Intervening where Climate Diplomacy has Failed - The Potential of an Advisory Opinion on Climate Change

Intervening where Climate Diplomacy has Failed - The Potential of an Advisory Opinion on Climate Change

By Katharina Neumann, Deputy Editor, SS Law and Political Science

The last Conference of the Parties, the supreme decision-making body of the United Nations Framework Convention on Climate Change (UNFCCC), serves as a distressing example of the insufficient political and diplomatic efforts to combat climate change. In light of this, those at the frontline of climate change are reverting to measures outside of established international frameworks to combat the crisis. Litigation, for example, has recently become an increasingly successful tool to hold governments and businesses accountable. This is illustrated by the famous Urgenda decision (Urgenda Foundation v State of the Netherlands), a Dutch Supreme Court case that established a duty of care on behalf of the Government towards its citizens in climate change matters; or the Shell ruling, (Milieudefensie et al v Royal Dutch Shell plc) which required the company to reduce its global emissions by 45 per cent by 2030. Encouraged by these outcomes in national courts, the Pacific Island nation of Vanuatu recently announced that it will take international initiative by seeking an advisory opinion from the International Court of Justice (ICJ) on climate change.

Vanuatu is an island state in the Pacific with a population of 307,000 people living on 83 different islands. Island states such as Vanuatu are on the frontline of the effects of climate change, facing rising sea levels and more regular storms that are progressively derailing their economies and will over time threaten their very existence as a country. Vanuatu is therefore a standing example that current efforts to reduce climate change, particularly action taken for disproportionately-affected developing countries within current multilateral mechanisms such as the Paris Agreement, are insufficient. By seeking an advisory opinion from the ICJ, Vanuatu has a justified intent to re-establish and clarify the current and future legal obligations of all countries, with a goal of preventing and redressing the adverse effects of climate change and establishing clear standards for climate action. A secondary goal of this submission is the rectification of the clear failings of international climate change negotiations over the past 30 years, as Vanuatu’s position becomes increasingly precarious as a direct result. Vanuatu will rely on Article 96(1) of the UN Charter, which gives the General Assembly (UNGA) the authority to request advisory opinions from the ICJ. This would have to be supported by the majority of UN member states. It is a tactical gamble by the small island state, as this decision increases the legitimacy and profile of the request but will also make it more difficult to achieve when it is required to be approved by the General Assembly.

Issuing advisory opinions is one of the ICJ’s three major functions. Under Article 65(1) of the ICJ Statute, the Court may give an advisory opinion on “any legal question” at the request of a body authorised to make such a request. While advisory opinions are non-binding, they are still influential in the development of international law and identification of its status, as they express the view of the foremost authority of international law on a particular issue. The purpose of advisory opinions is not to settle a legal dispute, but to assist the requesting organ in its efforts to deal with the contested issue. Thus, one crucial characteristic of advisory opinions is that they do not demand the consent usually required from a state whose actions may be the object of the Court’s attention.

climate crisis. Although the lack of effective enforcement mechanisms might lead to countries not paying heed to the ICJ’s opinion, the court has produced advisory opinions that have been instrumental in establishing essential doctrines of international law. For example, in its 1951 advisory opinion on the Genocide Convention, the ICJ sought to invent a new, flexible approach to treaty reservations, which remains foundational to the application of international law today. In the 2010 Kosovo advisory opinion, the court established that declarations of independence are illegal when associated with the unlawful use of force. This has since played an important role in developing international law on secession. Considering these precedents, it can be inferred that an advisory opinion on climate change could be a foundational step in incentivising formal international legal obligations on states to reduce emissions and to redress harm associated with climate change impacts by involving fundamental international legal principles such as state responsibility for harms associated with the impacts of climate change (the no-harm principle), and related due diligence obligations. International environmental lawyer Daniel Bodansky argues that an opinion could set the terms of the debate, provide evaluative standards, and establish a framework of principles to develop more specific norms. In time, this may ultimately shape public consciousness and define normative expectations. An ICJ advisory opinion could thus clarify and progress political and diplomatic efforts.

Setting a common legal language for climate change has several advantages. First, it appropriately and proportionately bolsters the position of climate-vulnerable states such as Vanuatu in international climate negotiations, as it may enable clear recognition of the physical and economic loss faced due to climate change and establish ways to rectify this in the future. Further, an opinion might bring cohesion to states’ fragmented international obligations in this area. This could be especially helpful in light of increasing national climate litigation as it establishes a common language that national courts might use in order to strengthen judicial climate activism, and can affect states’ positions in multilateral negotiations. Lastly, an advisory opinion can also help to establish an interpretive framework for existing climate treaties such as the Paris Agreement.

It could be argued that due to the complexity of climate change the factual issues would not be suitable for an advisory opinion.

However, the complexity of the question does not represent a significant challenge as the Court is supplied with abundant information to form a substantiated opinion.

Further, the ICJ must be credited to have contributed significantly to international environmental law before, including in the Corfu Channel case (United Kingdom of Great Britain and Northern Ireland v Albania), the Nuclear Test case (Australia v France) and the Gabcikovo-Nagymaros Project case (Hungary/Slovakia).

Ultimately, an advisory opinion on climate change could address the shortcomings of climate diplomatic efforts. Concrete advice from the World Court may lead to a more structured, legally enforceable response to the climate crisis. Although non-binding, an advisory opinion may act as a legal bedrock for intentional climate law and future climate action of the UNGA. Initiating a request for this opinion is a necessary and important step not just for Vanuatu, but all frontline nations experiencing the effects of climate change. The ICJ’s approach to advising on this complex yet legally-undefined international threat is eagerly anticipated.