Since the conclusion of this historic Agreement, civil society actors and concerned citizens have increasingly focused on ensuring that commitments enshrined in the Paris Agreement are underpinned by adequate implementation and accountability mechanisms.
One key aspect of attempts to bridge the implementation gap is the growing prominence of the international human rights legal framework in climate litigation. This is illustrated by the Sabin Centre for Climate Change Law’s global database which, at the time of writing, records 122 ongoing climate cases brought on human rights grounds. The key role that human rights litigation can play in the ever-evolving circumstances of the climate crisis lies in its ability to adapt to new challenges (see for example, the evolution of human rights law in response to the digital era). This is also illustrated by the development and use of the “living instrument doctrine” by the European Court of Human Rights whereby the Court interprets the European Convention on Human Rights in the light of present-day conditions. Furthermore, the well-established substantive and procedural rights framework of human rights law is a solid foundation which can be expanded upon to encompass new rights such as the human right to a healthy environment and rights of nature, amongst others.
The Role of Advisory Opinions
While litigation is one way of clarifying the extent of states’ obligations to tackle the climate and biodiversity crises and the relevance of human rights law in this regard (see our previous posts on cases before the European Court of Human Rights and the UN Human Rights Committee), an alternative, non-litigious route is to request advisory opinions from international courts. Indeed, since December 2022, the International Tribunal for the Law of the Sea, the Inter-American Court of Human Rights and the International Court of Justice have all received requests for advisory opinions.
The Request for an Advisory Opinion by the International Tribunal for the Law of the Sea
On 12 December 2022, the Commission of Small Island States on Climate Change and International Law (“the Commission”) submitted a request for an Advisory Opinion to the International Tribunal for the Law of the Sea (“ITLOS”) on the obligations of state parties to the United Nations Convention on the Law of the Sea (“UNCLOS”) regarding climate change and pollution of the marine environment. The Commission is made up of Antigua and Barbuda, Niue, Palau, Saint Vincent, Tuvalu, and Vanuatu, all of which are extremely vulnerable to the impacts of the climate crisis and to rising sea levels in particular.
ITLOS is an independent judicial body established by the 1982 UNCLOS. Article 138 of the Rules of the Tribunal empowers ITLOS to receive requests for advisory opinions from authorised bodies i.e., intergovernmental organisations, “on a legal question if an international agreement related to the purposes of the Convention specifically provides for the submission to the Tribunal of a request for such an opinion.”
The specific question addressed to ITLOS by the Commission for an advisory opinion is:
“What are the specific obligations of State Parties to the United Nations Convention on the Law of the Sea (the "UNCLOS"), including under Part XJI:
a) to prevent, reduce and control pollution of the marine environment in relation to the deleterious effects that result or are likely to result from climate change, including through ocean warming and sea level rise, and ocean acidification, which are caused by anthropogenic greenhouse gas emissions into the atmosphere?
(b) to protect and preserve the marine environment in relation to climate change impacts, including ocean warming and sea level rise, and ocean acidification?”
The only advisory opinion previously delivered by ITLOS as a full court came at the request of the Sub-Regional Fisheries Commission (“SRFC”) in 2015 and provides an indication as to how ITLOS might tackle the Commission’s request.
The SRFC request and subsequent advisory opinion concerned the obligations of states regarding illegal, unreported and unregulated fishing activities and the sustainable management of shared stocks and stocks of common interest. In its advisory opinion at , ITLOS stated that alongside interpreting the relevant provisions of UNCLOS, it would “identify other relevant rules of international law.” This accords with Article 293 of UNCLOS which states that, “A court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention.”
For the purposes of the Commission’s request for an advisory opinion, Article 293 and its application in SRFC demonstrate UNCLOS’ status as a “living instrument” to be interpreted in line with established and emerging customary and codified sources of international law. It will therefore be interesting to see whether ITLOS cites the Paris Agreement, the recent UN General Assembly resolution on the right to a clean, healthy and sustainable environment and other relevant provisions of international law in its advisory opinion on the obligations of state parties regarding climate change and pollution of the marine environment.
