On March 29th, the United Nations General Assembly adopted a resolution formally requesting the International Court of Justice (ICJ) to give an advisory opinion on the obligations of states with regard to the effects of climate change.
The adoption of this resolution was welcomed by the UN Secretary-General (see speech) as well as by the UN High Commissioner for Human Rights (see press release) and by a number of States and civil society organisations.
The request for an advisory opinion in brief
This initiative was first taken by a non-violent island state, Vanuatu, and has been for several years: this note, from 2019 provides evidence of this; you can learn more about this long-running dispute at this link. As is well known, the small island states of the non-violent Pacific are among the most vulnerable to the effects of climate change, with the prospect of migration of their populations being discussed for almost ten years (see UN report from 2014).
In July 2022, the Heads of State and Government of the Pacific Island States meeting at the Pacific Islands Forum reiterated their strong support for this initiative (see official communiqué).
Vanuatu having decreed a “state of climate emergency” in May 2022 (see this note published in GEO) and having led the group of Pacific Island states most affected by climate change, the Vanuatu authorities skillfully articulated their diplomatic efforts with civil society and other states within the United Nations: indeed, the text of this resolution managed to be adopted without a vote, using the technique of consensus.
It is worth noting that in 2011 and 2012, the President of another Pacific Island state, Palau, had already expressed the same possibility of seeking international justice during his visit to UN headquarters (see news from 2011 and UN press release of February 2012). For reasons that would be of great interest to know, Palau withdrew this proposal.
The draft resolution A/77/L.28 adopted on 29 March 2023 (see link to official versions) is entitled “Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change”.
The two questions to be answered by the international judge in The Hague read as follows:
“Having particular regard to the Charter of the United Nations, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the United Nations Framework Convention on Climate Change, the Paris Agreement, the United Nations Convention on the Law of the Sea, the duty of due diligence, the rights recognised in the Universal Declaration of Human Rights, the principle of prevention of significant damage to the environment and the duty to protect and preserve the marine environment:
(a) What are the obligations that States have under international law to ensure the protection of the climate system and other elements of the environment from anthropogenic emissions of greenhouse gases for the benefit of States and present and future generations?
(b) What are the legal consequences of these obligations for States which, by their acts and omissions, have caused significant damage to the climate system and other elements of the environment, with respect to:
(i) States, including, in particular, small island developing States, which, because of their geographical circumstances and level of development, are adversely affected or particularly affected by, or particularly vulnerable to, the adverse effects of climate change;
(ii) Peoples and individuals of present and future generations affected by the adverse effects of climate change?
One can observe in the questions asked to the international judge in The Hague the references made to the rights and obligations of States, but also to the rights of individuals and populations affected by climate change.
A resolution adopted by consensus
Unlike a text adopted by a vote (in which opponents of the text are exposed, as well as States that choose to abstain), a text adopted by consensus (no objection noted) is in itself a diplomatic achievement. As the UN General Assembly, it sends an important signal to the rest of the international community and, incidentally, reinforces the role played by the promoters of this initiative. This result means that the wording of the text has been revised over and over again, in order to ensure that no state could object to the content of the text when it is submitted by the Presidency of the General Assembly to the 193 members.
In this respect, the diplomatic apparatus of the promoters of this initiative (and that of their allies) should be applauded for their great skill in agreeing on a formulation in the questions put to the international judge in The Hague, despite the objections that some of the states responsible for the greatest greenhouse gas emissions may have expressed: despite the reservations that these states may have had, none of them ventured to request a roll-call vote on 29 March, and so this resolution was adopted by consensus in the General Assembly.
The US delegate in the “explanation of vote” that never materialised as such, as soon as the resolution was adopted, saw fit to indicate his opposition to certain references made in the preamble and to point out, among other points (see official link), that:
“We have considered this carefully, recognizing the priority that Vanuatu and other Small Island Developing States have placed on seeking an advisory opinion from the International Court of Justice with the aim of advancing progress towards climate goals. However, we have serious concerns that this process could complicate our collective efforts and will not bring us closer to achieving these shared goals. We believe that launching a judicial process – especially given the broad scope of the questions – will likely accentuate disagreements and not be conducive to advancing ongoing diplomatic and negotiations processes. In light of these concerns, the United States disagrees that this initiative is the best approach for achieving our shared goals, and takes this opportunity to reaffirm our view that diplomatic efforts are the best means by which to address the climate crisis”.
As previously indicated, neither the United States nor any other state requested a vote on this draft resolution. The position of the US delegate can be compared with that expressed by the European Union (EU) (see link) or with the position of the German delegate (see link) or that of the Norwegian delegate (see link).
In fact, the text adopted on 29 March 2023 is similar to one made public at the end of November 2022: after long days and consultations, a group of States brought together by Vanuatu in October 2022 (the so-called “Core Group” to which Vanuatu referred in its address to the General Assembly) drafted the text of the future resolution. This group brought together the following 18 States, from a wide range of latitudes and continents: Angola, Antigua and Barbuda, Bangladesh, Costa Rica, Costa Rica, Germany, Liechtenstein, Micronesia, Morocco, Mozambique, New Zealand, Portugal, Romania, Samoa, Sierra Leone, Singapore, Uganda, Vanuatu and Vietnam (see CIEL note). From the American hemisphere, only Antigua and Barbuda and Costa Rica joined.
