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The earlier blogs have established the urgency and justification of advisory opinion (AO) on matters relating to climate change law and human rights law. Following these developments, this blog concludes this series by elucidating the outcomes of such an advisory opinion. It, therefore, aims to summarise the legal rationale of the campaign and international environmental governance while highlighting the impacts of youth advocacy.
Legal effects of this AO
As mentioned in the previous blogs, the procedure of requesting an advisory opinion and its legal analysis has been discussed extensively. In light of WYCJ’s campaign and previous analysis, this blog dwells into the legal outcomes such an opinion would have on (i) international (environmental) law, (ii) legal interpretation of climate change science and, (iii) guidance to regional and domestic courts, (iv) impact on youth advocacy in high level governance.
(i) international (environmental) law and the advisory opinion:
Considering the scope of the advisory jurisdiction and the competency of the UNGA, the advisory jurisdiction of the ICJ can be used to gain answers to an array of legal questions. To illustrate, ‘opinions on the legality of the threat or use of nuclear weapons; on reparations for injuries suffered in the service of the United Nations; on the legal consequences of the construction of a wall in the occupied Palestinian territory; on reservations to the convention on genocide; and the self-determination of the people of Western Sahara.’ Advisory opinions are not legally binding on states and the Court has no enforcement power. Nevertheless, such an opinion holds strong moral authority and thus helps interpret established laws that may be relied on in subsequent cases, and even in legal education. To emphasise, the ICJ has not yet dealt with any climate change case. If the court is moved based on this AO campaign, it would be the most authoritative decision on climate change and the obligation of states under international/human rights law to mitigate the climate crisis.
As seen from Palau’s case (also discussed in blog three) and also to ensure topical clarification (as in this case) from the Court, it is critical to ask the ‘right question’, as asking the wrong question could result in an unhelpful answer from the Court. Despite doing so, it does not guarantee a particular outcome, as the ICJ has the power to interpret the question as it sees fit. Thus, asking the right question has the potential to elaborate on the legality of a human rights-based approach that could mould international environmental law, perhaps, climate change law. If Vanuatu’s initiative succeeds at the UNGA, the question to be asked to the ICJ should be meticulously formulated, especially since it would be for the first time in history that the ‘principal judicial organ of the United Nations’ would provide strong legal precedent on the issue of integration of human rights and international environmental jurisprudence.
To summarise, this indeed signifies not only the importance the opinion would have on developing the international environmental legal regime but also on the youth using this legal tool to fight for rights for their as well as the succeeding generations.
(ii) Legal Interpretation of Climate Science:
There is a paucity of jurisprudence dealing with climate change cases. Despite the wide acceptance of the IPCC assessment reports, its admissibility as evidence in some national courts dealing with climate change cases has been contentious. It is considered to be a tool for policy making rather than expert scientific evidence. While the ICJ understands its limitations, it has not avoided dealing with scientific claims. This has been illustrated in the contentious Whaling in the Antarctic case where the court defined ‘[…] purposes of scientific research’ thus rendering a legal meaning to both ‘science’ and ‘research’. Pursuant to these circumstances, such an advisory opinion offers an opportunity to ‘depoliticize’ the IPCC reports and admit them as technical evidence on climate change. The ICJ, through an advisory opinion, could contribute to the legal understanding of the scientific findings. Besides, cases such as the Pulp Mills case exemplify that the Court would consider concepts drawn from international environmental law. Such an opinion would perhaps provide guidance to national and regional courts while dealing with scientific evidence on climate change. Ergo, depending on the question asked, it may offer an opportunity for the Court to cement consensus on the scientific evidence of climate change. The Advisory Opinion would, therefore, provide an excellent forum to endorse the best scientific findings on anthropogenic climate change, including but not limited to the Special Report of the IPCC on Global Warming of 1.5 °C, thus providing an impetus and guidance for domestic, regional, and international adjudication […].
