On 29 March 2023, the United Nations General Assembly adopted by consensus a resolution, put forward by the Pacific island of Vanuatu, to ask the International Court of Justice (ICJ) to issue an advisory opinion: (i) explaining what, if any, international law obligations states have to protect the climate from the impact of greenhouse gas emissions; and (ii) providing guidance on the legal consequences for states which have caused significant harm to the climate by their actions and omissions (noting in particular harm which has been caused to developing nations and to individuals). Ahead of the General Assembly’s vote, the resolution had received support from over 120 co-sponsoring countries, including the UK and various European nations.
ICJ advisory opinion
ICJ advisory opinions are rare; this will be only the 29th advisory opinion given by the ICJ since the Court was established in 1946, and the first concerning the climate and environment. While the ICJ’s advisory opinions are non-binding, they are nevertheless regarded by many as carrying significant legal and moral weight. In particular, some envisage that the ICJ’s opinion could prompt governments to revisit their climate policies and priorities and that, if the ICJ is of the view that states are under international law obligations to protect the climate from the impacts of greenhouse gas emissions, this is likely to add further momentum to new climate litigation.
As ICJ advisory opinions are non-binding and relate only to the potential liability of states and governments, the ICJ’s opinion in relation to this issue will not directly impact businesses. However, businesses could indirectly be impacted if, on the basis of the opinion, states and inter-governmental bodies decide to implement new legislation and policies which attempt to accelerate de-carbonisation and mandate further action be taken to mitigate the effects of climate change.
Loss and damage
The recitals to the General Assembly’s resolution emphasise the need to avert, minimise and address ‘loss and damage’ caused by the effects of climate change, particularly in developing countries. Last year, Vanuatu became one of the first countries to suggest means to address loss and damage caused by climate change. In an update to its Nationally Determined Contributions under the 2015 Paris Agreement, the nation called for the establishment of a loss and damage fund under the UN Framework Convention on Climate Change which would see the most climate-affected nations receive compensation from other nations.
Loss and damage was also addressed at the two most recent COP climate change summits, with Scotland becoming the first country to commit to compensating affected nations by pledging £2 million for a loss and damage scheme at COP26 (followed by a further £5 million at COP27).
A focus on loss and damage is consistent with a developing trend in climate litigation by which claimants seek compensation for alleged climate damage (see, for example, the cases brought against energy company RWE in Germany and by four Pulau Pari islanders against cement group Holcim in Switzerland). Historically, climate litigation cases (at least in Europe) have focused more on seeking declaratory relief and changes in government and corporate behaviour (such as Urgenda’s 2015 case, which sought an order that the Dutch government must reduce its emissions).
Human rights-based climate litigation landscape
A number of climate litigation cases have been brought across the world on the basis of human rights, often concerning whether states have human rights obligations to their citizens to take adequate action to mitigate the impacts of climate change (such as in a pending case against Sweden) and reduce greenhouse gases (such as in a successful case against Germany in 2020).
In fact, the General Assembly’s vote came on the same day as the first-ever hearings before the European Court of Human Rights (ECHR) in relation to climate change, including a case brought against Switzerland by a group of women concerning the duty of states to reduce greenhouse gas emissions and whether this interferes with the human rights of individuals. A similar claim against France was heard on the same day. Both cases were heard in the Grand Chamber, which is reserved for serious cases likely to affect the interpretation of the European Convention on Human Rights. To the extent that decisions in such cases find that governments’ and public authorities’ climate activities have breached any human rights obligations, the relevant government or public authority may subsequently decide to implement new policies or amend existing policies. Such policy changes could impact businesses.
The outcome of the ICJ’s advisory opinion remains to be seen. In the interim, we anticipate seeing an ongoing focus on the issue of ‘loss and damage’ in cases brought against states and businesses at international and national level.