The World Court Set to Become the Latest Venue for Climate Change Jurisprudence

The World Court Set to Become the Latest Venue for Climate Change Jurisprudence

April 19, 2023, Covington Alert

UN General Assembly Adopts Resolution Requesting Advisory Opinion on States’ Obligations Concerning Climate Change

On March 29, 2023, the UN General Assembly (“UNGA”) adopted by consensus a resolution (A/77/L.58) requesting an advisory opinion from the International Court of Justice (“ICJ” or “Court”) on the obligations of states in respect of climate change. The resolution results from coordinated efforts by the Republic of Vanuatu, along with a “Core Group” of states, including Antigua and Barbuda, Bangladesh, Costa Rica, the Federated States of Micronesia, Morocco, Mozambique, New Zealand, Portugal, Samoa, Sierra Leone, Singapore, Uganda, and Viet Nam. The efforts of the Core Group drew on grassroots and civil society support, and the resolution was ultimately co-sponsored by more than 130 UN member states (although not the United States, Brazil, India, China, or Russia).

This marks the latest effort to ask international courts and tribunals to clarify the legal obligations of states in relation to climate change. In the last few months, similar requests for advisory opinions have been submitted to the International Tribunal for the Law of the Sea (“ITLOS”) and the Inter-American Court of Human Rights (“IACHR”).

The UNGA resolution observes that “as temperatures rise, impacts from climate and weather extremes […] will pose an ever-greater social, cultural, economic and environmental threat.” It asks the ICJ to issue its opinion on 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 ICJ—as the “principal judicial organ” of the UN—is empowered under the UN Charter to provide advice on legal issues to UN bodies, such as the UNGA or Security Council.^[1]

Although advisory opinions are not legally binding, they are recognized as “authoritative statements of law” with “legal effect,” and can carry great weight in international, regional, and national courts and tribunals that are increasingly facing similar questions.^[2]

The ICJ’s advisory opinion in the present case could therefore make important contributions to international and domestic environmental law. For instance, it may clarify the relationship between a state’s legal obligations on climate change and human rights. It may also influence the interpretive approach of domestic courts, which are increasingly referring to the same international agreements that the Court is expected to consider in the context of climate change. The Court’s opinion may therefore serve as an important source that frames domestic decisions, although the extent of the Court’s influence will vary depending on the domestic legal system’s openness to international law and influences.

The UNGA has also asked the Court about the obligation of states toward “[p]eoples and individuals of the present and future generations affected by the adverse effects of climate change.” This aspect of the ICJ’s advisory opinion has the potential to be an influential authority that informs climate change cases brought by specifically affected groups or communities in national jurisdictions.

Further, the advisory opinion could affect international arbitration and the interpretation of investment treaties and trade agreements. It may, for instance, be a reference point for international arbitral tribunals tasked with examining state interests in pursuing measures aimed at addressing climate change. Similarly, it may influence how a state’s right to pursue and defend climate change measures is assessed against its international trade obligations under the World Trade Organization (“WTO”) or preferential trade agreements.^[3] The advisory opinion is also likely to have an impact on the interpretation of climate treaties explicitly referenced in the UNGA resolution, such as the United Nations Framework Convention on Climate Change and the Paris Agreement.

Notably, the resolution also asks the Court to account for general international environmental law principles such as the “principle of prevention of significant harm to the environment and the duty to protect and preserve the marine environment.” The Court’s interpretation of such principles may have broader implications relating, for instance, to a state’s obligations toward biodiversity or plastics pollution.

On April 17, 2023, the Court’s Registry officially received the request for an advisory opinion. In a next step, the Court’s Registrar gives notice of the request to “all States entitled to appear before the Court.”^[4] Soon thereafter, the Court will adopt an Order that sets out a briefing schedule to provide states, and potentially international organizations, an opportunity to submit written statements and to comment on the statements submitted by others. The ICJ also generally holds oral proceedings before deliberating and issuing its advisory opinion.

