Ask the Expert: Vanuatu’s Proposed Request For an Advisory Opinion from the World Court
Contribution by Aleksandra Balyasnikova-Smith
About the author
Dr. Aleksandra Balyasnikova-Smith is a lawyer and researcher in the field of international environmental law. She is a Member of the World Commission on Environmental Law of the International Union for Conservation of Nature.
12 February 2023
On 29 November 2022 Vanuatu, on behalf of a group of States, put forward a draft Resolution containing a request for an advisory opinion (AO) to be sought from the International Court of Justice (ICJ / the Court). It is intended to be voted by United Nations General Assembly (UNGA) in its seventy-seventh session, that is, before September 2023. The full text and background of the draft Resolution, as revised, are available at vanuatuicj.com.
Although the operative paragraph of the draft Resolution refers to the proposed question in a singular form, there are at least three questions, namely:
[1] “Having particular regard to the Charter of the United Nations, the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, the United Nations Framework Convention on Climate Change, the Paris Agreement, the United Nations Convention on the Law of the Sea, the duty of due diligence, the rights recognized in the Universal Declaration of Human Rights, the principle of prevention of significant harm to the environment, and the duty to protect and preserve the marine environment… 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 present and future generations;
[2] What are the legal consequences under these obligations for States which, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to… 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?
[3] [What are the legal consequences under these obligations for States which, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to…] peoples and individuals of the present and future generations affected by the adverse effects of climate change?”
Provided that (i) States with vested interests in fossil fuels industries do not undermine this initiative (see e.g., Beck & Burleson, 2014 at 26), and (ii) the UNGA passes the Resolution, there are several scenarios in this matter. In this opinion, I will consider the prospects of (a) acceptance of the request by the ICJ, (b) probable conclusions of the Court, and (c) the impacts of the AO on the behaviour of States.
(A) Will the ICJ accept the request to give an AO?
This depends on the Court’s findings concerning its jurisdiction and discretion (see e.g., Chagos AO, para 54).
Firstly, the ICJ will consider whether (i) the body requesting the AO is authorized to make the request (see Statute of the ICJ, art 65), and (ii) the AO requested relates to a ‘legal question’. As the proposed requesting organ, the UNGA is authorized to ask for an AO on any legal question (see UN Charter, art 96). Indeed, as the Court previously held, the UNGA “has competence in any event to seize the Court” (see Nuclear Weapons AO, para 11). Moreover, questions “framed in terms of law and raise problems of international law… [are] questions of a legal character” (see Western Sahara AO, para 15). In the present case, the questions require the determination of the obligations of States under international law and the implications of those obligations. In the circumstances, the jurisdiction of the Court will likely be founded.
Secondly, in its discretionary power, the Court will ascertain whether there are reasons that may prevent it to exercise its jurisdiction. The ICJ previously indicated that (i) “it should not, in principle, refuse an advisory opinion”, and (ii) “only compelling reasons could lead it to such a refusal” (see e.g., Nuclear Weapons AO, para 14). In the history of the Court, out of some 28 requests, there was only one occasion when the application for an AO was rejected. This was due to the question sought not being within the scope of activities of the requesting body (see Nuclear Weapons in Armed Conflict AO, paras 31–32). In the present case, as already mentioned, the UNGA is the proposed requesting organ, and it is not restricted to asking questions only within the scope of its activities.
Possible compelling reasons may also be raised by the participants in the advisory proceedings (see e.g., Kosovo AO, paras 29–48). Since advisory opinions (AOs) are not given to States but to the United Nations to assist the organization in the determination of a legal situation (see e.g. Peace Treaties AO at 71), it is generally difficult for any State to preclude the ICJ from providing an opinion. In the present case, the wording of the questions in the draft Resolution does not seem to raise a reason for rejection or concern. In particular, the questions do not ask the ICJ to make new laws but to examine existing international obligations of States in the context of the adverse impacts of climate change. Indeed, the initiative’s originators caution that failure to take drastic climate action globally may be terminal for some of the most vulnerable States. On the balance, the proposed request for an AO will likely be accepted by the Court
(B) What will be the probable conclusions of the AO?
The drafters of the proposed AO have indicated that the opinion being sought should clarify the obligations of States, encouraging them to take stronger action regarding climate change and increase their ambition. The problem is that under this Paris Agreement, the Nationally Determined Contributions (NDCs) are worded as political commitments, not legal obligations (see Paris Agreement, arts 3, 4). This means that the Court will likely describe the duty to curb anthropogenic emissions only in general terms (see e.g., Barnes, 2022 at 27) while deferring the question of individual reduction measures to States.
The proposed questions may also require consideration of customary principles on state responsibility as codified in the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). According to these principles, an injured or specially affected State may invoke the responsibility of the State that has breached the relevant international obligation (see ARSIWA, art 42). While it may be useful to have the Court clarify the obligations of States which caused significant harm to the climate system and other parts of the environment, it may be problematic to invoke their responsibility in practice. This is due to the difficulty of establishing causation (see e.g., Maljean-Dubois in Mayer & Zahar, 2021 at 24). Therefore, a more nuanced approach asking the Court to specifically clarify the element of causation in the context of adverse impacts of climate change on vulnerable groups could be useful. Although an adversarial approach is not necessarily conducive to global cooperation and action, a clarification of the consequences of causing harm (see questions (1)&(2) above) may serve as a deterrent for the relevant States.
