Case Law Database
Request for an Advisory Opinion ICJ Advisory Opinion
| Date of Application: | Wed, 01 Mar 2023 |
|---|---|
| Decision Making Body: | International Court of Justice |
| Law Applied: | International Covenant on Civil and Political Rights International Covenant on Civil and Political Rights (ICCPR) International Covenant on Economic, Social and Cultural Rights |
| Keywords: | Advisory opinion, Duty of states |
Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change UN General Assembly, Report of the International Court of Justice A/77/L.58 (1 March 2023)
The request for an advisory opinion acknowledges that “climate change is an unprecedented challenge of civilizational proportions and that the well-being of present and future generations of humankind depends on our immediate and urgent response to it”. The UNGA resolution also takes note of the scientific consensus expressed, inter alia, in the reports of the Intergovernmental Panel on Climate Change. In particular, the UNGA underscores that anthropogenic emissions of greenhouse gases are “the dominant cause of the global warming observed since the mid-20th century” and that human-induced climate change “has caused widespread adverse impacts and related losses and damages to nature and people.”
In this context, the UNGA recalls the importance of the United Nations Framework Convention on Climate Change and the Paris Agreement “as expressions of the determination to address decisively the threat posed by climate change”. The resolution also underscores the importance of implementing these treaties, particularly in light of the significant gap between States’ current nationally determined contributions and the emission reductions required to hold the increase in the global average temperature to well below 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5°C, as well as the gap between current levels of adaptation and the levels needed to respond to the adverse effects of climate change.
Therefore, in accordance with Article 96 of the Charter of the United Nations, the UNGA requests the ICJ to render an advisory opinion on the following questions:
“Having particular regard to the Charter of the United Nations, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the United Nations Framework Convention on Climate Change, the Paris Agreement, the United Nations Convention on the Law of the Sea, the duty of due diligence, the rights recognized in the Universal Declaration of Human Rights, the principle of prevention of significant harm to the environment and the duty to protect and preserve the marine environment,
(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 gases 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?”
On April 12, 2023, the request for an advisory opinion was transmitted to the Court by the Secretary-General of the United Nations. Presentations of written statements were due on March 22, 2024. The ICJ received 91 written statements.
Written comments were submitted on August 15, 2024. The ICJ received 62 written comments. The public hearings are scheduled for December 2, 2024.
Related CRC articles
- 24. Right to health, healthcare, and a healthy environment (CRC Article 24)
- 27. Right to an adequate standard of living (CRC Article 27)
- 30. Right to minority culture, language, religion (CRC Article 30)
UN General Assembly decision:
"Recalling its resolution 77/165 of 14 December 2022 and all its other resolutions and decisions relating to the protection of the global climate for present and future generations of humankind, and its resolution 76/300 of 28 July 2022 on the human right to a clean, healthy and sustainable environment."
Written submission by Robert F. Kennedy Human Rights and others:
"9. The UN Human Rights Committee (HR Committee) and UN Committee on the Rights of the Child (CRC) have also emphasized how States not addressing climate change violates various human rights. In Daniel Billy and others v. Australia, the HR Council found that Australia’s failure to adequately protect Indigenous Torres Islanders against climate change impacts violated the Indigenous community’s rights to be free from arbitrary interferences with their private life, family, and home and enjoy their culture under articles 17 and 27 of the International Covenant of Civil and Political Rights (ICCPR).14 In Chiara Sacchi, et al. v Argentina, Brazil, France, Germany and Turkey, the CRC found that States can be held responsible for the human rights impacts of their carbon emissions on children both within and outside its territory."
Some countries refer to CRC rights.
Lichtenstein in their oral arguments say: The rights of children to a clean, healthy and sustainable environment are impacted by climate change in ways that can affect their physical and mental health.
https://www.icj-cij.org/sites/default/files/case-related/187/187-20241206-ora-02-00-bi.pdf
The AU, in its answers to questions say: 51. As regards the intrinsic relationship between the right to a clean, healthy, and sustainable environment and other rights (such as the right to life, the right to health, cultural rights, privacy and home rights, various children’s rights, and rights to an adequate standard of living, including the rights to housing, food, and water), it has been emphasized by UN Treaty Bodies 100 as well as by regional human rights courts.101 By way of example, in the case Social and Economic Rights Centre (SERAC) and Centre for Economic and Social Rights (CESR) v. Nigeria, the African Commission on Human and Peoples’ Rights, stressed “the importance of a clean and safe environment that is closely linked to economic and social rights in so far as the environment affects the quality of life and safety of the individual”.
Cited CRC articles
- 43. Procedural CRC provisions (CRC Articles 43-54)
The UN General Assembly decision to request the AO does not contain any citation of sections of the CRC, but does refer to it generally. The written submissions of other stakeholders do make reference to the CRC.
CIEL's MEMORANDUM ON THE RIGHTS OF FUTURE GENERATIONS cites UNCRC General Comment 26.
The African Union makes specifc reference to the UNCRC General Comment 26.
Involvement of children in hearings
- Oral presentation
Several states gave opportunity to youth representatives to make oral statements.
Intergenerational rights
Written submissions by the AU include:
"By formulating such a remedy — debt cancellation — the Court would contribute to intergenerational equity towards the future generations of Africans, in particular children, whose fundamental rights are being constrained by climate change, and the shackles of debt."
Future generations
THE CENTER FOR INTERNATIONAL ENVIRONMENTAL LAW (CIEL) MEMORANDUM ON THE RIGHTS OF FUTURE GENERATIONS
Outcome of decision for the applicants
- Decision pending
Did outcome of decision develop the law
- Not sure
Decision pending
Involvement of NGO/law firm in application
Various NGOs were key to the advocacy leading uip to the UN decision to request the advisory opinion.
Some NGOs were allowed to make submissions to the court.
- World's Youth for Climate Justice (WYCJ) played a key role, and made submissions to the court.
- PACIFIC ISLANDS STUDENTS FIGHTING CLIMATE CHANGE (The Pacific)
- World’s Youth for Climate Justice (The Hague/Global)
Available information on how children got involved in the litigation
The Witness stand is a website created by NGOs to allow individuals to record their stories, for the purpose of the court proceedings.
Age range of litigants
- Other (Under 25)