The ICJ and the climate crisis - what could an advisory opinion mean for international law and co-operation?

Background to the advisory opinion

The 29 March 2023 Resolution was prompted by the Republic of Vanuatu, which led 18 States to prepare a draft resolution and successfully galvanised the support of 132 co-sponsor States.

In the Resolution, UNGA recognized that ‘climate change is an unprecedented challenge of civilizational proportions’ and that small island developing states are experiencing an increase in adverse effects of climate change, such as sea level rise, coastal erosion and the displacement of affected persons.

Pursuant to Article 96 of the Charter of the United Nations, UNGA resolved to request the ICJ to opine on the following questions in accordance with Article 65 of the ICJ Statute:

‘(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, with respect to:

(i) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?

(ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?’

Why is this Resolution significant for climate justice?

The Resolution recognizes the urgency of addressing the adverse effects of climate change and its disproportionate effects on vulnerable developing countries and small island States.

The Resolution is the third recent request for an advisory opinion relating to State obligations to address the adverse effects of climate change before various international fora, although the first to be submitted to the ICJ. The first request was submitted by the Commission of Small Island States on Climate Change and International Law to the International Tribunal for the Law of the Sea in December 2022.  The second was a joint request by Chile and Colombia for an advisory opinion from the Inter-American Court of Human Rights in January 2023.

The Resolution is both substantively and geographically broader than the previous requests. It is particularly significant as it involves a request to the ICJ, which has only issued 28 advisory opinions. 

If the ICJ issues an advisory opinion, it could clarify and develop international law in respect of State obligations to address the climate crisis. In particular, the second question posed to the ICJ (e.g. relating to the legal consequences of a State) may enable the ICJ to articulate a principled basis for climate accountability under international law.

What will happen next and what are the likely timescales?

The request was communicated to the ICJ, and received in the ICJ Registry on 17 April 2023. The Secretariat of UNGA is preparing a dossier of relevant documents, to be transmitted to the ICJ.

The ICJ has informed all States and international organizations that are authorized to participate in the proceedings. It has confirmed that it is prepared to receive written statements on the questions by 20 October 2023, and comments on written statements by 22 January 2024.

The ICJ will then deliberate and deliver its advisory opinion in open court. Declarations and separate or dissenting opinions may be appended.

The advisory opinion should be issued within two years from the time of the request (around late 2024 or early 2025). 

What impact will the ICJ’s advisory opinion have?

Although the ICJ’s advisory opinions are not binding, they carry ‘great weight and moral authority’. They may be relied on before courts (whether international, regional or domestic) or arbitration tribunals.

The ICJ may issue an advisory opinion confirming that States have clear obligations to avert or mitigate the adverse effects of climate change and that they could face consequences for significant harm caused to small island developing States. This would likely increase climate-related proceedings against States before international and regional courts and potentially also investment treaty arbitration tribunals. Aspects of such an opinion may also be deployed in domestic courts to strengthen the positions of claimants in domestic climate litigation.

Such an opinion could also act as a catalyst for international cooperation on addressing climate change. For instance, the advisory opinion could be leveraged in climate-related negotiations involving States and used to strengthen climate-related activism and influence public opinion within States.

However, should the ICJ issue a more limited opinion, this may conversely discourage proceedings against States for their failure to protect small island developing States.

There are promising developments for small island developing States elsewhere. For example, the Resolution follows from the United Nations Human Rights Committee’s watershed decision in September 2022 that Australia failed adequately to protect indigenous Torres Strait Islanders from the adverse effects of climate change. The ICJ advisory opinion, if consistent with the tenor of the Human Rights Committee’s decision, will be another step towards the advancement of climate justice for small island developing States.

* This article was first published in longer form on Lexis®PSL on 26 April 2023 and can be found here (subscription required).