Release of Icel’s Note on the Un General Assembly Request for an Advisory Opinion on the Legal Obligation of States in Response to Climate Change
On 18 September 2023, as the United Nations gathered in New York for the 78th session and the high-level meetings, including the SDG Summit and the Preparatory Ministerial Meeting for the Summit of the Future (scheduled for September 2024), ICEL released a NOTE to provide a restatement of the relevant international law which the International Court of Justice (ICJ) will consider in response to the UN General Assembly Resolution 77/276 requesting an advisory opinion:
… on the obligations of States under international law to ensure the protection of the climate system and other parts of the environment … and the legal consequences under these obligations for States.
The NOTE is submitted to UN Member States, international organizations, civil society, and all interested stakeholders in the ICJ advisory proceeding. Procedurally, the ICJ has decided that Member States and certain international organizations may submit written statements by 22 January 2024 and comments on the written statements by 22 April 2024.
While civil society and interested stakeholders may not directly make submissions to the Court, they may, and should indeed, participate by way of urging Member States and international organizations to voice their views and concerns in this unparalleled consensually agreed advisory proceedings of the utmost importance for humankind.
This is a watershed moment for the progressive development of international environmental law and for providing significance to the human right to a clean, healthy, and sustainable environment for present and future generations, recognized in UN General Assembly Resolution 76/300 (July 28, 2022). These questions call for a holistic interpretation of all rights and frameworks for the stewardship of Earth’s shared biosphere and the climate system.
1. The basis for the protection of the biosphere, the climate system, and other parts of the environment is an integration of international law principles emmeshed with human rights, which together operate to “establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained,” and “to achieve international co-operation in solving international problems…,” at the heart of the UN Charter.
2. The existential problem of climate change is global in nature because it concerns Earth’s shared and only biosphere. Thus, stewardship of the shared biosphere must be integrated as a pillar of international law.
3. Since 1988, the UN General Assembly “[r]ecognizes that climate change is a common concern of mankind, since climate is an essential condition which sustains life on earth.” The UN General Assembly has continuously worked on the “Protection of global climate for present and future generations of humankind”, with over 18 resolutions on the matter.
4. ICEL stresses the urgency of formalizing States’ obligations under international law to protect the climate system because Earth is at a critical juncture.
5. The UN Intergovernmental Panel on Climate Change (IPCC) findings concretely draw a correlation between human action and the degradation of Earth’s biosphere, climate, and other interconnected systems. Similarly, the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES), finds that: “Nature is declining globally at rates unprecedented in human history, and climate change is amongst the five direct drivers of change in nature with the largest relative global impacts so far.”
6. Five key principles enjoying global consensus in international law provide the foundation for States’ positive obligation for the stewardship of the shared biosphere and the climate system. These principles are elucidated by international case law, treaties, and customary law and are undergirded by general concepts of human rights.
7. First, international law principles of cooperation, solidarity, and good faith are vital in determining States’ duties based on the negative environmental impact of climate change on all States.
8. Second, the principle of prevention of significant harm implies an affirmative duty to prevent transboundary harm to other States and shared resources.
9. Third, States have an obligation under customary international law to exercise procedural due diligence. Further, due diligence embeds the duty of States to operate in good faith, thus ensuring compliance with affirmative environmental duties and not causing harm to another state, which may also imply notification and consultation.
10. Fourth, customary international law imposes a specific obligation to undertake an environmental impact assessment (EIA) where there is a risk of significant transboundary environmental harm.
11. Fifth, to protect the human rights of present and future generations, States must also have a duty to protect the biosphere, the climate system, and other parts of the environment, as human rights are dependent upon environmentally habitable conditions. Consequently, the UN General Assembly has formally recognized the human right to a clean, healthy, and sustainable environment, as underlying the law of human rights and sustainable development.
12. These five principles that obligate States to preserve Earth’s shared biosphere are based on customary law and on codifications in many multilateral treaties, regional agreements, and the global consensus on the application of these international principles to the environmental context, as noted in the ICEL Charts annexed to the Note.
13. The advisory opinion will be expected to address the obligations of States, and the legal consequences under these obligations, providing practical and effective measures that constitute cooperation, solidarity, and due diligence under human rights and environmental rights for the care of the biosphere and the climate system. In the context provided in the NOTE, what are the obligations of States under the international law on cooperation, prevention of significant transboundary harm, due diligence, EIA and human rights to ensure the protection of the biosphere and climate system? These are the questions for which guidance is needed, should States:
(i) identify the source of all its greenhouse gas emissions?
(ii) identify all opportunities to sequester carbon and other greenhouse gas emissions?
(iii) protect biodiversity while sequestering greenhouse gas emissions, such as in preserving forests and preserving and protecting wetlands and soils?
(iv) undertake measures to protect vulnerable individuals including indigenous peoples?
(v) take measures of solidarity to protect small island States, coastal communities, and other areas subject to sea level rise?
(vi) take measures to protect areas prone to desertification and drought?
(vii) take measures to protect communities in mountainous regions?
(viii) undertake cooperation to build the capacity of all States to cope with the impacts of climate change?
(ix) and, more broadly, accelerate their observance of internationally agreed obligations under international environmental law to safeguard the biosphere and climate system?
(x) what are the international environmental law due diligence standards that should also inform the standard of care to be applied by States in discharging their human rights obligations in the context of climate change?