WYCJ Symposium: Lessons from ICJ Decisions and Advisory Opinions

The Editors of the Cambridge International Law Journal Blog endorses this statement by the Fellows of the Lauterpacht Centre for International Law condemning the aggression perpetrated by the Russian Federation against Ukraine. The events of the past month have sharply called our focus back to the acts of aggression taking place around the world. We condemn all abuses of international and humanitarian law and request that readers and contributors join the call by the Department of International and European Law at the National University of Kyiv Mohyla Academy for the international academic community “to raise their voices about the evils of war”. Please consider supporting the British Red Cross Ukraine Appeal and the UNHCR. Finally, the Ukrainian Institute, in London, has listed additional suggestions for people wishing to support Ukraine and Ukrainians.

Introduction

It is well-established that the International Court of Justice (ICJ) plays a fundamental role in the progressive development of international law. As developed earlier in this blog series and provided under Article 65 of the ICJ Statute, one of the Court’s  roles is  providing advisory opinions on legal questions brought  by authorised international organs and agencies. In the case of WYCJ’s campaign, the government of Vanuatu recently announced its intention to pursue this initiative through the route of the United Nations General Assembly, in accordance with article 96 of the Charter of the United Nations.

Two cases brought before the ICJ and Palau’s and Marshall Islands’ attempt to seek an AO are analysed in this blog to demonstrate the importance of an Advisory Opinion (AO) on States’ international obligations for the protection of the rights of present and future generations against the adverse effects of climate change. First, the 1996, Legality of the threat or use of nuclear weapons AO, in which the Court displays its views on the nature of the environment and States’ ‘obligations to prevent transboundary harm as part of International Environmental Law (IEL)’. Second, the 2014 Whaling in the Antarctic case illustrates, although contentious, discusses the importance of interpreting scientific knowledge when dealing with environmental issues. And finally, Palau’s initiative to seek an AO before the ICJ on damages caused to States by greenhouse gases emitted by other States. While WYCJ’s campaign is inspired by Palau’s initiative, it also draws from the other two cases discussed below.

Legality of the Threat or Use of Nuclear Weapons

The Legality of Threat or Use of Nuclear Weapons AO is often seen as the key reference of an ICJ AO when it comes to environmental cases. Indeed, in this case not only does the court analyse the relevance of environmental treaties in the use of nuclear weapons, the court also describes, in detail, its views of the environment and the legal obligations that emerges from it. More precisely, the year 1996 revolved around an advisory opinion regarding the legality of the threat or use of nuclear weapons. In this case, the court explained its view of the environment as ‘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). This was one of the biggest, early mentions of the concept of intergenerational equity and created a shockwave that can still be felt today. The court also states that the obligation of States to ‘prevent or mitigate transboundary harm was now an integral part of international environmental law’ (J. Vinuales p.245). The court also stated that States were responsible and obligated to take environmental factors into account before making decisions or taking action. This involved taking necessary and proportionate measures with respect to military objectives. This understanding of taking environmental aspects into account essentially defines the Environmental Impact Assessment (EIA), an approach used to evaluate the potential environmental impacts a certain project could pose. The campaign is standing on the shoulders of decades of strong anti-nuclear activism by a multitude of civil society groups and indigenous people.

This resulted in the establishment of the ‘World Court Project’ (WCP), a group that stood up to lead the campaign and request an ICJ advisory opinion. Built upon several decades of strong anti-nuclear activism from indigenous people and civil society groups, the campaign was supported by the International Peace Bureau, the International Physicians for the Prevention of Nuclear Weapons, and the International Association of Lawyers against Nuclear Arms. The WCP even convinced the World Health Organisation (WHO) to request for the advisory opinion in 1996. However, the ICJ stated that making such a request is not within the scope of the WHO and its activities. Regardless, the WHO helped pave the way for support at the UNGA, and after a decade of campaigning, the ICJ finally delivered the advisory opinion, the effects of which are still being felt today. This case, thus, created a platform for future cases involving explicit environmental issues. Through raising awareness, the ICJ AO can prompt state and non-state actors to take action. By building momentum around the proceedings at the ICJ, this campaign could significantly help in changing behaviours and attitudes with respect to climate change.

