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Last week, the General Assembly of the United Nations adopted an important resolution: it asks the International Court of Justice to assess what are the “obligations” of States in the fight against climate change. What to expect from this process? The duty spoke with Géraud de Lassus St-Geniès, a professor of climate change law at Laval University.
What does the resolution say, exactly?
It requests an advisory opinion, that is to say a legal opinion on the state of the law, on the subject of the obligations of States in the fight against climate change. This analysis focuses on treaties on climate change, such as the Paris Agreement, but it also extends to other treaties concerning, for example, the protection of human rights or the protection of marine environments. These can also be useful in the fight against climate change, in the sense that we can deduce obligations that have an impact on the control of greenhouse gas emissions. There are many uncertainties about the application of these treaties. The purpose of the operation is therefore to seek clarification from the International Court of Justice.
Why is this request occurring now?
This is an idea that has been circulating for more than ten years. In the past, two small Pacific states had taken steps to bring this issue before the International Court of Justice. But unfortunately, there had been pressure, particularly from the United States, and the States had not agreed to move forward. In addition, for a long time, States feared that a clarification of international law would complicate the negotiation of a major climate agreement. The context has changed: we have now succeeded in negotiating the Paris Agreement. Another reason why the demand arises now is rather scientific. Compared to ten years ago, climate change has become an issue on which States can no longer ignore. Diplomatically, it has become difficult to refuse this type of initiative.
Will the advisory opinion be more binding than the Paris Agreement or other existing instruments?
An advisory opinion is not binding on States. At the same time, the International Court has strong moral authority because it is the jurisdiction that deals with all general questions of international law. It is important to emphasize that the Court interprets law which is binding. If ever there were a contentious procedure afterwards, the Court would retain the same interpretation. The binding force will mainly depend on the type of opinion that the Court will give. There are two scenarios. In the first, the Court decides to be very precise, to give a very detailed interpretation of what States must do to comply with their international obligations. At that time, it would go further than the Paris Agreement. In the second case, the Court gives very vague answers, which will not offer more guidance to States.
From now on, what procedures will they start?
The Court will ask the States to file briefs. They will then be able to come and express themselves orally. Afterwards, the Court will give its opinion. Expect a lead time of at least 20 months. Note also that the question is very open and that it concerns many texts of international law. The Court could decide to rephrase the question in a way that seems more appropriate.
Do you think that the question of human rights will lead the Court to adopt a different, new position, compared to that of the major climate texts?
Civil society would appreciate clarification on what, concretely, under human rights, states are obliged to do. This will be important because we also find the protection of human rights in national legal systems. It is certain that the interpretation of the International Court of Justice will be used by civil society to carry out climate trials at the national level.
From what we know of the judges in office, of their style, what kind of opinion do you expect?
It’s a good question. What I can tell you is that in the last judgments of the Court that touch on environmental issues, there have been very divergent interpretations among the judges. Perhaps we will now see a desire to clarify questions that have remained unresolved for ten years. I believe that the main challenge facing the Court – and it is the same challenge facing national courts – is to what extent a court can play the role of a legislator, of imposing standards of conduct that states have never agreed to.
What importance could the advisory opinion have for the States most vulnerable to climate change?
It should not be forgotten that last week’s request is at the origin of a State, Vanuatu, whose existence is threatened by the rise in sea level. One of the elements requested from the Court, it is to specify what the consequences will be for the States which do not respect their climate obligations, in particular with regard to the small States which are victims of the upheavals. The legal opinion could open new perspectives in disputes between small island states and, for example, Canada, the United States, the European Union and China. So far, some states, including the United States, refuse to acknowledge any legal responsibility for the effects of climate change on small island states. A lock may be blown.
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