What is the ICJ?

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN). It was established in June 1945 by the Charter of the United Nations and began work in April 1946. The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six principal organs of the United Nations, it is the only one not located in New York (United States of America). The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.The Court is composed of 15 judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council. It is assisted by a Registry, its administrative organ. Its official languages are English and French.

Source: www.icj-cij.org

What is an Advisory Opinion?

An advisory opinion is legal advice provided to the United Nations or a specialized agency by the International Court of Justice, in accordance with Article 96 of the UN Charter. The General Assembly and the Security Council may request advisory opinions on "legal questions arising within the scope of their activities".

Source: www.un.org

Find out more on advisory opinions.

Why do we need an Advisory Opinion? 

To answer this important question we offer verbatim quotations from the UN Human Rights Council report 41/39, issued June 2019:

“[T]ransformational action is urgent; human rights can and must be part of the solution. The delusion that climate change is really a technical issue, or solely a political matter, and that human rights law has only a minor role to play must be abandoned.

The human rights community could play an important role clarifying the legal requirements around climate action, facilitating the participation of affected communities, ensuring that strategies employed for attaining targets and adapting to climate change comply with human rights law, and advocating for their implementation and enforcement through both litigation and traditional human rights advocacy.

Human rights law requires a remedy for violations, and climate change is no different. Given what is now known about the widespread harm and human rights impact of either 2 or even 1.5 °C of warming, it is also necessary to determine what measures States must take to provide the required remedies for the all but certain human rights violations that climate change will bring. Human rights actors have an important role in identifying what such remedies will require.

Human rights treaty bodies and others should weigh in on questions that are already hotly contested in courthouses and parliaments, including how human rights obligations can be used to define States’ legal duties to reduce greenhouse gas emissions individually and at a global level, what are the minimum actions that States must take in line with the latest scientific guidance, and whether human rights law gives rise to a certain threshold of action below which a State is in violation of its obligations.”

Among the core themes of the report quoted above is that human rights law needs to be brought systematically to bear on climate change responses. An ICJ AO on human rights and climate change is the best method by which this can be achieved at all levels.

How do we benefit from obtaining an AO? 

It is widely recognized that the climate crisis is going to have a significant effect on human rights. Climate change has been shown to exacerbate pre-existing inequalities and human rights challenges such as poverty, well-being, wealth inequality, gender relations, and many others. Vulnerable populations are affected by this first and the strongest. We need authoritative international guidance on what means for states and their responsibilities in respecting, protecting and fulfilling these obligations. 

There are several international human rights treaties that provide for obligations relating to a clean and healthy environment. The UN Special Rapporteur on Human Rights and the Environment, John Knox in his report ‘Safe Climate’ extends this relation to climate change and human rights: 

“Human rights obligations are reinforced by international environmental law, as States are obliged to ensure that polluting activities within their jurisdiction or control do not cause serious harm to the environment or peoples of other States or to areas beyond the limits of national jurisdiction. Given the foreseeability of increasing climate impacts, this well-established “no harm” rule of customary international law is being violated as a result of greenhouse gas emissions, which, regardless of where they are emitted, are contributing, cumulatively, to adverse effects in other States, including small island developing States. The Urgenda case in the Netherlands is an important precedent, as the Court relied on international human rights law to hold the Government of the Netherlands accountable for fulfilling commitments the Government itself says are necessary to prevent dangerous climate change.”

Currently it seems that our understanding of those obligations with regards to climate change are mostly theoretical and limited to an academic community. 

1. Cementing consensus on the scientific evidence of climate change – an ICJ advisory  opinion provides an excellent forum to endorse the best scientific findings on  anthropogenic climate change, including the Intergovernmental Panel on Climate  Change Special Report on Global Warming of 1.5°C. The Court has recently  demonstrated a willingness to engage with complex and competing scientific claims. Importantly, ICJ findings of fact on climate change “would be of great authority in  proceedings before other international courts and tribunals, and before national  courts”.

2. Providing impetus for more ambitious action under the Paris Agreement – the nature  of the Paris Agreement is one in which states voluntarily commit to emissions  reductions. Given the shortcomings of the commitments made to date, there remains  the task of continually encouraging greater ambition. An ICJ advisory opinion on  climate change is one method through which parties to the Paris Agreement may be  further encouraged to commit to a level of emissions reductions that are in line with the ultimate objective of the international climate change regime: preventing dangerous  anthropogenic interference with the climate system. 

