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‘Advisory opinion on climate change needed’ from ICJ
The Vanuatu government is seeking an advisory opinion on climate change and human rights from the International Court of Justice (ICJ); if successful, the outcome could have significant legal implications for every United Nations country.
Jess Feyder
Existing international agreements have not provided countries with legal clarity on their responsibilities to reduce emissions, and this has led to inaction, said Pacific Island Students Fighting for Climate Change, an organisation leading the effort.
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An advisory opinion from the highest court in the world would define exactly what targets existing bodies of laws nations should follow and help build a critical global coalition, uniting governments and international institutions in the battle against climate change, they said.
Advisory opinions have been instrumental in establishing international laws, such as on the right to self-determination, the prevention of genocide, and nuclear disarmament, they said.
An advisory opinion is not legally binding, but it carries great legal and moral authority and would encourage all nations to protect the human rights of people affected by climate change.
The exact text of the resolution that will be put forward for referral to the ICJ is expected to be published on 27 October.
“In essence, it will ask the court to advise on the obligations of nations in relation to climate change and human rights,” said Katrina Bullock, general counsel at Greenpeace Australia Pacific.
For the ICJ to form an advisory opinion, the UN General Assembly must request an advisory opinion on climate change and human rights, which would take a majority vote from UN member states.
Over the next few months, Greenpeace will work with the Vanuatu government, the World’s Youth for Climate Justice (WYCJ) and a number of other civil society organisations to build momentum and pressure governments to vote “yes” to the referral.
While this campaign is being led by youth from the Pacific, it has significant legal implications for every United Nations country, said Ms Bullock. This includes:
- Integrating climate law and human rights law;
- Providing a baseline for state action;
- Guiding local, regional, and international adjudications;
- Cementing consensus on the science behind climate change;
- Leading to more ambitious action under the Paris Agreement;
- Centring and elevating Global South and Pacific voices — which is critical given the vulnerabilities of Pacific islands peoples to climate change impacts, which they have not caused.
Daniel Bodansky, law professor, author, and international climate law researcher, discussed whether an advisory opinion on climate change could make a difference where climate diplomacy has failed and discussed its potential added value.
An advisory opinion can establish clear standards for climate action and climate justice benchmarks, he said, which may be used in contentious adjudication.
The opinion could bring legal clarity to and progress in international diplomatic endeavours, for example, concerning the contours of states’ due diligence obligations to ensure that their greenhouse gas emissions do not cause serious damage to other states, he said.
An advisory opinion could set the terms of the debate, provide evaluative standards, and establish a framework of principles to develop more specific norms, Mr Bodansky said.
Ultimately, it could shape public consciousness and define expectations for a broad variety of actors for their direct influence on other countries and states, he said.
The UN General Assembly vote is expected to happen between December 2022 and February 2023.
