How to Act Now on Intergenerational Climate Justice through an Advisory Opinion on Climate Change
Tomorrow, the United Nations General Assembly (UNGA) will vote on the final draft resolution of the advisory opinion (AO) on climate change before the International Court of Justice (ICJ). This historic vote will help set the tone for the future of climate change in the courts. The resolution asks the ICJ to issue an AO on the following questions:
(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 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 specially 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?
Earlier this month, young people worldwide, including the authors of this article, gathered in a virtual 12-hour conference to demand immediate climate action by supporting the ICJ AO, along with other AO requests before the Inter-American Court of Human Rights and International Tribunal for the Law of the Sea. The inter-regional conference, hosted by youth organizations, showcased the momentum of young people advocating for climate justice in the highest courts.
We are quickly running out of time to slow warming to avoid accelerating self-reinforcing feedback loops that trigger climate tipping points. At the current rate of warming, the 1.5°C guardrail will be breached within this decade, even as early as 2024. According to the World Meteorological Organization, there is a 10% chance that all of the next five years will breach 1.5°C, with the deadlier 2°C limit to be breached by 2045. Surpassing 1.5°C of warming risks crossing at least six climate tipping points that could lead to irreversible changes in our climate system. Therefore, implementing fast-acting climate solutions, such as cutting emissions of super pollutants like methane and protecting existing carbon sinks, can help avoid the most warming in the next critical decade or two, slow self-reinforcing feedbacks and avoid tipping points, and protect the most vulnerable frontline communities.
AOs can serve as one avenue to demand fast mitigation that can slow the rate of warming now to protect all of us before it is too late. In a climate emergency, justice means to act now to remain under 1.5°C of warming. As States have a duty of care obligation to protect its citizens, the ICJ AO resolution provides a unique opportunity to avert a climate catastrophe and demand climate justice.
AOs are generally non-binding analyses that allow a court or tribunal to interpret broadly-applicable legal questions. AOs are influential and have strong moral authority in the courts. Recently, AOs are being used to seek guidance from international courts and tribunals on the duty of states to mitigate climate change. In December 2022, the Commission of Small Island States on Climate Change asked the International Tribunal for the Law of the Sea to issue an AO on States’ responsibilities regarding climate change’s effects on coastal communities and the marine environment. In January 2023, the Presidents of Chile and Colombia issued a joint request for an AO from the Inter-American Court of Human Rights on States’ duties under human rights law to protect present and future generations by addressing the climate emergency, which the Court accepted this month. Many courts of the Americas have explicitly held that AOs from the Inter-American Court are binding and authoritative interpretations of law, and are influential in catalyzing laws and policy reforms in the Americas.
In November 2022, Vanuatu, along with 17 other States, announced its historic campaign to seek an ICJ AO that identifies country obligations to protect the rights of present and future generations against the adverse effects of climate change. As the primary judicial arm of the UN, ICJ AOs hold great weight in developing and clarifying international law for future proceedings before international courts and tribunals. An AO on climate change can clarify vague principles of international environmental law, affirm the legal use of climate science, and highlight the needed role of the Courts in climate change law and policy.
So far, 105 UN member states have co-sponsored the ICJ AO resolution (see above). However, several States are conspicuously missing, including 9 of the top 10 GHG emitters in 2021: China, the US, India, Russia, Japan, Iran, Saudi Arabia, Indonesia, and South Korea. The hosts of COP27 and COP28 — Egypt and the UAE — have also not yet co-sponsored the draft resolution. We must hold these countries accountable and use our voices to demand climate action today.
Regardless, the ICJ AO movement is gaining momentum, led by a strong coalition of island nations and youth activists. This ICJ AO initiative was revitalized by 27 Pacific Island law students who built upon Palau’s prior ICJ AO campaign to focus on human rights and climate change. Today, the ICJ AO campaign has grown beyond the Pacific, united under the World’s Youth for Climate Justice. This campaign, led by youth, empowered other young people to demand climate action in the highest courts. For small island nations, near-term climate mitigation to slow the rate of sea level rise is a survival strategy. The window of time for climate action is quickly closing, and frontline communities need climate solutions today.
AOs that address the climate crisis as a human rights issue are valuable tools in advancing the climate justice movement and intergenerational equity. Rights-based approaches are crucial to gain the global support we need to address the climate crisis at all levels through near-term mitigation, adaptation and resilience, protection from loss and damage, and implementation of the Paris Agreement and future international climate treaties. AOs also provide a powerful legal endorsement of the best available science and scientific consensus on climate change, and can be more accessible than traditional litigation due to its broad applicability and campaign potential. This provides a meaningful way for civil society and climate advocates, especially young people, to hold their governments accountable for protecting their citizens.
What does the youth expect to see out of the ICJ AO? We want justice for intragenerational and intergenerational equity. We want the Court to clearly highlight government obligations to protect the rights of the current and future generations. That is the beating heart of our activism. If the UNGA votes in favor of the AO resolution tomorrow and the ICJ responds favorably, we will have a better chance to protect the world from the deadly impacts of climate change.
So, what can we do? For now, we can urge our governments to support the ICJ AO resolution and wait as the UNGA votes on our future. We can also participate in the AO process at the Inter-American Court of Human Rights to demand that fast mitigation is central to States obligations to protect people. While this is no silver bullet to the climate crisis, it is a huge step forward in international law. We urge countries to engage with the process and to increase their climate ambitions. Regardless of tomorrow’s vote, young people will continue to mobilize and empower others in our climate advocacy to demand climate justice now.
If you are interested in participating in the AO process, please reach out to us at FACEIntergenerationalJustice@gmail.com.
To learn more, here are some useful tools:
- Brief: Advisory Opinion 2-pager
- Toolkit for Civil Society: International Court of Justice Advisory Opinion Campaign
- Report: Human rights in the face of the climate crisis: a youth-led initiative to bring climate justice to the International Court of Justice (2022)
- Video: The Power of the People (2020)
- Sign the petition by Pacific Island Students Fighting Climate Change!
- For more resources, go to: https://www.wy4cj.org/resources
- Reach out to World’s Youth for Climate Justice to take action!
Trina Chiemi (she/they) is a founding co-chair of Fast Action on Climate to Ensure Intergenerational Justice (FACE Intergenerational Justice), a research associate studying near-term climate solutions and climate justice at the Institute for Governance & Sustainable Development (IGSD), and a JD candidate at Vermont Law & Graduate School (VLGS). | Instagram: @FACEclimatejustice
Himaja Nagireddy (she/hers) is the 11th Youth Observer to the UN from the US, as part of the United Nations Association of the USA (UNA-USA). She currently serves as a health equity research fellow for the Agency for Toxic Substances and Disease Registry (ATSDR) at the CDC and the Johns Hopkins School of Medicine. | Instagram: @USyouthobserver and @Himaja.Nagireddy / Twitter: @HimajaNagireddy
Nicole Ponce (she/hers) is an environmental activist and human rights lawyer-advocate from the Philippines. She is part of the core group of the World’s Youth for Climate Justice and the Asian front convener of the campaign. Currently, she is working for the Normandy Chair for Peace in France as a research fellow on themes involving the recognition of the rights of future generations, climate justice, and the internormativity of human rights. | Instagram: @nicolewy4cj
The authors are thankful for the contribution and review from Erika Gerstenberger, IGSD Law Fellow, and Romina Picolotti, Center for Human Rights & Environment Founder & President and IGSD Senior Policy Analyst.