In this we agree with Professor Sands: “The ICJ . . . can and does play a useful role in  developing the law, and contributing to a change of consciousness, and these  developments can in turn catalyse new and needed actions: by states, by international  organisations, by the private sector, by NGOs, and by individuals. A clear statement by  a body such as the ICJ – as to what is or is not what required by the law, or as to what  the scientific evidence does or does not require - may itself contribute to change in  attitudes and behaviour.” 

3. Integrating areas of international law that are currently separate, such as human rights  and environmental law – International law develops in an incremental and piecemeal  fashion, leading to a separation between different areas of law. International climate  change law arose from an environmental treaty process, but failure of that process to  achieve its objectives now means that our human rights are threatened by a changing  climate. 

A core role of ICJ advisory opinions is developing and clarifying international law. The  ICJ is the only global judicial body that can hear evidence of law and fact on the great  range of critically important legal issues that are impacted by climate change and  ultimately provide an opinion integrating consideration of them all. This would in turn  enhance the effectiveness of the international legal system in tackling climate change,  for example by bolstering the authority of human rights bodies to address climate  change under their respective mandates.  

4. Providing authoritative baselines for state action on mitigation and international  cooperation and assistance– in view of all of the above, there is potential for an ICJ  advisory opinion to provide, whether expressly or implicitly, authoritative baselines  for state action on reducing greenhouse gas emissions based on their existing  obligations to respect, protect and fulfil human rights and parallel obligations under  international environmental law. An advisory opinion could also consolidate the  specific obligations of developed States to assist developing States on climate action  through finance for mitigation, adaptation and addressing loss and damage. 

5. Providing impetus and guidance for domestic, regional and international adjudications 

ICJ findings on climate science and law would be of great authority in any relevant future proceedings before other international courts and tribunals.  While each domestic legal system adopts its own approach to international case law, such findings could also be influential both in encouraging claimants to bring matters before national courts, as well as in their ultimate determinations. An advisory opinion could therefore pave the way for successful litigation against governments and corporations that are responsible for climate change and its consequences. Such litigation could seek preventive action, compensation for losses and damages resulting from climate change, or both. 

We already have the Paris Agreement. Why do we need an AO? 

The nature of the Paris Agreement is for countries to voluntarily commit to emissions reductions. Given the shortcomings of the commitments made to date, there remains the task of continually encouraging greater ambition. An ICJ advisory opinion on climate change is one powerful method through which parties to the Paris Agreement may be further encouraged to commit to a level of emissions reductions that would enable the treaty to meet its objectives.

An ICJ AO is not a legal approach that targets or attacks any country. It is rather a process that seeks to clarify the status of international law; there is no justification for any UNFCCC Party to be antagonised by it or to refer to it as a reason not to proceed with treaty processes as usual.

How long would it take for the ICJ to deliver an Advisory Opinion? 

The Advisory Opinion can be requested by the UN General Assembly with urgency. In that case, the Court will look at the matter with speed. The climate crisis warrants urgency, and therefore we believe the Court will deliver the Advisory Opinion speedily. Nonetheless, from the moment the UN General Assembly requests the Advisory Opinion to the point of delivery by the Court, is still a process that could take up to two years.

For more information on how the court makes its decision, please visit Advisory Opinion 101

Is the Advisory Opinion legally binding? 

An Advisory Opinion is not legally binding. However, it does carry significant legal weight. In addition, the ICJ is the highest court in the world and its Advisory Opinions therefore have moral authority. 

The influence of international courts typically resides not in the coercive enforceability of their judgements but instead in the moral and legal authority carried by the considered views of a respected judicial body. The ICJ is the highest court in the world and an ICJ opinion would apply to all UN member states, translating through regional and domestic adjudications into increased state responsibility for climate change.

What is the difference between an Advisory Opinion and a dispute (i.e. a contentious case) between States?

There are two types of proceedings at the ICJ. One is the contentious proceedings, where the Court will settle a dispute between States. The other is the advisory proceedings, where the Court will settle a legal question. An Advisory Opinion is thus not litigation against States, but rather a focus on the development of international law.