A group of 16 countries has launched an effort to fight the problem of climate change at the United Nations (UN).
Led by Vanuatu, which is an island nation in the South Pacific Ocean, the group seeks an advisory opinion from the International Court of Justice (ICJ) regarding climate change.
Jurisdiction of ICJ
- Contentious and advisory are the two types of jurisdictions of ICJ. Contentious jurisdiction concerns resolving legal disputes between consenting states.
- Under advisory jurisdiction, the UN General Assembly (UNGA), the Security Council (SC) and other specialized bodies of UN can request the ICJ for an opinion on a legal question.
- Despite advisory jurisdiction being non-binding, they carry normative weight and clarify international law on a relevant issue.
- The advisory opinion tendered by ICJ will be handy in climate-related litigation at the national level.
Initiative of Vanuatu
- Small Island Developing (SID) states such as Vanuatu are some of the most vulnerable to rising temperatures and sea levels.
- Despite presence of several international legal instruments on climate change such as the UNFCCC, the Kyoto Protocol and the Paris Agreement, the international community has failed to deliver concrete solutions to the problem of climate change.
- Countries have failed to narrow their differences on critical issues such as reducing greenhouse gas and net zero emissions.
- The initiative was launched by Vanuatu through the UNGA, to seek an advisory opinion from the ICJ to “clarify the legal obligations of all countries to prevent and redress the adverse effects of climate change”.
- The initiative has received significant support, with reportedly more than 100 countries backing the idea.
What is the Opinion Sought from ICJ?
- International Law Obligation: The resolution seeks to enquire law obligations of countries toward the climate system protection from anthropogenic emissions of greenhouse gases for the present and future generations.
- ICJ will not only have to interpret and clarify the existing international climate change law enshrined in various international environmental treaties but also use the general and customary international law (CIL) to address the gaps in these treaties.
- The ICJ can use the ‘no-harm’ principle (states are under an obligation that activities within their jurisdiction do not damage other countries) to show the equivocal provisions of the Paris Agreement.
- Legal consequences: Identifying legal consequences for states that have caused significant damage to the climate system, the SID states and other people of the current and future generations.
- ICJ will need to determine the price that states have to pay for not honouring their international legal commitments on climate change.
- There has always been a demand that rich countries that have historically caused maximum greenhouse gas emissions to compensate developing countries bearing a disproportionate consequence of climate change.
- The COP-27, which had agreed to establish a “loss and damage” fund to financially assist vulnerable developing countries, does not clarify on which countries will provide the funding.
- Since the connection between climate funding and role of developed countries in emissions is yet to be determined, ICJ will have to focus on the legal principles that might help the operationalization of the ‘loss and damage’ fund.
Role of International Tribunal for the Law of the Sea (ITLOS):
- The Commission of Small Island States on Climate Change and International Law has sought the advisory opinion of the International Tribunal for the Law of the Sea (ITLOS).
- ITLOS will have to determine the specific obligations of the countries under the United Nations Convention on the Law of the Sea about preventing, controlling, and reducing marine pollution.
- The existing climate challenges such as ocean warming, sea level rise and ocean acidification are all linked to the marine environment.
Conclusion
- Advisory opinion may not be the solution and may even turn out to be double-edged sword depending on the nature of verdict delivered.
- However, the role of international courts in making efforts to save our planet must be welcomed. Such efforts by SIDs must be supported by developed countries and groupings like the G-20.
- India, as the President of G-20, must take a lead given its emphasis on LiFE (developing environment-friendly lifestyle) campaign.
