A Final Draft for the ICJ Advisory Opinion on Human Rights and Climate Change

Update: to read Jorge Viñuales’ new piece on this topic, please visit this page : Climate Change and the Advisory Functions of the International Courts and Tribunals.

After several rounds of negotiation, a group of 18 countries forming the “ICJAO For Climate” Group have agreed on a final draft for a resolution that will be submitted to the UN General Assembly. Under the scope of Article 96 of the UN Charter, the UN General Assembly can request the International Court of Justice a non-binding, yet powerful, advisory opinion.

According to the ICJ, “advisory opinions carry great legal weight and moral authority. They are often an instrument of preventive diplomacy and have peace-keeping virtues. Advisory opinions also, in their way, contribute to the elucidation and development of international law and thereby to the strengthening of peaceful relations between States.”

As of January 2023 and since 1948, only 28 advisory opinions have been submitted to the ICJ either by the UNGA or by accredited organizations.

This draft resolution, if adopted, could lead to a 29th advisory opinion. It is a particularly crucial step for international environmental law as it would bring a deeper understanding of the link between Human rights and Climate change.

The draft contains two questions that the ICJ will have to address if the draft is endorsed by the UNGA :

• What are the obligations of States under international law to protect the climate system and other parts of the environment from anthropogenic emissions of greenhouse gasses for States and for present and future generations ?
• 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:
  • States, particularly 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?
  • Peoples and individuals of the present and future generations affected by the adverse effects of climate change?

Vanuatu and all core group members are presently calling on all States to sponsor the resolution at the UN General Assembly!