What was once a “turn” in climate litigation, has now become its central driving force. This series has documented some of the ground-breaking climate and human rights decisions in Courts across the globe. However, a key gap remains. The International Court of Justice – the world’s highest court – is yet to intervene on the real and imminent challenges of climate change.
The road to an Advisory Opinion
In 2011, Palau and the Republic of Marshall Islands unsuccessfully campaigned for an Advisory Opinion from the Court on the legal responsibilities of States with respect to the harm caused by carbon emissions. Palau and other low-lying island States are particularly vulnerable to the effects of the climate crisis. Ocean acidification and exploitation of maritime resources threatens the livelihoods of those in the region, while rising sea levels threaten their very existence. Ten years later, as the climate crisis worsens, the need for an authoritative decision from the ICJ has become more even more acute.
Although Advisory Opinions are not, strictly speaking, binding, the procedure has resulted in foundational international law decisions. From the Reparations Opinion, which recognised the international legal personality of non-State actors, to the recent Chagos Archipelago Opinion, which developed the right to self-determination, the potential of an Advisory Opinion to shape international law should not be understated.
There are two reasons why an Advisory Opinion from the ICJ is crucial at this juncture. First, it would put the nexus between climate change and human rights on firm international law footing. The value of an Advisory Opinion is not as a directly enforceable judgment, but rather as a highly authoritative statement of what the Court believes the law to be. A thorough survey of state practice by the ICJ would undoubtedly contribute to the crystallisation of customary international law. The Court would also elucidate any existing obligations that States have in this area. This would clarify the law, making it easier for supportive States to comply, and for them to put pressure on recalcitrant States. Second, an Advisory Opinion would provide a powerful statement of scientific consensus that would be highly influential. Apart from an inevitable downstream influence on national and international courts, any statements of principle that the Court makes would become powerful tools for advocacy and activism. Given the limited reference to human rights in the Paris Agreement, there is a gap on the international level that urgently needs to be filled.
We, Youth of the World
The demand for authoritative guidance from the ICJ was initiated by a group of 27 students from the Pacific Islands – the people on the frontlines of the climate crisis. Indeed, two key principles underlying the intersection between climate and human rights are intragenerational and intergenerational equity. Intragenerational equity is the recognition that the climate crisis has a disproportionate impact on States in the global south, and the world’s poor more generally. Intergenerational equity recognises that these impacts will be felt acutely by future generations. The inequity is sharpened by the fact that States in the global south and young people have the least historic responsibility for emissions.
With the support of World’s Youth for Climate Justice (WYCJ) the movement has gone global, bringing young people from around the world together. Currently, we are preparing a research report, building on the work done ten years ago on the Yale Report supporting Palau’s campaign. Going beyond a focus on transboundary harm, it will be a deep exploration of the international law issues surrounding climate and human rights. Additionally, we are spreading the word by story-telling in our communities, communicating with our governments, and peer-educating on the role of international law and the connection between the climate and human rights. Following the release of the report at the UN Conference on Sustainable Development, we will be looking for partners everywhere around the world to put pressure on governments to support the initiative at the General Assembly.
We the WYCJ do not accept the fate of an unjust, unequal, and unsustainable future. The ICJ Advisory Opinion campaign signals to the world a concrete and well-justified catalyser for more ambitious climate action.
Join us on our journey to take the world’s biggest problem to the World’s Highest Court.
This post forms part of the Litigating for Climate Justice: Views from the Frontlines blog series.