations) with regards to mitigation efforts. The recent judgement of Germany’s constitutional court in Neubauer, et al. v. Germany is one of the current successful examples of where plaintiffs succeeded with human rights arguments.In Human Rights Law there is a high threshold for an act to constitute a violation of human rights, this poses a challenge to domestic and regional climate litigation initiatives. A recent example of this difficulty  is the rejection by the Court of Justice of the European Union of the European People’s Climate Case at first instance due to the insufficient standing of the plaintiffs. In order to allow for more effective remedies for those who have been and will (continue to) be affected by the consequences of climate change, the nexus between climate change law and human rights law must be recognised. An ICJ Advisory Opinion could take a first step in this direction and invite national courts to follow suit when presented with such cases. Decisions in the Dutch Urgenda case, the recent vote by the UNHRC and the Advisory Opinion from the Inter-American Court of Human Rights from 2018 indicate that there are “pathways opening in international law towards overcoming previous jurisprudential roadblocks.” An ICJ Advisory Opinion could clarify international legal obligations of states and hence assist them when confronted with national and regional climate change-related cases and challenges. National courts could also use the guidance provided by the principal judicial organ of the United Nations with regards to their relationship with scientific evidence on climate change.

Conclusion 

Achim Steiner, Executive Director of UN Development Program, remarks ‘While the United Nations and national governments acknowledge that climate change and the responses to it can impact on human rights, there is less agreement on the corresponding obligations of governments and private actors to address this problem.’ The ICJ, as a Court with general jurisdiction, contributes to the development of international law. As illustrated above, the ICJ has the ability to meaningfully contribute to the development of the status of climate science in litigation and can provide guidance to domestic and regional courts. As QC Philippe Sands puts it, the ICJ is ‘a purveyor of legitimacy’. The influence of the Court reaches far beyond the letters of its judgement and an Advisory Opinion on climate justice may encourage a rights-centred approach to climate action whilst giving a voice to those facing the brunt of the climate crisis.

 

[1] UNFCCC, ‘Young People are Boosting Global Climate Action’(UNFCCC, 12 August 2020) Available at  https://unfccc.int/news/young-people-are-boosting-global-climate-action accessed 8 May 2021.

[2] Legality of the Threat or Use of Nuclear Weapons [1996] ICJ (ICJ) 236. Available at  https://www.icj-cij.org/en/case/95 .

[3] See further Teresa F. Mayr and Jelka Mayr-Singer, ‘Keep The Wheels Spinning; The Contributions Of  Advisory Opinions Of The International Court Of Justice To The Development Of International Law’ (2016)  76 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht. Available at:  https://www.zaoerv.de/76_2016/76_2016_2_a_425_450.pdf.

[4] United Nations, Charter of the United Nations, (24 October 1945)  UN Doc 1 UNTS XVI.

[5] Rule 85, Rules of Procedure of the General Assembly, (2008)  UN Doc A.520.Rev.17 .

[6] Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion (n 2) 66.

[7] David Freeman, ‘The United Nations Framework Convention On Climate Change – The Basis For The  Climate Change Regime’, The Oxford Handbook of International Climate Change Law (Oxford University  Press 2016) (Freestone 2016).

[8] th plenary meeting of the sixty-sixth session of the General Assembly of the United Nations (22  September 2011), UN Doc A/66/PV/.16.

[9] Freeman (n 7)  98.

[10] Decision 1/CP.21, (29 January 2016),  UN Doc FCCC/CP/2015/10/Add.1,  Para. 21.

[11] See Jaap C. Hanekamp and Lucas Bergkamp, ‘The ‘Best Available Science’ And The Paris Agreement  On Climate Change’(2016) 7 European Journal of Risk Regulation, 43.

[12] Lucas Bergkamp & Jaap C.Hanekamp“criticiz[e] decisions by Dutch court to impose national limits on  greenhouse gas emissions as contrary to a “court’s role in a constitutional democracy”. Cited by Daniel

 Bodansky, ‘The Role of the International Court of Justice in Addressing Climate Change: Some

 Preliminary Reflection’(2017) 49 Ariz St LJ 68

[13] David Anderson, ‘Scientific Evidence In Cases Under Part XV Of The LOSC’, Law, Science & Ocean  Management (Martinus Nijhoff Publishers 2007).

[14] Katalin Sulyok, Science And Judicial Reasoning (Cambridge University Press 2020).

[15] Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening) [2014] ICJ Report  16  R. Caddell, ‘Science Friction: Antarctic Research Whaling And The International Court Of Justice’  (2014) 26 Journal of Environmental Law.

[16] Continental Shelf (Libyan Arab Jamahiriya/Malta) [1985] ICJ Reports. (Libya/Malta); Continental Shelf  (Tunisia/Libyan Arab Jamahiriya) [1982] ICJ Reports.

[17] Libya/Malta, Judgement, para. 4.

[18] ‘Making The [In]Visible Powerful: Leveraging Climate Visuals In Courts’ (OpenGlobalRights, 2021).

 Available at  https://www.openglobalrights.org/making-the-invisible-powerful-leveraging-climate-visuals-in-courts/?lang  =English accessed 11 April 2021.

[19] See also Makane Moïse Mbengue and Rukmini Das, ‘The ICJ’S Engagement With Science: To  Interpret Or Not To Interpret?’(2015) 6 Journal of International Dispute Settlement.

[20] See the 1997  Gabcikovo-Nagymaros Project Case  and the 2010 Pulp Mills Case between Argentina  and Uruguay.

[21] Webinar hosted by the British Institute of International and Comparative Law (BIICL) on

 March 12 2021. Accessible at  https://www.youtube.com/playlist?list=PLrRqwcJCpBFHDTkFlVgMr-_wxyzY7PtLk . 

[22] Valentina Jacometti, ‘Climate Change Litigation: Global Trends And Critical Issues In The Light Of The   Urgenda 2018 Decision And The IPCC Special Report“Global Warming Of 1.5 °C”‘ (2019) 20 Global

 Jurist.

[23] See https://www.bundesverfassungsgericht.de/ SharedDocs/Pressemitteilungen/EN/2021/bvg21-

[24] .html .

[25] Sumudu Atapattu and Christopher CampbellDuruflé,‘The Inter-American Court’s Environment and

 Human Rights AdvisoryOpinion: Implicationsfor International Climate Law’, 8 Climate Law 321 (2018).

[26] For example in the Male Declaration (2007) and Cancun Agreement (2010).

[27] UNEP and Sabin Center for Climate Change Law (Columbia Law School), 'Climate Change And

 Human Rights' (United Nations Environment Programme 2015) Available at  https://web.law.columbia.edu/sites/default/files/microsites/climate-change/climate_change_and_human_ri  ghts.pdf  accessed 24 November 2020, 8.

[28] Philippe Sands, ‘Climate Change And The Rule Of Law: Adjudicating The Future In International Law’  (United Kingdom Supreme Court, 2015).

Published by School of Law, University of Aberdeen

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