International courts and climate change – an advisory opinion of ICJ | 1st March 2023 | UPSC Daily Editorial Analysis

What's the article about?

• It talks about the advisory jurisdiction of the ICJ on the issue of global climate change law and consensus.

Relevance:

• GS3: Environment- climate change;
• Essay;
• Prelims

Context:

• The past year has seen a rise in wildfires, heat waves, extreme precipitation, and flooding in many parts of the world.
• Scientists widely agree that climate change has made extreme weather events more frequent and intense.
• After a brief downturn due to the pandemic, global greenhouse gas emissions have continued their upward rise. These physical conditions are adding to the global alarm over climate change.
• Small Island Developing (SID) states such as Vanuatu are most vulnerable to rising temperatures and sea levels.
• Accordingly, in September 2021, Vanuatu launched an initiative, through the UN General Assembly (UNGA), to seek an advisory opinion from the International Court of Justice (ICJ) to “clarify the legal obligations of all countries to prevent and redress the adverse effects of climate change”.
• The ICJ is now preparing to hear this matter and render an advisory verdict.
• Also, the Commission of Small Island States on Climate Change and International Law, comprising countries like Antigua and Barbuda and Tuvalu, has sought the advisory opinion of the Hamburg-based International Tribunal for the Law of the Sea (ITLOS).

What is ICJ?

• ICJ was established in 1945 by the United Nations charter and started working in April 1946.
• It is the principal judicial organ of the United Nations, situated at the Peace Palace in The Hague (Netherlands).
• It settles legal disputes between States and gives advisory opinions in accordance with international law, on legal questions referred to it by authorized United Nations organs and specialized agencies.
• Unlike other organs of international organizations, the Court is not composed of representatives of governments.
  • Members of the Court are independent judges whose first task, before taking up their duties, is to make a solemn declaration in open court that they will exercise their powers impartially and conscientiously.

What type of jurisdiction does the ICJ have?

• The ICJ has two types of jurisdictions: contentious and advisory.
  • While contentious jurisdiction refers to resolving legal disputes between consenting states, under advisory jurisdiction, the UNGA, the Security Council (SC) and other specialised bodies of the organisation can request the ICJ for an opinion on a legal question.
  • Unlike decisions given under the contentious jurisdiction, the ICJ’s advisory opinions are non-binding. Yet, they carry normative weight and clarify international law on a relevant issue.
• The ICJ’s advisory opinion on climate change will also be handy in climate-related litigation at the national level.

Why did Vanuatu take this initiative?

• The international community has fallen short of delivering concrete solutions to the problem of climate change despite major initiatives such as the UN Framework Convention on Climate Change, the Kyoto Protocol and the Paris Agreement.

What issues will be addressed by the ICJ?

• First, what are the international law obligations of countries toward the protection of the climate system from anthropogenic emissions of greenhouse gases for the present and future generations?
  • Here the ICJ can use the ‘no-harm’ principle (states are under an obligation that activities within their jurisdiction do not damage other countries).
• Second, given these international legal obligations, what are the legal consequences for states that have caused significant harm to the climate system, the SID states and other people of the present and future generations?
  • This question seeks to determine the price that states should pay for not honouring their international legal obligations on climate change.
  • In this regard, the ICJ can predictably elaborate on the legal principles that might help the operationalisation of the ‘loss and damage’ fund.

Way Forward:

• These advisory opinions are not a panacea. They may even turn out to be double-edged swords depending on the kind of verdict delivered.
• Nonetheless, as part of a multi-pronged approach to saving our planet, one should welcome the role of international courts.