WYCJ Symposium: Questions of Admissibility & Jurisdiction for an Advisory Opinion under International Law for the Protection of the Rights of Present and Future Generations against Adverse Effects of Climate Change

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Introduction

Having established the strategic importance of an ICJ Advisory Opinion for the protection of the rights of present and future generations against the adverse effects of climate change as a tool for stronger climate action, we now turn to the practical requirements to file such a request. When analysing the legal possibilities for requesting an Advisory Opinion in the terms laid out by WYCJ’s campaign, several questions of admissibility and jurisdiction arise. This blog entry aims to determine: (1) whether such a request meets the admissibility criteria set by the United Nations (UN) Charter and the ICJ’s jurisprudence, and (2) will explore the Court’s jurisdiction ratione materiae over human rights obligations, as well as its (3) ability to rely on scientific evidence for determining facts.

The ICJ’s advisory jurisdiction

The advisory jurisdiction of the ICJ stems from articles 96 of the UN Charter and 65 of its Statute. Accordingly, several criteria must be satisfied for the Court to decide on the admissibility of an advisory request. These are: (i) the request must be made by an authorized organ of the UN; (ii) the request falls within the scope of such organ’s activities (in the case of organs different from the UNGA and the Security Council), and (iii) the question asked must be a legal question.

Firstly, several organs of the UN are authorized by the Charter to submit advisory opinion requests before the ICJ. Of these organs, the Security Council and the UN General Assembly hold a blanket ability to submit a request on ‘any legal question’, in opposition to other UN organs which may only do so if the request falls within their scope of activities (Legality of the Use by a State of Nuclear Weapons in Armed Conflict, § 72). The UN General Assembly could submit a request for an advisory opinion with relative ease in comparison to other UN organs. It would, for instance, not face the barrier of a veto, which makes it challenging for the Security Council to submit a request before the ICJ (in contrast, the General Assembly would only require a majority vote supporting the request). Indeed, in its history the Council has only requested one advisory opinion before the ICJ, while the General Assembly has submitted 16 requests for an advisory opinion.

It must be stressed that such a request would be in line with the practice of the General Assembly, which has called for the protection of the global climate for present and future generations and has highlighted the  ‘need to build on the existing political momentum, with a view to achieving the ultimate objective of the [United Nations Framework Convention on Climate Change]’ (General Assembly Resolution A/RES/68/212).

With regards to the third admissibility criteria, the Court has noted that questions which are framed in legal terms and raise problems of international law are ‘by their very nature susceptible of a reply based on law’ and ‘appear to be questions of legal character’ (Western Sahara, § 10) Additionally, the fact that a question has political aspects does not deprive it of its legal character (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, §155). Indeed, the Court has established that ‘the political nature of the motives which may be said to have inspired the request and the political implications that the opinion given might have are of no relevance in the establishment of its jurisdiction to give such an opinion’ (Legality of the Use by a State of Nuclear Weapons in Armed Conflict, § 12).  The question as it is suggested by the WYJC would be considered a ‘legal question’ in light of the ICJ’s jurisprudence. In addition, it must be stressed that the ICJ has never rejected a request based on its discretionary power to do so under article 65.1 of its Statute; according to the Court it could only do so under “compelling reasons” (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, § 24).

Jurisdiction ratione materiae to address human rights obligations

In answering a request for an advisory opinion on the human rights of present and future generations in the context of climate change, international human rights law cannot be overlooked.  The ICJ is the authoritative judicial body on all matters which fall under international law, which includes international human rights law. Although the ICJ has traditionally steered away from directly addressing human rights issues, the Court might find it appropriate to delve into this body of law, especially  in the exercise of its advisory jurisdiction.

In the Legality of the Threat of Use of Nuclear Weapons, the Court recognized that ‘the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn’ (Legality of the Threat or Use of Nuclear Weapons, § 29). Furthermore, in the Wall, the ICJ directly interpreted both the International Covenant on Economic, Social, and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), and the Convention on the Rights of the Child, and took into consideration the interpretations of the CESCR and Human Rights Committee (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, §108 to 111 & 112 to 113).

The interpretation of relevant climate change obligations related to the protection of human rights will necessarily demand an interpretation of the ICESCR and ICCPR. In this respect, the ICJ has recognized that even though it is not obliged to model its own interpretation to that of the Human Rights Committee when interpreting the ICCPR, ‘it should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty’ in order ‘to achieve the necessary clarity and the essential consistency of international law, as well as legal security, to which both the individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled’ (Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of Congo [Merits], § 664).

The advisory opinion presents an opportunity for the Court to provide harmonization to the different bodies of international law that govern climate change and provide legal clarity to all actors involved in fighting the climate crisis. Accordingly, in interpreting the relevant human rights treaties in the light of the climate emergency, the Court should take into account rulings and General Comments of their chief interpretative bodies (such as the  Human Rights Committee’s, and the Committee on the Rights of the Child’s decisions on the climate change-human rights nexus).

The ICJ and scientific fact-finding

Strong criticism has been made of the Court’s reluctance to rely on independent scientific criteria when assessing the weight of science-based evidence. In light of this, Mbenge argues that international tribunals must ‘acknowledge the evolutionary character of their inherent fact-finding powers in light of scientific complexity and uncertainty’ (Scientific Fact-Finding by International Courts and Tribunals, § 524).

Article 50 of the ICJ Statute provides that the Court may ‘entrust any individual, body, bureau, commission, or other organization that it may select, with the task of carrying out an enquiry or giving an expert opinion’. In the context of climate change, opinions of the Intergovernmental Panel on Climate Change could be instrumental in assessing the severity of the adverse effects of climate change and the impact of this phenomenon on the enjoyment of human rights. Such an approach would enable a ‘major contribution to global commons governance, which is, in many fields, deadlocked by the politicization and vagaries about science’(The ICJ Whaling Case: Missed Opportunity to Advance the Rule of Law in Resolving ScienceRelated Disputes in Global Commons?, § 195).

Conclusion

The International Court of Justice plays a fundamental role in the progressive development of international law. If the UN General Assembly were to request an advisory opinion in the terms proposed by the WYCJ Campaign, all the admissibility criteria laid out by the Court’s jurisprudence would  be met. Additionally, in its advisory jurisdiction the Court has exemplified its jurisdiction ratione materiae over international human rights obligations, which gives reasons to be hopeful if such a request is presented. By answering the request for an advisory opinion on the protection of the rights of present and future generations, the ICJ will be presented with a twofold opportunity to provide harmonization of the fragmented legal order of climate change and human rights,and to build its reasoning on facts supported by the most advanced science on climate change.

After analyzing the admissibility requirements and highlighted several jurisdictional complexities of a potential advisory opinion by the ICJ, our next entry will explore the content and main findings in the ICJ’s advisory jurisprudence, in order to identify key lessons for achieving WYCJ’s campaign goal.

José Daniel Rodriguez is a young Costa Rican lawyer and has been working as a Legal Assistant to the Merits Division of the Inter-American Court of Human Rights since 2017. 

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