Landmark climate change hearings represent largest ever case before UN court
© FAO/Felipe Rodríguez Deforestation releases carbon into the atmosphere, which fuels climate change and further harms forests.
The hearings are part of the process towards the court issuing an advisory opinion, which will clarify States’ legal obligations under international law and the consequences for breaching them.
They are scheduled to take place from 2 December until 13 December in the Hague, Netherlands.
Here are five things you need to know about the historic proceedings:
1.What are the hearings about?
The hearings broadly concern the obligations of States with respect to climate change and the legal consequences of these obligations. They are significant because they represent the international community’s efforts to come up with a legal framework for addressing climate change.
More simply put, the court is being asked to provide clarity on international law with respect to climate change. The legal advice it provides may in turn influence any multilateral processes involving climate action.
The two central questions asked of the court are as follows:
1.What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic [human caused] emissions of greenhouse gases for States and for present and future generations;
2.What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:
a. States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specifically affected by, or are particularly vulnerable to, the adverse effects of climate change?
b. Peoples and individuals of the present and future generations affected by the adverse effects of climate change?
© UNICEF/Vlad Sokhin Children in a Pacific Island stand in an area heavily affected by sea level rise and coastal erosion.
2.How did this case come to the ICJ?
In September 2021, the Pacific island of Vanuatu announced its intention to seek an advisory opinion from the ICJ on climate change. It explained that this initiative, which had been pushed for by the youth group Pacific Island Students Fighting Climate Change, was necessitated by its vulnerability and that of other small island developing States to climate change and the need for increased action to address the global climate crisis.
Vanuatu then lobbied other countries to support this initiative and formed the core group of UN Member States to take the initiative forward in the General Assembly.
The discussions within the core group led to the development of resolution A/RES/77/276, which was eventually adopted by the General Assembly on 29 March 2023. A total of 132 countries co-sponsored the resolution.
The resolution drew upon “particular regard” to the UN Charter, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the UN Framework Convention on Climate Change, the Paris Agreement, the UN Convention on the Law of the Sea and rights recognised in the Universal Declaration of Human Rights, “the principle of prevention of significant harm to the environment and the duty to protect and preserve the marine environment”.
3.Who is authorised to request advisory opinions and what happens next?
Advisory proceedings are only open to five organs of the United Nations and 16 specialised agencies of the UN. While the UN General Assembly and Security Council may request advisory opinions on “any legal question”, the other UN organs and specialised agencies can only do so with respect to “legal questions arising within the scope of their activities”. The majority of advisory opinions have been requested by the UN General Assembly.
As a rule, organizations and States authorised to participate in the proceedings submit written statements, followed by written comments on the other statements submitted if the court considers it necessary.
The court will decide whether to hold oral proceedings, after which the advisory opinion is delivered following a sitting of the court.
4.Why is this case so significant?
This case is the largest ever seen by the world court, with 91 written statements filed with the court’s registry alongside 62 written comments on these statements submitted by the court’s extended deadline of 15 August 2024.
A similar record number of 97 States and eleven international organizations are scheduled to participate in the oral proceedings. These hearings are a chance for countries and organizations to elaborate on their written statements and testify directly.
The proceedings have particular importance for the small island developing States which initially pushed for the opinion. Significantly, they are taking place just one week after developing nations criticised a deal at COP29 to provide $300 billion a year in climate finance by 2035, calling the agreement “insulting” and arguing it did not give them the vital resources they require to truly address the complexities of the climate crisis.
“We are literally sinking,” one representative said following COP29, pointing out the agreement highlighted “what a very different boat our vulnerable countries are in, compared to the developed countries”.
With small island developing States already facing some of the worst impacts of climate change, these hearings are vital to establish a stronger framework of accountability that sets clear international legal obligations for climate action.
UN Photo The towers and gables of the Peace Palace, home of the International Court of Justice (ICJ) in The Hague.
5.What effect can an advisory opinion have?
Unlike judgments in contentious cases, the court’s advisory opinions are not binding. They clarify legal questions. The requesting organ, agency or organization – the General Assembly in this particular case – remains free to decide, as it sees fit, what effect to give to these opinions.
However, while not binding, advisory opinions have “an authoritative value and cannot be neglected”, according to the ICJ Registrar in a recent interview with UN News. They carry great moral authority by what is considered the world’s highest court and the principal judicial body of the UN.
This opinion on climate change can help inform subsequent judicial proceedings such as domestic cases, influence the diplomatic process and will likely be cited in thousands of climate-driven lawsuits around the world, including those where small island States are seeking compensation from developed nations for historic climate damage, according to one media source.
The UN Secretary-General, António Guterres, has stated that such an opinion will help the General Assembly, the United Nations and Member States to “take the bolder and stronger climate action that our world so desperately needs”.
“It could also guide the actions and conduct of States in their relations with each other, as well as towards their own citizens. This is essential,” he emphasised.
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