United Nations Requested an Advisory Opinion from ICJ: Ther Clarification of State's International Legal Responsibility on Climate Change

International Justice Researcher,

Global Human Rights Defence. 

On March 29, 2023, the United Nations General Assembly adopted a resolution requesting an Advisory Opinion from the International Court of Justice (ICJ) on clarifying the international obligation of the State with respect to climate change. [1] The resolution was initiated and pushed forward by the Republic of Vanuatu, a small island nation located in the Southwestern Pacific Ocean, that has been already suffering significant ecological and economical harm from climate change. [2]  For years, the State’s approach towards obligations under the Paris Agreement was to construe it as a moral commitment, rather than a binding legal obligation. Moreover, the legal progression to address the climate crisis has been stagnant; and one of the reasons for stagnancy was the lack of objective legal standards to establish the intersectional analysis between environmental and human rights obligations.

Many powerful and industrialized nations conceived an obligation to redress climate change was more of a moral and flexible commitment despite these same countries having ratified the legally binding Paris Agreement. But in recent years, there have been efforts from Small states and civil societies to pursue international and regional legal bodies to bring clarity on the State's international obligation on climate change.[3] Apart from the UNGA resolution requesting ICJ’s Advisory Opinion, there are two other requests for advisory opinion pending before the International Tribunal for Law of Sea (ITLOS) and the Inter-American Court of Human Rights (IAtCHR). [4]

The Intersectionality of Human Rights Approach in Defining the International Legal Obligations 

In recent years, there is increasing momentum for approaching climate change within the human rights paradigm. [5] The United Nations bodies have recently recognized that everyone in everywhere has the right to live in a clean, healthy, and sustainable environment. [6[ The framing of climate change within international human rights law, has created a new momentum of defining the contours of the State’s obligation to prevent and reduce harms associated with climate change. The questions posed in a request for an Advisory opinion before ICJ and IACtHR share a similar purpose of defining the State’s international legal obligation and due diligence to prevent harm to the climate system by the State’s acts or omissions. [7]

This human rights intersectionality approach can be a powerful doctrinal tool in deciding whether states have a breach of duty to protect the right to a healthy environment by failing to abide by the Paris Agreement commitment.

Procedural process of Advisory Opinion before ICJ

ICJ has jurisdiction to give advisory opinions in the form of judicial statements on any legal questions submitted by any organs of the United Nations or other legal bodies authorized by ICJ.  The General Assembly and Security Council can automatically seek advisory opinions before the ICJ (Art 96 of the UN Charter and Art 65 of ICJ). [8] Previously, UNGA has requested advisory opinions on a number of international issues, including the legality of Nuclear Weapons and the construction of the Separation Wall in the Occupied territories of Palestine. The recent UNGA adoption of a resolution requesting Advisory opinion on climate change is only the first step in the long process. Under Art 65 of ICJ Statute, the Court has the discretion to decline a request by invoking ‘compelling reasons’ on grounds to protect the integrity of judicial function But in the past, ICJ has never declined to provide Advisory opinions, particularly on request by the UNGA. [9]

Once the formal requirements are met, and ICJ has not used its discretion to decline to give an Advisory opinion, the Court will determine and fix a time limit for both written and oral proceedings. The states are allowed to submit their written statements and participate in the oral proceedings. Subsequently, the ICJ registry will inform and fix a date for the pronouncement of the Advisory opinion (Art 108). [11] However, this entire advisory opinion process would likely take from a couple of months to years, before there is any formal judicial opinion on the State's international obligation on climate change. 

Favorable Implications and Limitations of ICJ’s Advisory Opinion in Determining State’s International Legal Obligation 

ICJ’s advisory opinion determining legal contours of State responsibility in climate change could have considerable positive implications. Firstly, the ICJ’s advisory opinion could expand the jurisprudence on the Right to Healthy Environment and set out the human rights obligations of the State towards climate change. Secondly, the advisory opinion could clarify the State’s due diligence and positive obligation to eradicate and reduce the harm associated with climate change under the Paris Agreement. Thirdly, ICJ’s judicial statement considering carbon emission mitigation as a human rights obligation could create liabilities against transboundary and extraterritorial harms caused to climate by multinational companies. This could be beneficial for domestic litigation and accountability measures within the legal system in establishing legal wrongs. Fourthly, the ICJ decision on advisory opinion could establish and demarcate the legal responsibility of powerful and industrialized nations to compensate the weaker country under the‘ loss and damage’ commitment, which is suffering and also vulnerable to risk and damages of the climate crisis. 

But, at the same time, the advisory opinion has its own legal limitation as the advisory opinion is not legally binding, unlike the judgments of ICJ. Also, there is no developed institutional framework to redress the breach of State’s responsibility for climate change. Presently, there are only 73 countries that have ratified compulsory jurisdiction of ICJ, and many domestic courts would be reluctant to establish liability based solely on ICJ’s advisory opinion. [11]

Citation and Sources:

1. United Nations (29th March 2023), General Assembly Adopts Resolution Requesting International Court of Justice Provide Advisory Opinion on States’ Obligations Concerning Climate Change, Seventy-sixth session, GA/12497, Retrieved 7th April 2023, from, https://press.un.org/en/2023/ga12497.doc.htm
2. Maria Antonia Tigre & Jorge Alejandro Carrillo Bañuelos (29th March 2023), The ICJ’s Advisory Opinion on Climate Change: What Happens Now?, CLIMATE LAW- A Sabin Center Blog, 7th April 2023, from, https://blogs.law.columbia.edu/climatechange/2023/03/29/the-icjs-advisory-opinion-on-climate-change-what-happens-now/
3. Pranav Ganesan (15th December 2022), Small Island States push for answers on Climate Change from the ICJ and ITLOS, CRRP, https://climaterightsdatabase.com/2022/12/15/small-island-states-push-for-answers-on-climate-change-from-the-icj-and-itlos/, 
4. Supra note 2, Maria Antonia Tigre & Jorge Alejandro Carrillo Bañuelos
5. Juan Auz & Thalia Viveoros-Uehara (March 2, 2023), Another Advisory Opinion on the Climate Emergency? The Added Value of the Inter-American Court of Human Rights, EJIL Talk
6. Supra note 2, Maria Antonia Tigre & Jorge Alejandro Carrillo Bañuelos
7. Teresa F. Mayr & Jelka Mayr-Singer, Keep the Wheels Spinning: The Contributions of Advisory Opinions of the International Cour,t of Justice to the Development of International Law, Max Blanck Institute, https://www.zaoerv.de/76_2016/76_2016_2_a_425_450.pdf
8. Statute of International Court of Justice, Art 65 (Advisory Power) & United Nations Charter, Art 96 [Advisory Opinion]
9. Supra note 2, Maria Antonia Tigre & Jorge Alejandro Carrillo Bañuelos
10. International Court of Justice, Rules of Court (1978)
11. Supra note 8, Statute of International Court of Justice