Advisory opinions: the dawn of climate clarity under international law

20 May

In March this year, Opportunity Green filed a written statement to the International Court of Justice (ICJ) asking it to clarify countries’ legal obligations to reduce emissions from international aviation and shipping. Our Legal Assistant, Olivia, takes a closer look at the advisory function of the international court and its significance in clarifying states’ legal obligations. She also questions the unique opportunity to resolve the international buck-passing of responsibility for emissions from international aviation and shipping.

In April 2023, the General Assembly of the United Nations requested that the ICJ provide an opinion to clarify states’ obligations in respect of climate change. This followed an initiative led by the Republic of Vanuatu.

The crux of the request is to ensure the climate system is protected against GHG emissions for present and future generations by providing greater clarity on what states are obliged to do under international law.

Opportunity Green submitted a written statement to the ICJ, focusing on the obligations of states to address the emissions from international shipping and aviation. The emissions from these sectors are huge and seriously jeopardise the goals of the Paris Agreement. We argue that the obligation on states to address such emissions is already enshrined in the international climate regime.

But clarification on this matter by the ICJ would be helpful given the lack of climate action and the long-held misconception by many states that responsibility for these emissions sits with international UN agencies.

Advisory opinions – what are they and do they hold legal weight?

Advisory opinions can be sought under a number of international courts to provide clarification on particular questions or points of law. Although not legally binding, these opinions can help to clarify obligations under existing treaties or laws and are considered to “carry great legal weight and moral authority.”

With this in mind, advisory opinions in the context of climate change hold great potential as a tool in advancing the understanding of countries’ climate obligations to induce definitive and ambitious action.

In addition to the ICJ advisory proceedings, there are two other climate advisory proceedings underway before the International Tribunal for the Law of the Sea (ITLOS) and the Inter-American Court of Human Rights (Inter-American Court) respectively.

Opportunity Green also submitted a written statement to the ITLOS proceedings, which is due to hand down its opinion on 21 May. It’s likely that the outcome of the ITLOS opinion will inform the ICJ hearing to some degree, given there is some overlap in the matters being considered. Here lies a pivotal moment to assert a multilateral position on states’ climate obligations under international law

ICJ Advisory Opinion – the context and what’s at stake

Despite three climate advisory opinions concurrently being heard, we should not gloss over the momentous journey to securing the ICJ advisory proceedings. The request for an advisory opinion marked the culmination of a four-year-long campaign to secure climate-focused proceedings at the ICJ. These efforts were spearheaded by Pacific Islands Students Fighting Climate Change (PISFCC) with the support of likeminded youth organisations and climate vulnerable countries.

PISFCC’s motivations are rooted in climate inequality and the ever-increasing humanitarian crises caused by climate hazards. These are disproportionately felt by vulnerable populations such as small island states having paradoxically contributed to less than 1% of global GHG emissions.

As the leading region in bringing the ICJ advisory opinion, the Republic of Vanuatu experienced twin cyclones in March 2023 which resulted in significant economic and cultural loss and damage. This disaster demonstrates the intrinsic link between the climate crisis and the ability to enjoy human rights. Indeed, the UN Special Rapporteur on climate change has observed the climate crisis impact the entirety of human rights.

Under the leadership of Vanuatu, the resolution was unanimously adopted by the United Nations General Assembly to request an advisory opinion from the ICJ, meaning 193 states agreed by consensus. The advisory opinion has gone on to receive a record 91 written statements – the highest number received in any advisory opinion heard at the ICJ – which goes to show the collective determination to assert climate accountability.

Our submission – how does international aviation and shipping fit in?

Opportunity Green’s written statement seeks to confirm States’ legal obligations States under the Paris Agreement and other sources of international law, to reduce emissions from international aviation and shipping.

For too long, States have deferred action in these sectors to specialised United Nations agencies, the International Maritime Organization (IMO) and International Civil Aviation Organization (ICAO) for shipping and aviation respectively.

Both bodies have significantly lagged behind the Paris Agreement, in terms of GHG reduction targets; the IMO failed to align itself with the temperature target through its 2023 revised strategy, while the ICAO adopted a long-term aspirational goal of net zero by 2050 it has not set out any pathway to such goal and its current trajectory is consistent with +4°C. As a result, states have failed to discharge their legal obligations by deferring to the IMO and ICAO.

This is important because the two sectors combined account for nearly 5% of global GHG emissions. They have been left largely unregulated and allowed to grow in a business as usual fashion despite clear scientific evidence telling us we need to rapidly decarbonise these sectors.

Our submission shows that it is also a matter of complying with international law. We have asked the ICJ to confirm that:

The long-term temperature goal to limit global warming to below 1.5°C under the Paris Agreement, must necessarily include the reduction of emissions from international aviation and shipping, which should also be included in states’ NDCs.
States have a duty under the Law of the Sea to address pollution from all sources “introduced by man” which applies to international shipping and aviation emissions.
States must take unilateral and/or regional action to discharge their obligations to the extent that international rules and standards remain insufficient.

States need to submit their latest round of NDCs by 2025. The majority of States do not currently account for emissions from international shipping and aviation in their reduction targets so our requested clarification of states’ obligations under international law would help unlock desperately-needed climate action in these sectors. We can’t afford for them to fall between the gaps.

For more information, read our submission to the ICJ Advisory Opinion and our submission to the ITLOS Advisory Opinion.