Whaling in the Antarctic Case

The 2014 case of Whaling in the Antarctic is relevant as it has defined ‘scientific research’ while interpreting treaties. The case tried to examine aspects of the Court’s practice concerning the use of experts. It discussed the problems encountered by the Court when it needs to address legal disputes involving complex scientific questions. Here, the key question was whether or not Japan’s use of lethal means in its whaling programmes were justifiable under Article VIII(1) of the 1946 International Convention for the Regulation of Whaling. Just one day after the ICJ shared its opinion on the concept of ‘scientific whaling’ and called it unlawful, a Japanese company already stopped its retail sale of whale meat. This case also proved that the ICJ judges do examine scientific claims. In analysing Japan’s actions, they established a legal meaning to the words ‘science’ and ‘research’, both of which were initially used by Japan in its contention.

Palau’s Attempt to Seek an ICJ AO

In 2011, a campaign initiated by the island States of Palau and the Marshall Islands revolved around aiming to secure an advisory opinion from the ICJ with respect to transboundary harm and climate change. The advisory opinion sought to clarify the responsibilities of States regarding greenhouse gas emissions as well as ensure that their activities do not harm other States. While Palau’s and the Marshall Islands’ efforts did not have enough momentum to reach the formal negotiations stage at the United Nations General Assembly (UNGA), their initiative has inspired youth activists and academics to explore the ICJ advisory opinion avenue for more action in the fight against climate change.

For Palau to take such a large step in the direction of fighting climate change was  inspiring. Palau’s request for an advisory opinion helped in developing and increasing the efficacy of litigation for Small Island Developing States (SIDS). In this context, SIDS contribute the least towards climate change with respect to emissions. However, the understanding that it is not fair for them to experience climate change’s worst impacts is becoming increasingly more predominant and prevalent. Palau took this great step with the hopes of closing down the metaphorical gap between international legal responsibilities and state action.

Although the process of seeking an AO before the ICJ is complex, uncertain, dependent on political will and bureaucracy, the reason that explains Palau’s failure to successfully reach the ICJ does not only resolve political hurdles. Palau’s campaign based its request around the question ‘what are the obligations, under international law, of a State for ensuring that activities under its jurisdiction or control that emit greenhouse gases do not cause, or substantially contribute to, serious damage to another State or States?’. The consequence of such a question is that it leaves in room in the interpretation of issue of causation and how it has to be legally established. Consequently, the Court is afforded room to address these legal issues on its own interpretation, which, in Palau’s case, ended in an unsuccessful resolution at the UNGA. Learning from Palau’s case, it is therefore critical to ask the right question, as highlighted in the second blog post.

Conclusion

As mentioned above, the impacts of the AO on nuclear weapons can still be felt today. The reason for this is the driving force of civil society organisations and indigenous people after a decade of strong anti-nuclear activism. This is a testament to how important it is for WYCJ to raise awareness and highlight the urgent need to address the climate crisis and its impacts on human rights. The contentious case of Whaling in the Antarctic between Australia and Japan is also a good example to show how the ICJ looked at science and research and developed legal definitions for both. This case also demonstrated how the ICJ uses its many powers.

A youth organisation such as WYCJ cannot directly ask the ICJ to exercise its advisory jurisdiction and answer the legal question on climate change and intergenerational equity. It is up to WYCJ to garner support and raise awareness in most States to make sure that each government hears about the campaign and develops an understanding of the link between climate change and human rights. We have examined one AO, one contentious case and Palau’s attempt to seek an AO from the International Court of Justice. The next step is to understand the rights-based approach being used in domestic law and other jurisdictions before national courts. Therefore, the next blog post will revolve around the study of domestic and international climate litigation and its potential value for WYCJ’s campaign.

Himmat Bakshi is a student currently pursuing a Bachelor’s degree in Environmental Studies at O.P. Jindal Global University. He is the member engagement coordinator and contributor for the academic task force at WYCJ. Himmat and WYCJ would like to thank Manon and Aditi for their editorial contributions. Manon Rouby is a French environmental lawyer based in the UK. With WYCJ, she is the Academic Coordinator and part of the Steering Committee. Aditi Shetye is an environmental lawyer based in the UK. She graduated with an LL.M in Global Environmental Law and Governance from the University of Strathclyde, Glasgow. She has practised as a lawyer in India and works as the Academic Coordinator for WYCJ. 

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