Vanuatu announced in September 2021 that it plans to seek an advisory opinion from the International Court of Justice (ICJ) on the rights of present and future generations to be protected against the adverse effects of climate change. This is not the first time that Vanuatu or other Pacific States have mooted the idea of a UN General Assembly resolution requesting an ICJ advisory opinion on climate change. Under the UN Charter, the General Assembly may request the ICJ to give an advisory opinion on any legal question of concern to the international community.
To put this campaign in context, the latest UNEP Emissions Gap Report finds that new and updated Nationally Determined Contributions (NDCs) only take 7.5% off predicted 2030 emissions levels. This puts the world on track for a global rise in temperatures to 2.7°C, well above the Paris Agreement goal. Clearly more needs to be done. COP26 in Glasgow offers the prospect of greater ambition. But could an advisory opinion assist in driving the reduction of greenhouse gas emissions? What will an advisory opinion seek to achieve? Can these goals be achieved through other means? What will be the impact of an advisory opinion, particularly on the ongoing negotiation process among the parties to the Paris Agreement to adopt ambitious NDCs? Can it assist, or will it constrain States from being more ambitious in their reduction of emissions?
While posing these questions, I wish to survey the advantages and disadvantages of seeking an ICJ advisory opinion in order to inform that debate. In doing so, I suggest that it will be more productive to shift the perspective to one which seeks to bring about changes in States’ behaviour.
Advantages of pursuing an ICJ advisory opinion
An advisory opinion is distinct from contentious, bilateral, dispute settlement which seeks to assign responsibility for a State’s wrongful actions. It enables the UN General Assembly to request the Court to give its opinion on a legal issue. In giving advice, rather than issuing a judgment, it is more in keeping with the non-adversarial and non-punitive approach to compliance in the Paris Agreement.
A second advantage is that it would allow a range of States to present their views on the relevant international legal rules and principles. This is appropriate where the issues relate to the collective interests of States in the interpretation and application of obligations relating to climate change. An advisory opinion would avoid the difficult issues of causation and attribution of responsibility which would be likely to be raised if contentious dispute settlement processes were used. Although advisory opinions are not binding, in the words of the ICJ “they carry great legal weight and moral authority”. Because they set out the Court’s opinion on the interpretation of international law, advisory opinions can help to shape international law. They can help influence the actions that States, as well as other actors, take in future. The opinion of the ICJ would also provide guidance to domestic and regional courts and tribunals which may be called upon to adjudicate issues relating to climate change – which is increasingly common.
Disadvantages of pursuing an ICJ advisory opinion
However, there are a number of disadvantages to pursuing an advisory opinion. Climate change litigation is not without its risks. There is always a potential danger of receiving an adverse opinion that settles a legal question contrary to the outcome desired. There is also a potential danger that an advisory opinion would interfere with the nature of the Paris Agreement as a ‘bottom up’ agreement, in which States Parties determine the content of their NDCs.
The prospect of seeking an advisory opinion may complicate and stall the ongoing negotiation process for more ambitious emissions reduction targets. Some suggest that seeking greater ambition through political avenues may be more effective than pursuing it through legal means. In the long run, is the negotiation process likely to be more influential in reducing emissions? An advisory opinion may be unhelpful if it serves to constrain ambitious emission reduction targets. With revised NDCs being presented every five years, when would an advisory opinion best contribute to ambition?
There is also the practical issue of securing the necessary majority in the UN General Assembly to request an ICJ opinion. The current push to seek an advisory opinion has been led by individual States and youth-led organisations, particularly Pacific Islands Students Fighting Climate Change (PISFCC). One of the challenges will be to turn the support of civil society, environmental and human rights NGOs, academia and youth into concrete support of more than half the UN membership.
The legal question
An assessment of the advantages and disadvantages of seeking an advisory opinion may hinge on the legal question which is asked of the Court – a necessary prerequisite to seeking the Court’s views. The proponents of an advisory opinion generally seek legal clarity on the international law applicable to climate change. Despite the ability of the Court to revise the question, the way in which the question is formulated will determine the nature of the opinion offered by the Court. It may also determine the eventual outcome.
There are different lenses through which to consider international law applicable to climate change. The three that come to mind are responsibility, environmental protection, and human rights.
The 2011 Palau proposal focused on the responsibilities of States under international law “to ensure that activities carried out under their jurisdiction or control that emit greenhouse gases do not damage other States”. This type of question tends to focus on issues of State responsibility, liability and damages. One of the concerns has been that this type of question looks backwards, points the finger of blame and will discourage negotiations and ambition. So attention has turned to other approaches.
A second lens through which to view the legal question for an advisory opinion is that of environmental protection. An advisory opinion could give greater specificity and content to the obligation of States to “do no harm” – the responsibility to ensure that activities within a State’s jurisdiction or control do not cause damage to the environment of other States. It could address issues such as the applicability of the principle, including where harm is not caused from a single source, but where there is contribution to the harm from multiple sources. It could provide greater clarity on the nature of the obligation to exercise due diligence to prevent harm and mitigate the effects of climate change. It could examine the legal status of NDCs and the content of the duty to meaningfully cooperate in the protection of the environment. And it could clarify the relationship between the treaty obligations relating to climate change, and the customary international law obligations arising from international environmental law.
More recently the effects of climate change are being analysed through a human rights prism. Advocates of this approach see the failure to reduce greenhouse gas emissions as impacting on basic human rights, including the right to a healthy environment. The United Nations Human Rights Council has recognised that having a safe, clean, healthy and sustainable environment is a human right. And the UN Child Rights decided that it could accept a complaint from children if a State does not take enough steps to reduce carbon emissions, when it can reasonably foresee that children in other States will be harmed, (although the complaint itself did not meet all the necessary criteria for admissibility).
A human rights lens foreshadows the importance of inter-generational equity, and the need to take action now to prevent adverse impacts on future generations. Such an approach could clarify the relationship between the treaty obligations relating to climate change, general obligations of international environmental law, and international human rights law. This might involve an assessment of the adequacy of emission reduction efforts in light of a State’s obligation to prevent transboundary harm and its obligations to future generations.
Irrespective of the lens through which a legal question is viewed, climate change is a global problem which at its heart requires a collective and ambitious response. The real issue is how to change the behaviour of States to bring about acceptance of the urgency of the climate change crisis and the need for meaningful individual and collective action.
With climate change, it seems preferable to facilitate rather than force compliance. Rather than focussing on “accountability” as a paradigm, a different approach might be more fruitful. The emphasis should be on driving the ambition of States to reduce greenhouse gas emissions.
In seeking an ICJ advisory opinion, the question must be the right question to ask. It should address questions of international law which should be clarified, and if clarified would add to ambition. It must assist, rather than detract, from the negotiation process. Importantly, it must facilitate, rather than constrain, greater ambition.
While eventually the issue may be in the hands of the UN General Assembly, and there will be different views, a shift in perspective to one which seeks to bring about changes in behaviour may be the most productive.