Since the AO is sought against the backdrop of unequivocal scientific consensus on climate change impacts, it increases the optimism that the Court will be able to reach a definitive conclusion concerning the duty to reduce emissions. Additionally, the recent legal breakthroughs further equip the Court to clarify the obligations of States to protect the climate system and the consequences of causing significant harm to it. These developments include (i) the recognition of the human right to a clean, healthy and sustainable environment, (ii) the Torres Strait Decision (concerning the violation of the right to life by failure to protect the indigenous Islanders from adverse impacts of climate change), and (iii) the agreement to establish the Loss and Damage Fund. Moreover, with the wealth of existing international instruments (see question (1) above), the ICJ should be able not only to synthesize the existing principles but also to indicate whether any of the soft law principles have crystallized as customary law. This is in line with the understanding that the progressive development of law is integral to the work of the Court.
Despite the ICJ being considered a conservative court, the attitudes of its judges have been sympathetic to the protection of the environment and the vulnerable. For example, in the Gabcikovo-Nagymaros Case, the ICJ restructured the treaty regime between the parties, taking into account not only the changed circumstances but also the legal developments that took place since the conclusion of the treaty (see Gabcikovo-Nagymaros Case, para 140). Although the decision did not create new law (since the treaty already had an enabling provision), the Court read into the agreement a requirement to re-evaluate the environmental risks using the standards of sustainable development that post-dated the treaty. In the present case, the scientific evidence warns about the narrowing window for climate action to secure a liveable future, especially for the most vulnerable. Furthermore, as UNGA recently noted, the right to a clean, healthy and sustainable environment is related to other rights and existing international law (see UNGA Resolution 76/300, para 2). Accordingly, these considerations may have implications for the scope of obligations of States in the subject matter.
In terms of protection of the vulnerable, in the South-West Africa AO, the Court held unanimously that the Mandatory Power could not modify the status of the Territory unilaterally, but only with the consent of the United Nations (see South-West Africa AO at 141, 144). By upholding the interests of the inhabitants of the Territory as the beneficiaries, the Court did not hesitate to protect the vulnerable group in question. Likewise, in the Chagos AO, the Court found that the decolonization of Mauritius was not conducted in a manner consistent with the right of peoples to self-determination. Accordingly, the continued administration of the Chagos Archipelago constituted a wrongful act and entailed international responsibility (see Chagos AO, para 177). The ICJ held that the responsible State must urgently its administration of the Archipelago to an end, and all States must cooperate with the United Nations to facilitate the completion of the decolonization (see ibid, para 182). This finding reiterates that the protection of vulnerable groups is in the interest of the entire international community.
In the present case, the vulnerable groups affected by the adverse effects of climate change include Small Island Developing States (SIDS) (see question (2) above), and peoples and individuals of the present and future generations (see question (3) above). The latter category thus includes world youth. Concerning the SIDS, the draft Resolution specifies that their geographical location and level of development place them in the category of injured or specially affected States. In the determination of these questions, the environmental principles of (i) common but differentiated responsibilities and (ii) intergenerational and intragenerational equity (see e.g., (see Paris Agreement, art 2(2)) may be helpful. However, due to their soft law character and remaining uncertainties in their definition, these principles are not yet enforceable and as such do not afford legal protection to the intended right-holders. In the circumstances, the Court will likely highlight the gaps in the legal protection of these vulnerable groups. Perhaps, it could be useful to also request the ICJ to clarify the nature, sources, and scope of the rights of subjects that are injured or specially affected by the adverse effects of climate change.
(C) What impact will the AO have on States’ behaviour?
Although AOs are not legally binding, they contain authoritative pronouncements on legal questions and may influence the future direction of international law. Moreover, the requesting organ, in this case, the UNGA, may decide what effect to give to the AO. Despite the lack of legal force, AOs may be binding in practice if they concern the rights and duties of States. Additionally, AOs may trigger an action from other organs of the United Nations to facilitate the performance of the obligations by States. For instance, the Secretariat of the United Nations Framework Convention on Climate Change (UNFCCC) may be able to rely on the Court’s opinion to encourage States Parties to either increase their ambition under the Paris Agreement or negotiate a more robust instrument to meet the objective of the regime (which is to prevent dangerous interference with the climate system per UNFCCC, art 2).
As noted earlier, a clarification of the consequences of causing significant harm to the climate system and other parts of the environment may serve as a deterrent and foster the relevant States to reduce their emissions. Even if the Court does not confirm the heightened duties of States in the matter, the proposed AO will likely reinforce for the international community the need to urgently protect the global environment and the most vulnerable.
Conclusion
In the context of the worsening environmental crisis, the proposed request for an AO is a timely opportunity for the ICJ to clarify the obligations of States to protect the global environment and the vulnerable groups impacted by the adverse effects of climate change. Considering the wide competence of UNGA in requesting an AO, there is a strong prospect of acceptance of the proposed request by the ICJ. In the context of existing international law, the conclusions of the Court will likely describe the duty to curb emissions only in general terms while deferring the determination of levels of reductions to States. However, the weight of scientific evidence and the recent developments in the field of human rights may help the ICJ to reach a more definitive conclusion concerning the duty to reduce emissions. In terms of the impact on the behaviour of States, the AO will likely facilitate further reduction of emissions or at least authoritatively reiterate the urgent need to do so.