(iv) Guidance for Regional and Domestic Courts:
As discussed in our third blog, there have been several cases brought before the domestic courts on the grounds of climate change mitigation and adaptation based on human rights law. Considering such trends, most of the litigation is based on corporate as well as State liability to protect the environment. However, the grounds of the cases fall under the ambit of domestic environmental law (see blog 3 in this series) and the implementation of IEL within respective States. Therefore, to establish effective remedies on affected people, the nexus between human rights law, rather, intergenerational equity and climate change law has to be legally recognised and widely accepted by courts. Consequently, such an AO could serve as an authoritative guidance to regional and domestic courts while dealing with such cases. The opinion, by clarifying international legal obligations of states to protect the rights for present and future generations from adverse effects of climate change, could thus set a precedent for regional and national courts to interpret legal obligations when dealing with these issues. This could also provide guidance to new national legislations that may impose stricter liability against private actors polluting the environment.
(v) Impact of youth on high-level governance:
When dealing with climate justice and a human rights-based approach, ‘young people are playing a fundamental role in driving climate change accountability in both formal and informal settings.’ (G. Gasparri et.al. p.100) The leadership of youth in climate litigation has drastically increased in recent years, especially ‘with support from non-governmental organisations (NGOs) and law firms around the world, they have brought climate change cases against federal and state governments in over 15 countries.’ (C.Cameron et.al. p.2) For instance, young plaintiffs, many of them children, have filed lawsuits against governments in Australia, Canada, Colombia, India, Mexico, Pakistan, and South Korea. Some have also filed complaints against Argentina, Brazil, France, Germany, and Turkey through the UN Committee on the Rights of the Child for their failure to reduce carbon emissions and their violation of children’s rights to life, health, and a healthy environment. (K. Guruparan & H. Moynihan, p.2)
It is, therefore, evident that the youth is an active part of the political process when it comes to climate action and challenging both governments and private stakeholders in the name of intergenerational equity and climate justice. Therefore, WYCJ’s campaign seems not only necessary considering the environmental urgency but also endorses the strengthening will of younger generations to claim their right to climate justice. It only makes sense at this stage to involve the highest judicial body to finally take a position on this urgent matter for the future of the planet but also for the present and future generations. The campaign hopes to enhance the recognition of youth in the international sphere as well as hold governments accountable for their actions by the highest international judicial body. WYCJ believes in the power of the youth-led campaign, to bring it to fruition by achieving a satisfying level of climate justice. It is, therefore, the States’ responsibility to assure the protection of their population and their human rights. States shall understand the gravitas of this responsibility in supporting the youth. Because, ultimately, it is the States’ duty to oblige to the principle of intergenerational equity in the public interest.
The way forward and challenges
This campaign began as a youth movement in the pacific and has gained global backing from youth across Asia, Africa, Europe, Latin America and keeps on spreading through the rest of the continents. However, it is necessary to remain realistic given the fact that according to the ICJ Statute a NGO does not have the locus standi to present the case before the Court. The legal question and issues that are to be submitted to the ICJ must be accepted by a majority of States for a resolution to be successful at the UNGA. Ever since the government of Vanuatu announced its intention to seek an advisory opinion in support of the campaign, WYCJ strives to mobilise the youth, like-minded NGOs and CSOs, local governing bodies, in not only the most affected countries but also the less vulnerable countries alike. The campaign strives to bring solidarity and unity among civil society globally. The campaign also endorses the efficacy of multilateralism in addressing a global crisis. It appreciates the courage of other youth leaders that have put the climate crisis on the global political agenda while acknowledging the work of indigenous people, women, and local communities who strive to hold their governments accountable. Finally, the campaign recognizes the responsibility of this ongoing movement and understands the gravitas of the surmountable task it has set to achieve. WYCJ recognises that climate justice is not about geo-political wrangling, it is about law. Standing on the shoulders of our Pacific pioneers, this movement is indeed the first youth movement in history that successfully impacts high-level governance to seek climate justice.
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. Aditi and WYCJ would like to thank Manon for her 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.