WYCJ Symposium: International Court of Justice Advisory Opinion, Climate Justice & Youth Human Rights

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Introduction

World’s Youth for Climate Justice (WYCJ) is a youth-led organization that is campaigning to seek an Advisory Opinion (AO) from the International Court of Justice (ICJ), which aims to clarify the principles relevant to, and obligations under international and human rights law concerning climate change. The campaign focuses on the operation of the principle of intergenerational equity to achieve climate justice, as it aims to clarify States’ obligations towards the present and future generations. The roots of the campaign can be traced back to the Pacific, where students from the University of South Pacific established a movement called Pacific Island Students fighting for Climate Change (PISFCC). Later, recognizing the global aspects of the campaign, the youth organized themselves under the umbrella organization of WYCJ.

International environmental governance has come a long way, and the momentum to develop international environmental law (IEL) further is now reaching its peak. Yet, recent high-level international events and reports such as the outcomes of COP26 or the 2022 IPCC reports reaffirm what has already been known for years- that climate change is the ‘21st century’s largest global threat to the planet and human rights’ and needs to be dealt with efficiently. Furthermore, the inequalities and differences in one’s situations when facing climate change impacts have also been reaffirmed, illustrating how climate impacts people in different ways and intensities. Indeed, the scope and degree of those threats vary according to the people impacted. For instance, ‘small island developing states (SIDS), children (under 18 years old), adolescents (aged 10–19), and youth (aged 15–24) are among those most heavily affected’. In light of this, WYCJ’s campaign proceeds on the premise that the authority of the ICJ’s decision will bridge the protection gap left unaddressed (at least explicitly) by the UNFCCC framework and human rights treaties. It could also clarify States’ obligations on climate change adaptation and mitigation as well as towards the protection of youth’s human rights in the application of the intergenerational equity principle.

Following this introduction, this blog post will analyze the general roots of the campaign as well as the area of law on which the campaign grounds its actions. Additionally, as this blog series progresses, issues of jurisdiction and practical hurdles will be discussed.

Advisory opinion, climate change law and human rights

Firstly, the roots of the campaign proceed in the attempt to lay a strong foundation – by clarifying States’ obligations towards climate change and youth’s human rights – for developing further the principle of intergenerational equity and protecting the rights of future generations under international law. To do so, the question WYCJ suggests being submitted to the ICJ is, ‘What are the obligations of states under international law to protect the rights of present and future generations against the adverse effects of climate change?’. This question, thus, asks the Court to consider substantive issues of international environmental (specifically climate change law), and international human rights law which are two areas of law that seemingly operate in a fragmented manner.

Secondly, the two main aspects of the law that WYCJ hopes will be clarified are;  first, ‘the language of ‘obligations to protect’ on which the Court could potentially express its opinion on the full range of human rights obligations arising in the environmental context’[…]. And then, the question of existence, scope and content of ‘rights of present and future generations’ (WYCJ Report: Human rights in the face of the climate crisis, §30) which are implicated by the intergenerational impacts of climate change.

Advisory Opinion and the Climate Change Law Framework

As it will be developed in further blog posts, such an AO could constitute the most authoritative decision on climate change and the obligation of States under international/human rights law to mitigate the climate crisis. On that note, Professor Bodansky states that ‘an ICJ advisory opinion could bring legal clarity to and progress in international diplomatic endeavours,[…]’, and WYCJ’s campaign, by aiming to reduce the gap between the UNFCCC and human rights treaties through an ICJ AO, proceeds in support of this argument (WYCJ Report, p.39). Moreover, it is also said that such an AO could set the new terms of the debate, provide evaluative standards and establish a framework of principles that would, ultimately, ‘define normative expectations for a broad variety of actors as on its direct influence on States.’ Furthermore, since the aim is to clarify the law, an advisory opinion could be seen as preferable since less controversial, and more likely achievable than a ‘contentious case, for example concerning state responsibility for harms associated with the impacts of climate change’. Also, as developed in the last blog of this series, such an AO holds strong moral authority, which helps interpret established laws that may be relied on in subsequent cases. In the case of Climate Change Law, such an AO would be the first AO dealing with climate change, setting thus a new tone for the mitigation of the climate crisis.

Advisory Opinion and human rights

There are two primary ways in which climate change has been recognised as affecting human rights. Firstly, in jurisdictions where an autonomous right to a healthy environment is not recognized, courts have noted the impacts of climate change on the enjoyment of other rights such as the right to life or, the right to private property (Kyrtatos v Greece [2003] ECHR). Secondly, climate change has been recognised as a direct and unequivocal threat to the right to a healthy environment, where such a concept is recognized (Advisory Opinion OC-23/17, November 15, 2017). In a broader context, it has been acknowledged countless times that climate change’s ‘negative impacts on the Earth’s ecosystem have acknowledged consequences for the enjoyment of human rights’(WYCJ Report, p.17). Therefore, it seems relevant for rights holders to utilize human rights to seek a clear and strong interpretation of climate change law, through climate litigation. In the case of such an AO, clarifying States’ obligations using a human rights-based approach, would reduce the gap between the Climate Change Law regime and human rights treaties enabling, thus, the implementation of such an approach at the highest level of governance.

Climate justice and youth, a need for action?

With the development of the youth’s mobilisation across the world, climate justice movements and other initiatives are living proof of the rising concerns regarding their future and human rights. Moreover, the presence, integration, protection and representation of youth within international law and high level of governance remain extremely restricted, especially in the institutional and policy-making process. Owing to this lack of representation and their inability to meaningfully participate and influence the political process, it is understandable that their preferred way of action constitutes challenging the current legal and political framework before courts, including, among others, human rights grounds. WYCJ intends to pursue this approach so that the ICJ may also weigh in on the constant stream of legal questions in the wake of the climate crisis. The campaign hopes that its focus on a human rights-based approach will help States and international organizations address the gap between the UNFCCC framework and the system created by regional and international human rights treaties. WYCJ also hopes to clarify States’ obligations concerning climate change adaptation and mitigation as well as towards the protection of youth’s human rights in the application of the intergenerational equity principle. WYCJ, thus, believes in the power of the youth-led campaign, and impacted communities to bring this issue forward and move closer to achieving climate justice.

Needless to say, a youth organization cannot directly petition the ICJ to exercise its advisory jurisdiction and answer the legal question on climate change-related obligations (Statute of the International Court of Justice, chapter IV, article 65). Given the proposed legal question and Vanuatu’s government announcement, in September 2021, to route this initiative through the United Nations General Assembly, it is in the UNGA’s competence to submit the said question to the ICJ for an advisory opinion. It is, then, the Member State’s responsibility to uphold the interest of the youth, as it is their obligation to assure the protection of their population and their human rights. It is then even more important for the States to understand the gravitas of this responsibility in supporting the youth and moving WYCJ’s campaign further, toward the International Court of Justice.

Our campaign and the several youth-led movements across the world serve to demonstrate that in the eyes of the youth, climate change is nothing short of a humanitarian crisis. This blog post has highlighted why an ICJ AO is normatively desirable, would serve to substantiate our cause and spur international action to address this crisis. Consequently, the next blog will develop the jurisdictional and procedural legal hurdles in the way of a potential climate change and human rights ICJ AO.

Manon Rouby is a French environmental lawyer based in the UK. With WYCJ, she is the Academic Coordinator and part of the Steering Committee. Manon and WYCJ would like to thank Pranav Ganesan for his editorial contributions. Pranav is a PhD candidate at the University of Zurich. His research relates to international environmental law and human rights.

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