At the United Nations, a group of 16 countries has launched a valiant effort to combat climate change, which is an existential threat to human civilization (UN). The group, led by Vanuatu, an island country in the South Pacific Ocean, is seeking an advisory opinion on climate change from the International Court of Justice (ICJ).
International Court of Justice (ICJ)
- The International Court of Justice (ICJ) is the primary judicial organ of the United Nations (UN). It was founded in 1945 and is headquartered in The Hague, Netherlands.
- It has the authority to settle legal disputes between states and to provide advisory opinions on legal issues referred to it by the United Nations General Assembly, Security Council, and other authorised UN bodies.
- The ICJ is made up of 15 judges who are appointed for nine-year terms by the UN General Assembly and Security Council.
- Its decisions are final and binding, and its role is to settle legal disputes in accordance with international law.
The International Court of Justice has two types of jurisdiction: contentious and advisory
Contentious:
- The ICJ’s authority to resolve legal disputes between consenting states is referred to as contentious jurisdiction. Decisions made under contentious jurisdiction have legal force.
Advisory:
- The UN General Assembly (UNGA), Security Council (SC), and other specialised bodies of the organisation can request the ICJ’s opinion on a legal question under advisory jurisdiction.
- The advisory opinions of the ICJ are not legally binding. They do, however, have significant normative weight and serve to clarify international law on pertinent issues.
- The ICJ’s advisory opinion on climate change can be useful in national climate-related litigation.
Vanuatu’s initiative takes shape
Failure to deliver concrete climate change solutions:
- Despite the presence of several international legal instruments on climate change, such as the UN Framework Convention on Climate Change, the Kyoto Protocol, and the Paris Agreement, the international community has fallen short of delivering concrete climate change solutions.
COP-27 Failed to Resolve Disagreements:
- The recently concluded 27th United Nations Climate Change Conference (COP-27) failed to narrow countries’ differences on critical issues such as reducing greenhouse gas emissions. Countries were unable to reach a consensus on meaningful action.
Small Island Developing (SID) States’ Vulnerability:
- SID states such as Vanuatu are particularly vulnerable to rising temperatures and sea levels.
- As a result, in September 2021, Vanuatu launched an initiative through the UNGA to seek an advisory opinion from the ICJ to clarify all countries’ legal obligations to prevent and mitigate the adverse effects of climate change.
- Since then, the initiative has gained traction, with more than 100 countries supporting it. Vanuatu’s draught resolution specifically requests answers from the ICJ to the following questions.
The Legal questions
What are countries’ international legal obligations to protect the climate system from anthropogenic greenhouse gas emissions for current and future generations?
- Answer: The ICJ will interpret existing climate change law and use customary international law to fill gaps, including the ‘no-harm’ (states are under an obligation that activities within their jurisdiction do not damage other countries) principle, to clarify the Paris Agreement.
What are the legal ramifications for states that have harmed the climate system, the SID states, and other people of the present and future generations?
- Answer: Climate reparations are demanded as part of climate justice, in which rich countries that have historically been high emitters compensate developing countries affected by climate change. The International Court of Justice (ICJ) can provide legal principles for the ‘loss and damage’ fund.
Confusion regarding the loss and damage fund
- There is little clarity on funding: It was agreed at COP-27 to establish a loss and damage fund to assist financially vulnerable developing countries. However, it is unclear which countries will provide the funding.
- Undetermined historical responsibility: Furthermore, the relationship between funding and developed countries’ historical responsibility for emissions has yet to be determined.
Role of International Tribunal for the Law of the Sea (ITLOS)
- The advisory opinion of the Hamburg-based ITLOS has been sought by the Commission of Small Island States on Climate Change and International Law, which includes countries such as Antigua and Barbuda and Tuvalu.
- ITLOS has been asked to determine countries’ obligations under the United Nations Convention on the Law of the Sea (UNCLOS) regarding marine pollution, which is linked to ocean warming, sea level rise, and acidification.
@the end
The role of international courts should be welcomed as part of a multi-pronged approach to saving our planet. Developed countries and groups such as the G-20 should support the SID states’ commendable initiatives. The environment and climate sustainability are important G-20 themes. Given its relentless emphasis on the LiFE (developing an environmentally friendly lifestyle) campaign, India, as the G-20 president, should take the lead.
Source: https://www.thehindu.com/opinion/op-ed/international-courts-and-climate-change/article66564780.ece