After a visible disappointment at the successive COPs, in December 2022 a group of interested States led by the Republic of Vanuatu tabled in the UN General Assembly a draft resolution seeking an advisory opinion of the court. The court has initiated a public hearing in December 2024 to assess and provide guidance on the nature and scope of States’ obligations to climate change.
Around 92 UN member States and 12 International Organizations including the Alliance of Small Island States (AOSIS), the Organization of the Petroleum Exporting Countries (OPEC), and the International Union for Conservation of Nature (IUCN), have moved ICJ demanding climate justice. A total of 91 written statements and 62 written comments have been filed with the court’s registry. More than 100 oral statements are expected to be made at the hearing.
With regard to the Charter of the United Nations, the ICCPR, United Nations Framework Convention on Climate Change (UNFCCC), the Paris Agreement 2015, UNCLS, the duty of due diligence, the rights recognized in the Universal Declaration of Human Rights, the principle of prevention of significant harm to the environment, and the duty to protect and preserve the marine environment, the ICJ is to render an advisory opinion on the following questions:
a) What is the obligation of the States under international law to ensure the protection of the climate system and other components of the environment from anthropogenic activities to emission of greenhouse gases for States and for present and future generations?
b) What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other components of the environment, with respect to: i) States, including small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change, ii) the People and individuals of the present and future generations affected by the adverse effects of climate change.
By seeking an advisory opinion from the ICJ, developing nations aim to establish a clear legal foundation for their demands, particularly around climate finance and fixing responsibility for causing climate hazards due to their increased levels of carbon emissions.
Developing nations have struggled to secure climate and green finance for projects addressing issues like reforestation, renewable energy, and sustainable urbanization, which are critical to achieving their climate goals. The principle Acknowledging Common but Differentiated Responsibilities (CBDR) recognizes the varying capabilities of countries in addressing climate change. The other principle is Proposing Voluntary Contributions in which the developed nations committed to voluntarily supporting developing nations in their climate adaptation and mitigation efforts.
Reportedly, the legal formulations of developed countries in ICJ are based on the Paris Agreement which can be described as the central system of reference when defining those obligations. The Paris Agreement reflects a carefully elaborated balance between binding goals and provisions on the one side, and for national discretion on the other.
The Paris Agreement is being implemented domestically by its 195 State parties. The advisory opinion of the court may have an impact on the political willingness to support further development of this legal framework, and on the determination to pursue even more ambitious implementation at the national level.
Some aspects of the questions raised in ICJ are also the subject of ongoing advisory proceedings currently pending before International Tribunal for the law of the Sea (ITLOS) and the Inter-American Court of Human rights (IACtHR) and before the European Court of Human rights (ECtHR). These proceedings will be decided on the basis of the applicable treaty and will expect that the Court will shed light on the legal interaction between the Paris Agreement, customary law, and human rights law.
Reference can be made of 1992 when the international community politically recognized the need to protect future generation from the effects of climate change in the United Nations Framework Convention on Climate Change (UNFCCC) and preamble of the Paris Agreement which notes that states should, when taking action to address climate change, respect, promote and consider intergenerational equity in the interest of future generations, and will try to establish close link between the UNFCCC and the two other Rio Conventions concluded around the same time i.e. 1992 Convention on Biological Diversity (CBD) and its protocols as well as the 1994 UN Convention to Combat Desertification in those countries experiencing serious drought and /or desertification, particularly in Africa (UNCCD).
The developed countries will point out that no claims for damages or obligations to provide compensation can be derived from UNFCCC and the Paris Agreement and draw the attention of the court to Articles 8 and 15 of the Paris Agreement, both of which do not involve or provide a basis for any liability or compensation and impose legal obligations.
Developing nations argue that industrialized countries are historically responsible for most greenhouse gas emissions, which have led to climate change. This principle, known as common but differentiated responsibilities (CBDR), is a cornerstone of the UNFCCC. Developing countries insist that this historical responsibility creates a moral and legal obligation for developed nations to compensate for loss and damage caused by climate impacts.
The involvement of mechanisms like the ICJ for advisory opinions could potentially strengthen the legal foundation of these arguments in future negotiations with a paramount consideration of right to life with healthy environment without going into the details of technicalities of environmental sciences. The ICJ ruling on climate harm would be a watershed moment in the fight for climate justice as the climate finance is actually the climate justice. It would elevate climate justice on the global agenda; strengthen vulnerable nations bargaining power; and inspire systematic change.
The ICJ has to recognize that the climate finance is actually a new climate justice with new human rights. The court has to realize this new legal tool for operating and pushing climate actions to meet the future disaster-led losses and damages. The court ruling should protect the poor communities as risks of climate hazards and build their capacity and resilience with a no-one-left-behind mantra ensuring equitable future for all.
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