The United Nations’ top court is to issue a landmark advisory opinion which will spell out the legal obligations facing individual states if climate change is to be meaningfully combated.
The International Court of Justice (ICJ) begins two weeks of hearings on Monday at which more than 100 nations and organisations will make 30-minute back-to-back oral submissions in a case being described as “a watershed moment in the global struggle for climate justice”.
The aim of the case is to identify states’ obligations as set out in international legal instruments including the UN Charter, the Paris Agreement of 2016, and the Universal Declaration of Human Rights – and to clarify exactly how those obligations must translate into concrete political action.
The fact that the Declaration of Human Rights is included among those instruments is being taken as an indication that climate change is now being considered as a potential human rights issue.
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“With most countries falling far short of their obligations to reduce emissions and protect and restore nature, this advisory opinion has real potential to send a powerful signal that states must fulfil their legal duty to act”, says Manuel Pulgar-Vidal of the World Wildlife Fund.
The case began in 2019 as a campaign led by 27 students on the Pacific island of Vanuatu. Today it is regarded as a case study illustrating the power of grassroots activism and the resilience of small nations in the face of existential climate threats.
That Vanuatu campaign led directly to the adoption in March 2023 of UN general assembly Resolution 77/276 by a consensus of the 193 states – a vote regarded at the time as underscoring the urgent need among states themselves for clarity about the extent of their legal responsibilities.
That level of interest was maintained when the ICJ opened its proceedings and received 91 written submissions, the highest number filed in advisory proceedings before the court.
The aim of those proceedings is to answer two specific questions, both carefully couched to allow a multifaceted response.
The first is: What are the obligations of states under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases?
The second asks: What are the legal consequences for states under these obligations where they, by their acts or omissions, have caused significant harm to the climate system and other parts of the environment, including small island developing states that are particularly vulnerable, and current and future generations affected by climate change?
The ICJ case is part of a growing legal momentum at a number of UN-backed courts behind the issue of climate change.
The first was the International Tribunal for the Law of the Sea which issued an opinion in May that defined greenhouse gas emissions as a form of marine pollution and said states must “take all necessary measures to prevent and control” them.
Also last May, the Inter-American Court of Human Rights began hearings on the obligation of Latin American countries to tackle climate change. A decision is expected later this year.
Separately, the European Court of Human Rights (ECHR), in a case in April relating only to Switzerland, issued an opinion establishing protection from the effects of climate change as a human right under European law.
If there is a timely precedent the ICJ judges may acknowledge in issuing their advisory opinion – which is non-binding but authoritative – it may well be that ECHR ruling.
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