Climate Change and International Law: The Promise of an Advisory Opinion from the International Court of Justice

On June 21st, for the second day of the event, the Ambassador Odo TEVI, Vanuatu’s Special Envoy on Climate Change and Permanent Representative to the UN, chaired the first panel of guests who talked about the potentialities of asking the International Court of Justice for an Advisory Opinion (AO) on climate change.

The first speaker was Lavanya RAJAMANI, law professor at the University of Oxford. She presented the limits of international climate change regime which is completely based on the research for a consensus that is very difficult to find because of the different incentives for action and inaction that change from a country to another. The UN climate change regime is built on binding procedural obligations to communicate national goals. However, it provides no mechanisms to verify them internationally and no obligations to have results. The second limit pointed out by Prof. RAJAMANI is that the UN regime doesn’t provide mechanisms to generate accountability to reach the targets decided by the states all together. She also pointed out two other issues. The first one concerns the lack of balance between those countries which are contributing the most to climate change and those who suffer from it. The developing countries’ contribution is conditional and depends on financial help and support but actually there is not enough help provided, creating therefore a mismatch between promises and what is really furnished. Secondly, she mentioned the Paris Agreement and two avenues that have been addressed back then: the obligation of states to provide information of how their contribution is fair and their equitable contribution to the global stock take, recognizing adaptation efforts of developing country Parties

In her opinion, an advisory opinion could help clarify some Paris Agreement points and interpret it in the light of harm prevention and due diligence. It could also link some principles of the Paris Agreement with other obligations Parties have taken toward human rights. Then, Cristelle PRATT, member of the Organization of African, Caribbean and Pacific States, presented the OACPS and the issues they address. It is an organization created by the Georgetown Agreement in 1975. It is composed of 79 African, Caribbean and Pacific states, with all of them, save Cuba, signatories to the Cotonou Agreement, also known as the “ACP-EC Partnership Agreement” which binds them to the European Union. There are 48 countries from Sub-Saharan Africa, 16 from the Caribbean and 15 from the Pacific.

The main objectives of the OACPS are:

• sustainable development of its Member-States and their gradual integration into the global economy, which entails making poverty reduction a matter of priority and establishing a new, fairer, and more equitable world order;
• coordination of the activities of the OACPS in the framework of the implementation of ACP-EC Partnership Agreements;
• consolidation of unity and solidarity among Members of the OACPS, as well as understanding among their peoples;

• establishment and consolidation of peace and stability in a free and democratic society.

Ms. PRATT reminded that Climate Action is a need for the OACPS because its member states are considered as vulnerable. She stressed that all Parties have to meet their commitments equitably. She considers that the advisory opinion should be an OACPS lead initiative and globally handled then.

The last speaker of the panel was Laurence BOISSON DE CHAZOURNES, law professor at the University of Geneva. She asked what has already been done by the ICJ in the field of environment and human rights? Everything started in the early 1990s with the Rio Conference. The Court established in 1990 a Chamber to deal with environmental disputes but it actually has never been used. She mentioned the AO on nuclear weapons. At this occasion, the court gave a definition of environment and said that the obligations of states are part of customary national law. The ICJ also said that evolving interpretation is necessary, and that we should reinterpret treaties afterwards though they don’t deal directly with environmental and human rights issues. The court gave some meaning to the concept of prevention and introduced the notion of conducting environmental assessment. The ICJ has now to deal with scientific matters. Scientists also have a say in this case.

She also wondered how the IPCC could have an influence on that AO. Prof. BOISSON DE CHAZOURNES said that before the AO, we should put pressure on states to strengthen environmental policies and that other spaces for action can be developed. The AO is coming at an opportune moment when we have scientific evidence of human impact on climate change.

The second panel of the morning, composed of young activists committed in legal actions, was chaired by Solomon Yeo from the Pacific Island Students Fighting Climate Change. This panel brought together the youth to share good stories and share with the guests their commitments.

The first speaker was Aiofe Fleming, stubborn optimist part of the World’s Youth For Climate Justice movement. She explained how the WYCJ members campaign for an AO, one of the ways being the report written by around 20 students from all around the world. Moreover, they try to bring young lawyers into it, and focus also on education and on bringing young people into policy making process and decisions. Another tool and action is building a network of people who believe in this, as the organizers of the movement successfully did by gathering interested young motivated people to a training in Berlin in October 2021.

• Nicole Ponce 
• Khulekani Sizwe Magwaza
• Jean Marc Touvenin