A resolution adopted this week at the United Nations General Assembly in New York is being hailed as a victory for climate justice. The resolution means that the UN General Assembly will seek the opinion of the International Court of Justice (ICJ) on countries’ obligations to address climate change.
The resolution was spearheaded by the Pacific nation of Vanuatu, a country bearing the brunt of the climate crisis. Co-sponsored by more than 130 countries, the resolution states that the UN General Assembly will also seek the ICJ’s opinion on the legal consequences for states that, “by their acts and omissions”, damage the climate in such a way that it affects others, particularly small island nations who are among the most vulnerable to the effects of climate change.
“This is not a silver bullet, but it can make an important contribution to climate change, climate action, including by catalyzing much higher ambition under the Paris Agreement,” said the Prime Minister of Vanuatu, Alatoi Ishmael Kalsakau.
Established in 1945, the ICJ is the highest UN judicial body and was set up to deal with disputes between nation states.
We speak to Andy Raine, Head of the Frontiers in Environmental Law Unit at the Law Division of the United Nations Environment Programme (UNEP) about what this resolution means.
Why is this resolution important?
Andy Raine (AR): This is a very significant development for climate justice for present and future generations. It is the first time that the world’s highest court has been asked clarify the obligations on states to protect the climate system, and the legal consequences of failing to meet them. The scope of the resolution also invites the court to look beyond the Paris Agreement. It explicitly references key human rights instruments that the court should have regard to. A safe climate is considered by many to be a vital element of the right to a healthy environment and is essential to human life and well-being. It also puts the spotlight on the legal consequences for causing significant harm to both vulnerable small island developing states, such as Vanuatu, as well as future generations, opening the door to greater accountability owed to these groups. It also highlights the power of civil society; this resolution was the result of pressure from law students from the Pacific Islands. It shows what is possible when those most affected by climate change stand up to protect their rights, and those of future generations.
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What will happen now?
AR: The ICJ will now work to assemble and consider relevant documentation, likely hold one or more public hearings and issue its advisory opinion on the question the UN General Assembly has asked it. We don’t know exactly when this will be finalized, but it is likely to be issued within the next 12 months. As part of the process, the UN Secretary-General is compiling a dossier of relevant documents to submit to the court. UNEP is working with our colleagues in New York to put this together.
Are we likely to see countries taken to court over their failure to tackle the climate crisis?
AR: While the ICJ’s rulings are not legally binding on countries, they do carry a lot of weight and moral authority. As such, the ICJ’s legal view is likely to add fresh and significant momentum to pushing countries to cut emissions faster and strengthen their climate-related plans and actions, including under the Paris Agreement. ICJ advisory opinions may also be cited in cases in domestic courts and will help those who bring countries or companies to court over their climate-related acts or omissions. Ultimately, a strong ICJ opinion will shape the discourse around climate action and accountability.
What role should the law play in tackling the climate crisis?
AR: The law gives life to climate commitments and our human rights. For example, the right to a clean, healthy and sustainable environment is now legally recognized in 156 countries around the world. Last year, the UN General Assembly also formally recognized this right for the first time at the international level. As a consequence, we are now seeing more and more landmark judgements around the world on climate change and the environment. At UNEP, we support countries in developing and implementing environmental rule of law, to help them achieve the environmental dimension of the Sustainable Development Goals and other internationally agreed commitments.
Why is climate justice important?
AR: Climate justice can have different meanings to different people. That said, it is a concept generally understood to be underpinned by principles of equity, non-discrimination, equal participation, transparency, fairness, accountability and access to justice. This includes issues of equity and equality within a nation, between nations and between generations. These principles are foundational building blocks for achieving a just transition out of the climate crisis.
One of the key principles of the Paris Agreement is the idea of “common but differentiated responsibilities,” which means that while there's a duty on all countries to take climate action, the types of action they take will depend on their differing national circumstances. This also highlights the fact that countries are affected differently by climate change. Vanuatu for example faces an existential threat from rising sea levels, despite its carbon footprint being comparatively very low. Climate justice is also intertwined with climate finance. Essentially countries such as Vanuatu need funding to be able to build things like flood defences and transition away from fossil fuels to more sustainable pathways.
