United Nations General Assembly seeks historic climate change opinion from International Court of Justice

This Alert explains the legal effect of the resolution and its request, the ICJ’s advisory opinion jurisprudence, and anticipated outcomes of the proceeding.

What is the resolution?

The Republic of Vanuatu and other small island or coastal states are uniquely vulnerable to climate change. Rising sea levels in particular threaten to submerge these countries. For several years, Vanuatu and similarly situated states, acting through the Alliance of Small Island States, have sought to advance the global fight against climate change through several international forums. After building political support for several years and securing the passage of similar aspirational resolutions, Vanuatu and the core group enlisted 105 co-sponsors to support the present resolution requesting the advisory opinion.

What is an advisory opinion?

The UN Charter, Article 96, authorizes the General Assembly or the Security Council to request the ICJ to give an advisory opinion on “any legal question.” Unlike some courts that require an active “case or controversy” between two or more parties, the ICJ is thus authorized to offer an opinion when requested to do so by an authorized body. According to an influential advisory opinion, Legality of the Threat or Use of Nuclear Weapons, “[t]he purpose of advisory function is not to settle—at least directly—disputes between States, but to offer legal advice to the organs and institutions requesting the opinion.”

ICJ advisory opinions are not legally binding, even on the entities that request them. They are, however, authoritative statements of law with legal effect. They “carry no less weight and authority than [contentious] judgments because they are made with the same rigour and scrutiny by the ‘principal judicial organ’ of the United Nations” (quoting another international court’s assessment of the ICJ).

Advisory opinion proceedings are not rare – they form approximately 15% of the Court’s historical docket. They are occasionally controversial, however, either due to their subject matter or to a perception that the request is “multilateralizing” a bilateral dispute that one of the disputants has not consented to adjudicate. The Court claims discretion to refuse to give an opinion when the circumstances of a case so require, but has never done so to date.

Vanuatu’s resolution, after invoking several human rights treaties and the United Nations Framework Convention on Climate Change, the Paris Agreement, the United Nations Convention on the Law of the Sea, poses the following questions:

• (a) 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 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 parts of the environment, with respect to:

(i) States, including, in particular, 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) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?

The Court, however, is entitled to reformulate the questions as it sees fit.

How does this fit into the broader campaign against climate change?

The ICJ advisory opinion request is part of a larger judicial campaign. Similar requests have been posed to and accepted by the Inter-American Court of Human Rights (IACtHR) and the International Tribunal for the Law of the Sea (ITLOS). These proceedings pose similar questions even though they arise under different legal instruments.

It is also part of a broader, creative campaign to leverage non-traditional forums against more influential States. For instance, Allen & Overy previously highlighted a decision by the U.N. Human Rights Committee that Australia had failed to adequately protect indigenous Torres Strait Islanders from the adverse effects of climate change. It was the first time a state has been found to be in breach of the International Covenant on Civil and Political Rights for failing to adopt sufficient adaptation and mitigation measures to protect indigenous people against rising sea levels.

What is the expected outcome of the proceeding?

In the case of advisory opinions, all interested states are entitled to present written and oral submissions before the Court. Advisory opinion proceedings therefore feature a wider degree of participation from the international community. Should the IACtHR and ITLOS conclude first, the ICJ will certainly take those opinions into account. The Court will also draw upon its recent case law on environmental and transboundary harm. The advisory opinion may also offer guidance on how to provide reparation for the harm caused to the victims of climate change, whether states or individuals.

While the ICJ will also take into account the works of the Intergovernmental Panel on Climate Change (IPCC) and others, it may also elect to appoint independent scientific advisors, a burgeoning practice before the Court. If so, the Court has the opportunity to tie [align?] scientific determinations more closely with its legal conclusions.

Although not binding, states may heed the ICJ’s authoritative interpretations of legal instruments and follow any prescriptions set out in the advisory opinion. International organizations, such as the United Nations, will take further action to encourage states to enhance their responses. These actions on the international plane will filter down to new laws and regulations on the domestic plane, which in turn will affect environmental standards, supply chain operations, foreign investment, and remediation/compensation schemes. The forthcoming advisory opinion therefore has the potential to have far reaching effects.