Giving Voice to the Vulnerable: How Advisory Opinions Have the Potential to Advance Climate Justice through International Courts

by | Oct 18, 2023

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About Lara Ibrahim

Lara Ibrahim is currently a Judicial Fellow at the International Court of Justice. She is a DPhil candidate in the Faculty in Law at the University of Oxford, where her doctoral research focuses on extraterritorial human rights obligations of States in the context of climate change. Prior to this, Lara completed the Bachelor of Civil Law at the University of Oxford and her undergraduate Law degree at the University of Sheffield.

In the context of the current climate crisis, climate change litigation has taken a new form over the past year. There have been increasing requests for advisory opinions from international courts and tribunals, focussed upon clarification of State obligations in the context of climate change. These advisory opinions have so far been requested from the International Tribunal for the Law of the Sea (ITLOS), the Inter-American Court of Human Rights (IACtHR), and the International Court of Justice (ICJ). At the ICJ and ITLOS, these requests were spearheaded by small island States, which are those most vulnerable to the impacts of climate change due to rising sea-levels, which threaten their very existence. Indeed, advisory proceedings also give these vulnerable States an opportunity to present their arguments.

In particular, the advisory proceedings at the ITLOS – concluding on 25 September 2023 – compel closer attention to the relationship between advisory opinions and climate justice. Climate justice involves looking at climate change and its impacts through a human rights lens, recognising that the distribution of the impacts of climate change are unequal.

Indeed, human rights considerations are central to these advisory opinions, as climate change threatens the enjoyment of rights such as the right to life, to private and family life, to self-determination, and to a healthy environment. During the ITLOS proceedings, States such as Chile and Bangladesh outlined how the detrimental effects on the ocean impact the human rights of their populations. In this vein, Chile argued that the Tribunal must take international human rights law obligations into consideration in their advisory opinion. The questions asked of the ICJ in the request for an advisory opinion also reference State obligations under the International Covenant on Civil and Political Rights (ICCPR), requiring the Court to address these obligations in the context of climate change.

The IACtHR’s advisory opinion will focus specifically on climate change and human rights, with jurisdiction over the American Convention on Human Rights, the Escazú Agreement, and other human rights and environmental treaties that apply to its member states. The questions posed to the IACtHR include clarification of the differentiated obligations of States to protect the rights of future generations from the impacts on climate change. This advisory opinion follows the landmark 2017 advisory opinion of the IACtHR, where the right to a healthy environment was recognised by the Court, alongside the intersection of human rights with the environment.

Although each of the upcoming advisory opinions has a different scope, the underlying notion is clear: international law and human rights are being utilised as a powerful tool to advance climate justice across the globe. Through advisory opinions, prominent international courts and tribunals have the opportunity to interpret and clarify obligations in the context of climate change and climate justice. Moreover, advisory opinions allow for broad participation of States, distinct from other forms of climate change litigation. This reflects the global cooperation needed to achieve climate justice. Importantly, climate-vulnerable States can participate in advisory opinions on an equal footing with other States, including major polluters. This was clearly demonstrated by the ITLOS proceedings which, as argued elsewhere, gave those States a ‘louder voice, both individually and collectively’ than they might enjoy in other political settings.

It is also worth noting the potential drawbacks of utilising advisory opinions to advance climate justice. Firstly, these opinions have no binding force. Although they have political heft which can lead States into compliance, in the context of an issue as polarising as climate change, it is unclear whether they are sufficiently compelling. Secondly, issues remain with how far these courts and tribunals can interpret human rights obligations as they relate to climate change. Judges cannot ‘create’ law in their opinions, and thus are limited to existing human rights law, which remains underdeveloped in the context of climate change and climate justice.

Nevertheless, the upcoming advisory opinions of the ITLOS, ICJ, and IACtHR present significant opportunities to further the understanding of State obligations under human rights law, which will contribute to the advancement of global climate justice. For those most vulnerable to the climate crisis, these opinions may offer hope for the future.

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