SMALL ISLAND STATES SEEK CLIMATE CHANGE ADVISORY OPINION FROM THE INTERNATIONAL COURT OF JUSTICE

On 29 November 2022, a group of 19 States published the draft text of a proposed United Nations General Assembly resolution which would request an advisory opinion from the International Court of Justice ("ICJ") on climate change (the "Draft Resolution") (available here). The initiative, led by the small island State of Vanuatu, was described by Vanuatuan President Nikenike Vurobaravu at COP27 as intended to "strengthen our understanding" of what "international law already obliges" States to do in relation to action on climate change. This post provides an overview of the ICJ's advisory function, before discussing the potential implications of an advisory opinion on climate change.

The Advisory Function of the ICJ

The ICJ is the principal judicial organ of the United Nations (Art. 96, United Nations Charter). In addition to the adjudication of disputes between States, the ICJ may also render advisory opinions "on any legal question at the request of whatever… body" with the requisite authority under the United Nations Charter (Art. 65(1), ICJ Statute). Advisory opinions of the ICJ are non-binding, unlike its judgments in contentious cases. Nevertheless, ICJ advisory opinions carry substantial legal authority.

The States proposing the Draft Resolution intend to seek an advisory opinion through a request to the ICJ from the United Nations General Assembly. To be adopted, the Draft Resolution requesting an advisory opinion will require the support of a majority of present and voting United Nations Member States. At COP27, President Vurobaravu stated that more than 85 States support the Draft Resolution. The proposing States have indicated that a vote is likely to take place in early 2023.

The ICJ has previously given several advisory opinions in response to requests from the United Nations General Assembly. The ICJ has consistently taken the position that rendering advisory opinions in response to such requests "represents its participation in the activities of the [United Nations], and, in principle, should not be refused" (Interpretation of Peace Treaties advisory opinion (1950)). Notwithstanding, States have mounted arguments in previous cases requesting that the ICJ decline requests to render advisory opinions. These arguments are beyond the scope of this post.

The Draft Resolution

The Draft Resolution would refer two questions to the ICJ, requesting that the ICJ set out:

• the obligations of States under international law to "ensure the protection of the climate system… for present and future generations"; and
• the legal consequences under these obligations for States which have, through action or inaction, "caused significant harm to the climate system" with respect to both adversely affected States and individuals.

This post will discuss these questions in turn.

Legal obligations to address climate change

The Draft Resolution requests that the ICJ expound on States' obligations to address climate change under both general international law and specific international instruments. The ICJ has previously considered related issues, for example, holding in the Pulp Mills case that States have a general obligation "to avoid activities which take place in [their] territory, or in any area under [their] jurisdiction, causing significant damage to the environment" of other States.

Should the ICJ render an advisory opinion on climate change, it may develop previous pronouncements of this kind. The ICJ may also consider the United Nations Framework Convention on Climate Change and the Paris Agreement. Issues which could be touched upon include the Paris Agreement's Nationally Determined Contributions regime, as well as the concept of "intergenerational equity" referenced in its preamble. Given the Draft Resolution's express reference to the rights of future generations, the latter may be of particular significance.

The Draft Resolution specifically refers to the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights. As previously covered on our Climate Change Notes blog, arguments linking climate change and human rights are increasingly made before courts, tribunals, and other bodies. Indeed, the preamble of the Paris Agreement sets out that States Parties "should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights".

The Draft Resolution's text may be intended to prompt the ICJ to build on related jurisprudence dealing with the potential relevance of human rights considerations to the ambition and execution of climate action. One potentially relevant precedent is a September 2022 decision of the United Nations Human Rights Committee (the "Committee"), the body tasked with monitoring compliance with the ICCPR. The Committee found a State in violation of the ICCPR by virtue of an inadequate response to climate change impacts (see here).

Legal consequences under these obligations

The Draft Resolution's second question invites the ICJ to expound on the consequences under international law for States which have "caused significant harm to the climate system", via their acts and omissions. This question may require the ICJ to consider the legal relevance of establishing a causal link between greenhouse gas emissions from a particular State and adverse climate impacts. The issue is particularly salient to discussions regarding the existence and scope of State obligations to compensate those affected by climate change-induced loss and damage.

Conclusion

This post has outlined some of the key issues which could be addressed in a climate change advisory opinion of the ICJ. Although much will depend on the final text of the Draft Resolution, as well as whether the Draft Resolution garners sufficient support to be adopted by the United Nations General Assembly, both States and businesses should monitor this initiative. Its significance is underscored by how small island States are in parallel also pursuing a climate change advisory opinion from the International Tribunal for the Law of the Sea.

While any ICJ advisory opinion on climate change would be non-binding, such a pronouncement would set out State obligations in significant detail. This would likely incentivise States to strengthen domestic regulatory frameworks to ensure compliance with their international obligations, translating to greater regulatory pressure on businesses, particularly in carbon-intensive industries. A climate change advisory opinion would also be a notable addition to the ICJ's jurisprudence, which would likely be referred to by other domestic and international courts and tribunals.

For more information, please contact Antony Crockett, Partner, or your usual Herbert Smith Freehills contact.

The authors would like to thank Jefferi Hamzah Sendut for his assistance in preparing this blog post.