The Request for an Advisory Opinion by the International Court of Justice
In a parallel attempt to clarify states’ obligations under UNCLOS, following a year-long campaign to build support within the United Nations General Assembly (“UNGA”), Vanuatu and 105 co-sponsor states requested an advisory opinion from the International Court of Justice (“ICJ”) on the obligations of states with respect to climate change.
On 29 March 2023, UNGA adopted a resolution by consensus referring the request to the ICJ. Although the ICJ’s advisory opinions are not binding, as the ICJ is the main judicial organ of the UN, they “carry great legal weight and moral authority” and “contribute to the clarification and development of international law …”
In the resolution, the General Assembly requested that the ICJ answer the following questions:
“(a) What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gasses (GHG) for States and for present and future generations?
(b) What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:
(i) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?
(ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?”
The wider scope of this request for an advisory opinion in comparison to the ITLOS request (which is limited to interpreting compliance with UNCLOS and compatible international law) represents a valuable opportunity to clarify the wider international and human rights obligations of states with respect to the climate crisis.
In this regard, some of the international instruments referenced in the request include the Paris Agreement, the United Nations Framework Convention on Climate Change (“UNFCCC”), UNCLOS, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The ICJ may also rely on the recent UNGA resolution on the right to a clean, healthy and sustainable environment, IPCC and other reports indicating scientific consensus on the impacts of the climate crisis and the growing body of domestic case law in this field.
The added value for Vanuatu and other small, vulnerable island states of approaching both ITLOS and the ICJ is the greater ability of the ICJ to provide an authoritative opinion on the human rights implications of the climate crisis. An advisory opinion from the ICJ presents a key opportunity to synthesise and advance years of efforts to clarify the ways in which the climate crisis impacts on human rights and the specific obligations of states.
Another interesting aspect of the request that reflects one of the most contentious issues at the last COP meetings is the reference to “equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances” in the implementation of UNFCCC and the Paris Agreement. This indicates the potential for the ICJ to not only assess states’ responsibilities in a domestic context but also their obligations towards other more vulnerable states.
The Request for an Advisory Opinion by the Inter-American Court of Human Rights
On 09 January 2023, Chile and Columbia jointly requested an advisory opinion from the Inter-American Court of Human Rights (“IACtHR”) to clarify the scope of substantive and procedural state obligations for responding to the climate crisis in the framework of international human rights law. See here for the non-official English translation of the request.
The request acknowledged the human rights implications of the climate crisis, highlighted the particular vulnerability of communities and ecosystems in Latin America and requested clarification about the scope of the preventative duty on states in the light of the Paris Agreement and the scientific consensus not to surpass a 1.5 degree increase in global temperature. Furthermore, Chile and Colombia raised specific questions about adaptation, mitigation, loss and damage, the differentiated obligations of states and protecting environmental rights defenders, especially women and indigenous people.
By referencing Vanuatu and others’ request for an advisory opinion from the ICJ, climate cases before the European Court of Human Rights and the decision of the UN Human Rights Committee in the case of the Torres Island community, Chile and Colombia situate this request amongst global efforts to clarify the extent of states’ legal obligations on the climate crisis and human rights.
Indeed, the potential of the IACtHR to set down not just regional but global parameters is evidenced by the important role played by a previous advisory opinion in paving the way for the 2022 UN resolution on the right to a clean, healthy and sustainable environment. In 2017, five years before the UNGA resolution, the IACtHR already issued an advisory opinion concluding that the right to a healthy environment is a justiciable human right.
The particular advantage of taking the advisory opinion as opposed to the litigation route is its unifying potential to build on existing norms and establish new international legal parameters for the rapidly evolving circumstances of the climate and biodiversity crises. Greater clarity on the role of human rights law in litigating the climate crisis will be particularly welcome given its increasing prominence in climate litigation despite the fact that human rights law was not originally conceived with the climate and biodiversity crises in mind. These three requests therefore represent a significant moment for international climate governance and human rights litigation.
Claire Nevin is a pupil barrister at Francis Taylor Building.
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