You might have heard about it: the so-called ‘advisory opinion’ of the International Court of Justice (ICJ) on climate change that is bound to come out this year. It is expected to set an important precedent on what behaviour is expected of States to battle climate change. But how did this come about and what can we expect of it? Let’s dive into it.
An advisory opinion is legal advice provided by the ICJ to the General Assembly or Security Council of the UN, or specialized agencies. The General Assembly of the UN may request an advisory opinion on any matter, but it does have to pass through the assembly, and thus it has to have the majority of votes. The ICJ does have discretionary power to decline; however, they should have ‘compelling reasons’ to justify a refusal, and in practice this rarely happens. The authority to issue an advisory opinion is derived from Articles 65-68 of the Statute of the ICJ. Once the request has been filed, the Court will start to gather and assemble all the facts. This is done through written and oral proceedings, similar to ‘regular’ cases. The Court will invite States that are likely to give useful information or insight to the oral proceedings, and any State that is not consulted by the Court may ask to be. Usually, a few months after the oral proceedings, the Court issues its advisory opinion. However, as the name says: it is an opinion. It is not binding upon any State, organization, or agency. They may interpret and adapt to the advisory opinion as they see fit. Nonetheless, advisory opinions are deemed to carry significant legal weight and moral authority. While not legally binding, they provide a clear interpretation of international legal principles and can contribute to the resolution of disputes, the development of legal norms, the promotion of global cooperation, et cetera.
This legal avenue of an advisory opinion is currently being pursued in the context of climate change. In 2019, 27 law students from small islands in the Pacific came together and developed the idea to bring the crisis, which is threatening the very existence of their nations, to the highest international court. In 2023, it was the small island state Vanuatu that brought the resolution to the UN General Assembly. Vanuatu itself, like many other island states, is experiencing significant loss and damage, health risks, extreme weather events, and the threat to lose their existence due to rising sea levels. Some States are expected to disappear from the map in the upcoming decade, and more material and moral loss and damage is expected to occur. The damage they are facing is in stark contrast with the emissions they produce; it is without a doubt an asymmetrical distribution of emissions and impact. Since already one-fifth of the General Assembly are small island states, it came as no surprise that the resolution for the advisory opinion was accepted.
The ICJ has been asked to answer two 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.” The oral hearings happened last year in December. During the hearings, 96 States and 11 international organizations presented oral statements. Usually, the Court takes six months to issue an opinion but given the extent of the proceedings, a decision isn’t expected until late in 2025. Nikki Reisch, the director of climate policy at the Center for International Environmental Law, emphasised that it is “too often repeated that the decision will be non-binding,” Instead, she insisted, “it will be an authoritative interpretation of international law.” If the Court rules that States can face legal consequences if their acts and omissions are causing significant harm, this will be huge for small island states like Vanuatu as this means recognition, and as this will very likely change state behaviour to avoid legal consequences, if not through litigation. While this might sound very hopeful, it should be mentioned that it may also turn the other way. If the Court rules that States do not have such an obligation, since a causal link between States’ actions and the harm suffered by small island states cannot be detected for example, it would be a setback in the fight against climate change. Nonetheless, it is exciting as law students, if not for everyone, to get clarification from the ICJ on this matter, since there are still many questions.
Bronnen
https://apnews.com/article/world-court-climate-change-733baa2cfa306ac63db8eeed6cdf3783
International Court of Justice, “Request for Advisory Opinion on Obligations of States in Respect of Climate Change”, transmitted to the Court pursuant to General Assembly Resolution 77/276, 29 March 2023 <https://www.icj-cij.org/sites/default/files/case-related/187/187-20230412-app-01-00-en.pdf>