By Anxhela (Angela) Mile[*] and Railla Puno[**]
Climate change threatens the health, security, and livelihoods of millions around the world; these threats are greatest for today’s youth and future generations. The 2018 Intergovernmental Panel on Climate Change (“IPCC”) Special Report on Global Warming stated that 1.5°C of global warming would bring severe impacts, including warmer extreme temperatures, increases in the frequency, intensity, and/or amount of heavy precipitation, and increases in the intensity and frequency of drought.[1]
In light of the limited time left to reduce emissions sufficient to avoid even more perilous effects of climate change, concerned youth and other members of civil society are requesting that the International Court of Justice (“ICJ”) issue an Advisory Opinion on the duties of States to present and future generations with respect to climate change under international law. This blog post examines the grassroots movement and explains the procedure and legal significance of obtaining an Advisory Opinion from the ICJ.
The preservation of the environment for future generations has always been at the core of international environmental law.[2] Intergenerational equity anchors the definition of sustainable development, as provided for by the Brundtland Report: “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” It is also codified in numerous treaties. While internationally recognized as a legal principle, the specific obligations of States to future generations can be difficult to discern and implement, so the ICJ’s expertise in this matter is of the utmost importance.
As the judiciary organ of the United Nations (“UN”), the ICJ is authorized to issue an Advisory Opinion on “any legal questions” to bodies that are authorized by the UN Charter.[3] The UN General Assembly (“UNGA”) is one such body expressly identified as having the authority to request an Advisory Opinion from the ICJ through a resolution.[4] A UN member state must first submit a draft resolution. Once submitted, UN members will then vote on the resolution, with each member state having one vote each.[5] The resolution will pass with a majority voting in favor.[6] Once passed, a written request to the UN Secretary-General is needed by the entity authorized to request the opinion.[7] Questions upon which the Advisory Opinion of the Court is asked must contain an exact statement of the question upon which an opinion is required, and be accompanied by all documents likely to throw light upon the question.[8]
Overall, an ICJ Advisory Opinion would hold significant legal weight as it would likely focus on prospective obligations of all States, over and beyond current obligations of States under various treaties that have proven to be inefficient to solve the climate crisis. In the landmark Advisory Opinion of the ICJ relating to the legality of nuclear weapons, the Court delved into customary rules of international humanitarian law and gave guidelines on the conduct of international hostilities.[9] In this case, the ICJ could impose a clear universal roadmap and give guidance on enforcement and implementation to avoid the catastrophic impacts of climate change beyond the 1.5°C goal of the Paris Agreement. An Advisory Opinion also could present an opportunity for the ICJ to clarify the status and extent of emerging environmental law principles, including the right to a safe and healthy environment, sustainable development, transboundary harm, and polluter pays principle as it relates to specific rights and obligations of States. The Advisory Opinion could utilize international human rights law as a mechanism that binds States to ensure a healthy environment for current and future generations.
This grassroots initiative has already seen progress. In 2016, the 1st Tony Oposa Intergenerational Moot Court was held where students from various law schools simulated ICJ deliberations on the legal question. During this time, the International Union for the Conservation of Nature (“IUCN”), the world’s largest and most diverse environmental network composed of both government and civil society organizations, passed a resolution at the 2016 World Conservation Congress. The resolution urged the UNGA to clarify the legal status and content of sustainable development, taking into account the needs of future generations in light of the climate crisis. Since 2016, numerous consultations have been held with allies from governments, academic institutions, and civil society organizations. In September 2019, Tony Oposa, currently the Normandy Chair for Peace and lifelong advocate for the rights of future generations, spurred the campaign forward with students of the Elisabeth Haub School of Law at Pace University, Columbia University Law School, Harvard Law School, and Boston College Law School.
Since then, students have generated widespread support through various channels, including the creation of an online petition,[10] the coordinated sending of letters to Permanent Representatives to the UN, and additional research for legal support. A website[11] and central email have also been created to facilitate coordination and ensure that those interested in the campaign are kept informed. Professor Peter Lawrence from the University of Tasmania, who has worked with the Australian Department of Foreign Affairs and written extensively on representation of future generations, also met with Pace Law students coordinating the movement. Moving forward, students plan to initiate a Side Event at the UN to find dedicated allied State Parties to push the advocacy forward.
In stark contrast to the clear warning by the IPCC of the harms of 1.5°C warming, the preliminary calculation of mitigation efforts under Nationally Determined Contributions under the Paris Agreement puts the world on a pathway towards an increase in global average temperature rise of more than 3°C.[12] Overall, an Advisory Opinion could be utilized as a tool for climate activists all around the world if the ICJ articulates concrete obligations that States have to present and future generations in light of the climate catastrophe. In this time of increasing turmoil, an Advisory Opinion would be a recognition and validation of our indomitable will to survive and serve as a beacon of hope to the youth.
[*] Anxhela (Angela) Mile is a third-year law student at the Elisabeth Haub School of Law at Pace University, studying environmental and international law. Prior to law school, Anxhela attended Boston College and studied environmental geoscience and international studies. She is a Research and Writing editor on Pace Environmental Law Review and has served as a law clerk at the Department of Justice and as a legal intern at the United Nations.
[**]Railla Puno is an LLM candidate at the Elisabeth Haub School of Law at Pace University, specializing in Global Environmental Law. Prior to Pace, she worked on ocean and fisheries conservation, climate change, and sustainable finance issues with Rare Philippines. She participated in the climate negotiations from COP 21 to COP 23 in various roles, including as negotiator and expert adviser for the Philippine delegation to the UNFCCC and as Policy Coordinator for the international secretariat of Climate Action Network. She also worked with the Philippine Climate Change Commission as Legal Services Division Chief and Executive Assistant to the Minister. She obtained her JD degree from the University of the Philippines in 2014.
[1] INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE (“IPCC”), Summary for Policymakers of IPCC Special Report on Global Warming of 1.5°C approved by governments (Oct. 2018), https://www.ipcc.ch/2018/10/08/summary-for-policymakers-of-ipcc-special-report-on-global-warming-of-1-5capproved-by-governments/.
[2] PATRICIA BIRNIE, ET AL., INTERNATIONAL LAW & THE ENVIRONMENT 119 (Oxford University Press, 3d ed. 2009); World Commission on Environment and Development, Our Common Future (1987).
[3] Art. 65(1), I.C.J.
[4] Art. 96(1), I.C.J.
[5] U.N. Charter art. 18(1).
[6] Rules of Procedure of the General Assembly, 81.
[7] Art. 65 ¶ 1, I.C.J.
[8] Id.
[9] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8).
[10] Climate Justice for Future Generations Petition: https://www.change.org/p/united-nations-general-assembly-climate-justice-for-present-and-future-generations?recruiter=1004208382&recruited_by_id=02250b40-d856-11e9-aa44-c725e1068aed&utm_source=share_petition&utm_medium=copylink&utm_campaign=petition_dashboard.
[11] I am Climate Justice website: https://www.globalclimatejustice.com/; Pace Law Inter-Generational Justice website, https://law.pace.edu/inter-generational-climate-justice.
[12] Climate Action Tracker, 2100 Warming Projections, (Sept. 2019), https://climateactiontracker.org/global/temperatures/.