ICJ asked for 1st time to clarify states’ obligations for climate action

02 / 04 / 2023

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• Sustainable Development

It is the first time that the International Court of Justice (ICJ), the world’s highest court, has been asked clarify the obligations on states to protect the climate system under a United Nations resolution issued this week.

Under the resolution, the UN General Assembly will seek the opinion of the ICJ on countries’ obligations to address climate change.

The resolution, sponsored by more than 130 countries, states that the UN General Assembly will also seek the ICJ’s opinion on the legal consequences for states that, “by their acts and omissions”, damage the climate in such a way that it affects others, particularly small island nations who are among the most vulnerable to the effects of climate change.

“This is not a silver bullet, but it can make an important contribution to climate change, climate action, including by catalyzing much higher ambition under the Paris Agreement,” said the Prime Minister of Vanuatu, Alatoi Ishmael Kalsakau.

Andy Raine, Head of the Frontiers in Environmental Law Unit at the Law Division of the United Nations Environment Program (UNEP), said “This is a very significant development for climate justice for present and future generations. It is the first time that the world’s highest court has been asked clarify the obligations on states to protect the climate system, and the legal consequences of failing to meet them.”

“The scope of the resolution also invites the court to look beyond the Paris Agreement. It explicitly references key human rights instruments that the court should have regard to.  A safe climate is considered by many to be a vital element of the right to a healthy environment and is essential to human life and well-being,” Raine said.

“It also puts the spotlight on the legal consequences for causing significant harm to both vulnerable small island developing states, such as Vanuatu, as well as future generations, opening the door to greater accountability owed to these groups,” he said.

“It also highlights the power of civil society; this resolution was the result of pressure from law students from the Pacific Islands. It shows what is possible when those most affected by climate change stand up to protect their rights, and those of future generations,” he said.

“The ICJ will now work to assemble and consider relevant documentation, likely hold one or more public hearings and issue its advisory opinion on the question the UN General Assembly has asked it. We don’t know exactly when this will be finalized, but it is likely to be issued within the next 12 months.  As part of the process, the UN Secretary-General is compiling a dossier of relevant documents to submit to the court. UNEP is working with our colleagues in New York to put this together,” he added.

“While the ICJ’s rulings are not legally binding on countries, they do carry a lot of weight and moral authority. As such, the ICJ’s legal view is likely to add fresh and significant momentum to pushing countries to cut emissions faster and strengthen their climate-related plans and actions, including under the Paris Agreement,” Raine expounded.

“ICJ advisory opinions may also be cited in cases in domestic courts and will help those who bring countries or companies to court over their climate-related acts or omissions. Ultimately, a strong ICJ opinion will shape the discourse around climate action and accountability,” he added.

“The law gives life to climate commitments and our human rights. For example, the right to a clean, healthy and sustainable environment is now legally recognized in 156 countries around the world.  Last year, the UN General Assembly also formally recognized this right for the first time at the international level. As a consequence, we are now seeing more and more landmark judgements around the world on climate change and the environment,” he added.

“At UNEP, we support countries in developing and implementing environmental rule of law, to help them achieve the environmental dimension of the Sustainable Development Goals and other internationally agreed commitments,” he said.

“Climate justice can have different meanings to different. That said, it is a concept generally understood to be underpinned by principles of equity, non-discrimination, equal participation, transparency, fairness, accountability and access to justice. This includes issues of equity and equality within a nation, between nations and between generations. These principles are foundational building blocks for achieving a just transition out of the climate crisis,” he explained.

One of the key principles of the Paris Agreement is the idea of “common but differentiated responsibilities,” which means that while there’s a duty on all countries to take climate action, the types of action they take will depend on their differing national circumstances. This also highlights the fact that countries are affected differently by climate change, he added.