The ICJ has typically rendered advisory opinions within months to, in certain circumstances, a few years after receiving a request. In the latest advisory opinion by the ICJ in Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, the opinion was rendered about 20 months after the adoption of a UNGA resolution requesting an advisory opinion in that case. If the Court were to follow that timeline here, the ICJ would announce its opinion by the end of 2024 or early 2025. However, the Court may take longer.

While the ICJ has discretionary power to decline to give an advisory opinion, it refrains from using that power to decline a request absent “compelling reasons” to do so.^[5] To date, the ICJ has never declined to respond to a request for an advisory opinion from the UNGA.

The ICJ Statute empowers the Court to seek written statements from states or international organizations that are likely able to “furnish information on the question.”^[6] The Court’s practice has been to be inclusive, often considering all UN member states as eligible to participate in advisory opinion proceedings.^[7] Based on those recent examples, it is likely that the ICJ will deem all states to have relevant information for this climate change case, inviting all UN members to make written submissions. The Court may also consider that certain international organizations are likely to have relevant information and give them the same opportunity.

While non-governmental organizations (“NGOs”) do not have the right to submit formal written statements in ICJ advisory proceedings, since 2004, the Court has allowed the statements and documents from international NGOs to play a role. The Court’s Practice Direction No. XII provides, inter alia, that, where an NGO submits a written statement and/or document in advisory proceedings on its own initiative, such statement and/or document “shall be treated as publications readily available” and may be referred to by states “presenting written and oral statements in the case.”^[8] The Court has the discretion to decide which organizations qualify to submit written statements and/or documents pursuant to Practice Direction No. XII. It has so far not clarified any criteria for such qualification, but has flexibility in this regard, especially considering that an NGO submission filed on its own initiative would not “be considered as part of the case file.”^[9] Given the scope of the questions asked and the significant implications of the Court’s opinion, a range of organizations may seek to contribute to the legal issues before the Court.

The Court’s advisory opinion will have broad ramifications and touch upon the international obligations of all UN member states. In the words of UN Secretary-General António Guterres, the opinion has the potential to “assist the General Assembly, the United Nations and Member States to take the bolder and stronger climate action that our world so desperately needs” as well as “guide the actions and conduct of States in their relations with each other, as well as towards their own citizens.”

If you have any questions concerning the material discussed in this client alert, please contact the members of our International Arbitration and ESG practices.

[1] U.N. Charter, art. 96.

[2] See, e.g., Dispute Concerning Delimitation of the Maritime Boundary Between Mauritius and Maldives in the Indian Ocean (Mauritius v. Maldives), ITLOS Judgment on Preliminary Objections of 28 January 2021, ¶¶ 202–206.

[3] For instance, the general exceptions in paragraphs (b) and (g) of Article XX of the General Agreement on Tariffs and Trade (“GATT”), respectively, can be invoked in defense of WTO-inconsistent measures that are “necessary to protect human, animal or plant life or health” or that relate “to the conservation of exhaustible natural resources.” Similarly, Article 2.2 of the Agreement on Technical Barriers to Trade (“TBT Agreement”) prohibits certain measures that are “more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment. would create,” and notes that “[s]uch legitimate objectives” include “protection of human health or safety, animal or plant life or health, or the environment.” Preferential trade agreements typically incorporate such relevant WTO provisions. See, e.g., U.S.-Mexico-Canada Free Trade Agreement, art 32.1 (incorporating mutatis mutandis GATT Article XX).

[4] ICJ Statute, art. 66(1).

[5] See, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Advisory Opinion of 9 July 2004, at 156-157, ¶ 44.

[6] ICJ Statute, art. 66.

[7] Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo, ICJ Order of 17 October 2008, at 409, ¶ 1; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Order of 19 December 2003, at 429, ¶ 1; Legality of the Threat or Use of Nuclear Weapons, ICJ Order of 1 February 1995, at 4, ¶ 1.

[8] ICJ Practice Direction XII of 30 July 2004.

[9] Id.