The United Nations just endorsed a landmark resolution on climate justice.
Last week, the UN General Assembly endorsed a Pacific-led resolution ask the International Court of Justice (ICJ) for guidance on a country’s climate commitments.
This has been hailed as one “Turning point in climate justice” and a win for the Pacific youth who ran the campaign.
But what does this UN decision actually mean? Does an advice from the ICJ add up to a gear? And what could be the legal consequences for wealthy countries, such as Australia, which have contributed most to the climate problem?
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What is an ICJ opinion?
The ICJ is the world court and the leading global authority on international law. It generally hears disputes between countries known as “contentious matters”, such as the 2010 case brought by Australia against Japan on whaling in the Southern Ocean. In that case, the court ruled in favor of Australia.
However, the IGH can also issue advisory opinions. This is a kind of general opinion on the status of international law on a particular subject. Opinions must be sought from one of the UN bodies or specialized agencies, such as the General Assembly.
The UN General Assembly will take place on March 29, 2023 dissolved to seek advice from the ICJ on states’ obligations related to climate change. That was based on a draft text submitted by the small Pacific country of Vanuatu.
This resolution was significant co-sponsored by 105 states, including Australia. It is the first time that the General Assembly has asked for an advisory opinion from the ICJ with unanimous state support.
The question asked to the IGH asks whether countries have an obligation to protect the global climate system. It also seeks advice on the “legal consequences” when countries’ actions or inactions cause significant climate damage to small island nations and particularly to future generations.
The UN will communicate the resolution to the ICJ in the coming weeks and the court will host hearings in the coming months. An opinion is expected to be issued six to twelve months later.
A victory for the Pacific
The adoption of the advisory resolution is an important milestone in a long-running struggle by small island nations in the Pacific and youth activists to ensure climate justice.
For these communities, climate change is already a fact cause or exacerbate damage to natural and human systems. Indeed, just a few weeks before the decision of the UN General Assembly, a rare double cyclone event ripped through Vanuatu.
Faced with these threats, Pacific countries such as Tuvalu and Palau have previously publicly discussed options for getting a ruling from the ICJ. These efforts were met with fierce resistance from the major emitting countries, which ultimately saw the proposals shelved.
Renewed efforts began in 2019 with the formation of 27 University of the South Pacific law students Pacific Islands students fight climate change.
The students teamed up with the government of Vanuatu to launch a new campaign for a General Assembly resolution on climate change and human rights. Introducing the resolution, Vanuatu Prime Minister Ismael Kalsakau has said this:
This is not a panacea, but it can make an important contribution to climate action, including by being a catalyst for much higher aspirations under the Paris Agreement.
For student campaigners like Cynthia Houniuhi, it is resources
an opportunity to do something bigger than ourselves, bigger than our fears.
What could the advice of the ICJ bring?
Advice from the ICJ is – as the name suggests – advisory. They are not legally binding on any country or on the General Assembly. This climate advice will therefore not establish the responsibility of certain countries for climate damage, nor provide compensation for vulnerable countries such as Vanuatu.
Nevertheless, the authority of the world court means that its opinions matter in shaping how countries understand their international obligations.
There is an opportunity with this advice to strengthen emerging links between climate damage and human rights, which could open new avenues for litigation at home or abroad. Several new climate rights cases are already underway, with the European Court of Human Rights the hearing of the first two climate cases (against Switzerland and France) on the same day the advisory resolution was adopted.
The ICJ’s advice could also provide additional incentive for countries to review and strengthen their national emission reduction targets to ensure they comply with the Paris Agreement. As the new fund for climate-related loss and damage takes shape at this year’s international climate meeting (COP28 in Dubai), negotiators may be reflecting on how the rules they make could complement the advice of the ICJ.
Australia’s support shows that our government understands the need strengthening cooperation and solidarity in the region. Such efforts – including raising the ambition of Australia’s emissions reduction target and contributing to the emerging loss and damage fund – would be tangible indications that Australia is striving to meet its international obligations. It’s about being a good neighbor while avoiding future lawsuits.
Read more: Australia violated Torres Strait Islanders’ rights by failing to act on climate change, UN says. Here’s what that means
A turning point for climate justice?
For many advocates, the success of the ICJ’s advisory campaign is the beginning of a new era in the quest for climate justice. By asking the world court to give its authoritative voice on this issue, campaigners such as the Pacific Students’ Group are trying to make a difference. They hope to ease the path to holding polluting countries accountable for climate damage and ensuring vulnerable communities get the resources they need to achieve a better climate future.
Other voices insist on a more careful approach. For example, the ICJ does not have much human rights expertise – with the notable exception of the recently appointed Australian judge Hillary Charlesworth. With judges drawn from several major sending states, the court may be reluctant to intervene decisively in such a highly charged political issue. Courts are generally followers, not leaders, of social movements.
Nevertheless, the confluence of dire warnings from climate scientists in the latest Intergovernmental Panel on Climate Change report, increasing climate protests and lawsuits around the worldand the accelerating occurrence of climate damage like last year massive floods in Pakistan may just provide a moment in history – a moment when the world court steps forward to put its thumb on the scales in favor of the cause of climate justice.