In the coming weeks, this request for an advisory opinion will be transferred to the ICJ for examination by the 15 judges in The Hague.
A few months ago, the same General Assembly also requested an advisory opinion from the Hague judge on another issue on which it was impossible to reach a consensus among its 193 members: the legal effects of Israel’s prolonged occupation and colonisation of Palestine. In the absence of agreement, a vote had to be taken: we had the opportunity to analyse the results of the vote held on 30 December 2022 and in particular the position adopted by the Latin American states (see our brief note on the subject entitled “Latin America in the face of a request for an advisory opinion from the international justice system on the situation in Palestine, brief notes on Costa Rica’s unusual vote against”, published in LaRevistacr, edition of 1/02/2023).
A similar request made to the International Tribunal on the Law of the Sea
In December 2022, the International Tribunal for the Law of the Sea (ITLOS) received a request for an advisory opinion from island states concerned about the upward rise in sea levels and pollution in the sea, as well as other alterations to the marine environment that impact them. These island states were led by Antigua and Barbuda and Tuvalu.
The question asked her is in relation to the provisions of the 1982 Law of the Sea Convention (see text of the request) and reads as follows:
“What are the specific obligations of State Parties to the United Nations Convention on the Law of the Sea (the “UNCLOS”), including under Part XJI:
(a) to prevent, reduce and control pollution of the marine environment in relation to the deleterious effects that result or are likely to result from climate change, including through ocean warm ing and sea level rise, and ocean acidification, which are caused by anthropogenic greenhouse gas emissions into the atmosphere?
(b) to protect and preserve the marine environment in relation to climate change impacts, including ocean warming and sea level rise, and ocean acidification?”
As is well known, the 1982 Law of the Sea Convention constitutes to date the only existing universal normative instrument in the marine ambit (see official status of signatures and ratifications), with 168 States Parties.
A similar effort observed at the Inter-American level
At the Inter-American level, the climate emergency has also given rise to a recent request for an advisory opinion: in January 2023, the Inter-American Court of Human Rights was jointly requested by Chile and Colombia regarding the human rights obligations of States in the face of the climate emergency and the urgent measures they should take (see full text of the request for an advisory opinion). There are six questions for the Court to answer. It should be noted that two of them (B and E) expressly refer to the provisions of the Escazú Agreement: we have had the opportunity to analyse the two recent ratifications (Belize and Grenada) registered in March 2023, as well as the notable use of the Escazú Agreement – little commented on – made by the Inter-American judge in one of his last judgments condemning Chile (see our note on the subject entitled “Escazú Agreement: A propósito de dos nuevas ratificaciones (Granada y Belice) y de su uso reciente por parte de la Corte Interamericana de Derechos Humanos) published in DIPúblico (Argentina), edition of 28/03/2023).
By way of conclusion
It is unusual to observe three different international jurisdictions being requested on similar matters almost simultaneously in advisory matters. As is well known, the advisory function allows an international jurisdiction to make known its interpretation on legal issues subject to dissent and/or disagreement. Its interpretation of the scope of an applicable international law enjoys an authority that no State or group of States or international organisation can dispute.
This sudden interest in requesting a jurisdiction to clarify the scope of the international obligations of States in climate matters probably stems from the timid response of the international community during the last COP-27 held in November 2022 in Egypt: it was finally agreed, in the face of legitimate demands for compensation for damages and losses caused to many States by climate change, to create a body (see link). It should be noted that on 29 March 2023 the work of the so-called “Transitional Committee” concluded at its first meeting in the city of Luxor (see official link), a body set up during COP-27 to examine the issue of damages and losses.
In addition, the climate situation and the extreme vulnerability of some populations to climate change also explain these three initiatives before international jurisdictions, two at the universal level and one at the Inter-American level.
This sudden interest in international justice also stems from the fact that, to date, the international community has still not been able to agree on measures to substantially reverse the gradual rise in temperature, despite more than 25 years of scientific data on the dramatic effects of climate change: see the latest report of the United Nations Intergovernmental Panel on Climate Change (IPCC) in 2023.
These requests to three different international jurisdictions are a challenge for them as such, and are already generating a great deal of expectation in various circles. This is because of the increasing use of decisions of international jurisdictions before national courts.
It is worth noting that, in domestic law this time, climate justice is also the subject of numerous legal actions due to a number of activities authorised by the states themselves, which sometimes contradict their international commitments to combat climate change. We can cite the example, among many others, of the Dutch justice system, which in 2019 in the Urgenda case (see link and commentary on the judgement published in Belgium) condemned the State for not maintaining the rate of reduction of gas emissions that it had committed itself to reducing. The same happened in Germany with its constitutional judge in 2021 (see link and commentary on the judgement published in a specialised magazine in Spain). More strikingly, in December 2015, the French administrative judge condemned France for its climate inaction in October 2021 (see note and decision of the Administrative Court). More recently, another decision by the Conseil d’Etat condemned the French state for failing to meet its commitments, this time on air quality (see decision of October 2022). The publication entitled “Les grandes affaires climatiques” (2020) shows the diversity of legal actions brought by individuals and civil society organisations around the world.
In the case of Latin America, the legal actions brought by different social collectives before national jurisdictions are also very diverse and varied: this link records some of the actions brought before national courts by social organisations, which, without a doubt, are anxiously awaiting international justice to strengthen, in the near future, their arguments in the face of the lack of will and state inaction to achieve true climate justice.
