UN: General Assembly requests advisory opinion from International Court of Justice on states’ obligations to address climate change

On 29 March 2023, the United Nations (UN) General Assembly adopted a resolution, by consensus, to request an advisory opinion from the International Court of Justice (ICJ) on the legal obligations of states in respect of climate change. The draft resolution was tabled by small island developing state, the Republic of Vanuatu, and co-sponsored by 132 states. It requests the 15 judges of the ICJ – the UN’s principal judicial organ – to consider three questions related to the obligations of states under international law to ensure the protection of the climate system and other parts of the environment. The seat of the ICJ is at the Peace Palace in The Hague, Netherlands.

In accordance with the UN Charter, the Statute of the Court, and its Rules, the ICJ may consider two types of cases: legal disputes between states, referred to as contentious cases, and requests for advisory opinions on legal questions submitted by one of the five UN organs or 16 specialised agencies, referred to as advisory proceedings. In the event that the ICJ decides that it has jurisdiction to render an advisory opinion, and it exercises its discretion to consider the request, the ICJ will gather all relevant facts, evidence, and legal considerations through written and oral proceedings. Submissions are typically based on a list of the states and international organisations that the ICJ believes are likely to be able to furnish information on the question/s before it. As set out in the resolution, the questions in this instance are:

• 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?
• 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:

1. 1. 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?
   2. Peoples and individuals of the present and future generations affected by the adverse effects of climate change?

Following these proceedings and its deliberations, the ICJ will deliver the advisory opinion at a public sitting. Unlike the ICJ’s judgments in a contentious matter, advisory opinions are not binding; however the ICJ’s findings and conclusions still carry a degree of authority and may offer persuasive value for regional and national courts, among other forums.

Acknowledged as a landmark General Assembly resolution, directly placing the legal consequences of climate change before the ICJ for the first time, it follows the publication of a summary report by the Intergovernmental Panel on Climate Change (IPCC) on 20 March 2023. The IPCC, a body of climate scientists from around the world, was established by the United Nations Environmental Programme and the World Meteorological Organization in 1988 to provide periodic scientific assessments about climate change. The latest Synthesis Report of the IPCC’s Sixth Assessment cycle summarises the state of knowledge on climate change, its widespread impacts and risks, and sets out mitigation and adaptation measures. The headline statements include that human activities, principally through greenhouse gas emissions, have unequivocally caused global warming (a statement made with high confidence), human-caused climate change is already affecting many weather and climate extremes in every region across the globe (high confidence), and there is a rapidly closing window of opportunity this decade to secure a liveable and sustainable future for all (very high confidence), through climate-resilient development, increased international cooperation, and improved access to financial resources.

• The adopted resolution text of the UNGA is available here.
• The UN press statement on the adoption of the resolution is available here.

This advisory note was prepared by ALT Advisory’s new Climate Justice & Sustainability Practice (CJS). With an emphasis on implementation, monitoring, and impact reporting, CJS aims to build climate-resilience through digital transformation and climate and environmental justice. Find out more here.

Please note: The information contained in this note is for general guidance on matters of interest, and does not constitute legal advice. For any enquiries, please contact us at [email protected].