Beyond COP26: Time for an Advisory Opinion on Climate Change?

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The recent Glasgow Climate Change Conference (COP26) provided a stark reminder of the gap between states’ planned greenhouse emission reductions and the global temperature goal enshrined in the Paris Agreement. The conference also dramatically showcased once more the plight of vulnerable nations faced with the devastating impacts of rising sea levels and extreme weather events. In almost three decades, international climate change law – as enshrined in the 1992 United Nations Framework Convention on Climate Change, the 1997 Kyoto Protocol and the 2015 Paris Agreement – struggled to deliver convincing solutions to either problem. As the impacts of climate change become increasingly apparent, addressing these glaring gaps in international cooperation is more urgent than ever.

In 2019, Desierto called upon ‘the invisible college of international lawyers’ to devote more efforts ‘towards reviving the blunt edge’ of litigation, adjudication, and arbitration, in order to help tackle the climate emergency. Over the years, there has been much speculation on the possibility to resort to international courts’ contentious or advisory jurisdiction, in order to put pressure on states to reduce emissions and/or to redress harm associated with the impacts of climate change (Savaresi, 371). While similar initiatives have gone nowhere in the past, in the lead-up to COP26 two campaigns were launched to seek an advisory opinion on climate change from the International Court of Justice (ICJ) and the International Tribunal on the Law of the Sea (ITLOS), respectively.

As Thirlway reminds us, advisory opinions ‘constitute advice’ and ‘do not legally bind either the requesting entity or any other body or State to take any specific action pursuant to the opinion’. If however, the aim is just that to clarify the law, an advisory opinion is preferable and less controversial than a contentious case. For example concerning state responsibility for harms associated with the impacts of climate change (Savaresi, 385).

While the ITLOS has a rather short history with advisory opinions – to date it has delivered only two – the ICJ has already given twenty seven. The ICJ also has a broader remit than ITLOS and can in principle give an opinion on any legal question (Art. 96 UN Charter; Art. 65 ICJ Statute). The remit of ITLOS’ advisory jurisdiction is circumscribed to questions concerning the UN Convention on Law of the Sea (UNCLOS).

So could an advisory opinion on climate change make a difference, where climate diplomacy has failed? And what added value would it have? This post revisits the scholarly debate on advisory proceedings over climate change, with a view to assessing the prospects and likely impacts of the initiatives announced in the lead up to COP26.

The new momentum for an advisory opinion on climate change

In September 2021, the Pacific island nation of Vanuatu announced an initiative to seek an advisory opinion from the ICJ, with a view ‘to clarify[ing] the legal obligations of all countries to prevent and redress the adverse effects of climate change’. More specifically the objective of the initiative is that to establish clear standards for climate action and ‘climate justice benchmarks’, which may be used in contentious adjudication. An ICJ advisory opinion may be issued at the request of the UN General Assembly (UNGA), the Security Council, or by other UN organs and specialised agencies. The latter, however, may only request an opinion upon authorisation of the UNGA and on questions falling within the scope of their activities (ICJ Statute, Art. 65 and UN Charter, Art. 96). The Vanuatu campaign intends to pursue the UNGA route, which requires support from the majority of UN members present and voting. At an event held on the sidelines of COP26, some members of the team of experts assisting the Vanuatu campaign underscored the need to ensure that the request is broadly supported and perceived as legitimate. Yet, reaching consensus at the UNGA is going to be difficult.

Presumably for this reason, at the start of COP26, the Governments of Antigua and Barbuda and Tuvalu signed an Agreement for the Establishment of the Commission of Small Island States on Climate Change and International Law, with the intention to seek an advisory opinion from the ITLOS. Pursuant to Article 138 of the ITLOS Rules of Procedure, the tribunal may give an advisory opinion ‘if an international agreement related to the purposes of the [UNCLOS] specifically provides for the submission to the Tribunal of a request for such an opinion’.

The Agreement signed on the sidelines of COP26 sought to comply with this requirement. It entrusts the Commission to ‘promote and contribute to the definition, implementation and progressive development of rules and principles of international law concerning climate change’. While UNCLOS does not deal with greenhouse gases specifically, the impact of these pollutants raises concerns also for the protection of the marine environment. UNCLOS make parties responsible, amongst others, for regulating and controlling the risk of marine pollution resulting from the activities of the private sector through an obligation of due diligence (Arts. 192–194). In all likelihood, the Commission of Small Island States on Climate Change and International Law will rely on these premises to formulate its advisory opinion request. Indeed, the Agreement establishing it specifically mentions ‘state obligations concerning the protection and preservation of the marine environment’, as well as ‘state responsibility for injuries arising from internationally wrongful acts’.

At a joint press conference, the Governments of Antigua and Barbuda and Tuvalu presented the agreement as an ‘avenue’ to deal with loss and damage. In a statement delivered at COP26, the leaders of small island states further elaborated that, should no formal international mechanism to finance loss and damage be established under the climate treaties, UN Member States may resort to international adjudication. As COP26 failed to establish such a mechanism, the momentum towards a request for an advisory opinion on climate change is growing.

While little is presently known about how these advisory opinion campaigns will unfold – and what questions they will ask, if any, from either or both the ICJ and ITLOS – it seems timely to revisit the scholarly debate on international courts’ advisory proceedings over climate change.

Advisory opinions: pros and cons

The literature has explored various scenarios for contentious international adjudication over climate change, focusing on state responsibility for breaches of international obligations enshrined in climate change and human rights treaties, UNCLOS, as well as in customary norms. See, for example, the works by Verheyen, Faure and Nollkaemper, Voigt, Wewerinke-Singh and Boyle. The possibility to seek an advisory opinion has attracted relatively little scholarly attention.

Bodansky has argued that an ICJ advisory opinion could bring legal clarity to and progress in international diplomatic endeavours, for example concerning the contours of states’ due diligence obligations to ensure that their greenhouse gas emissions do not cause serious damage to other states. In his view, such an opinion could set the terms of the debate, provide evaluative standards and establish a framework of principles to develop more specific norms, and, ultimately, ‘shape public consciousness and define normative expectations for a broad variety of actors as on its direct influence on States’ (Bodansky, 706). If indeed the aim is just that to clarify the law, an advisory opinion would be preferable and less controversial than a contentious case, for example concerning state responsibility for harms associated with the impacts of climate change (Savaresi, 385).

Choosing the right question(s) for an advisory opinion, however, is not easy. Sands has suggested that ‘a clear statement by a body such as the ICJ – as to what is or is not required by the law, or as to what the scientific evidence does or does not require – may itself contribute to change in attitudes and behaviour’ (Sands, 11). Bodansky has cautioned that an advisory opinion should avoid issues addressed directly in the climate change negotiations, especially highly political and contentious ones. He warns that an opinion on such issues ‘would have little upside potential but considerable dangers’, most importantly that of throwing the ICJ into extremely political debates, thus damaging its reputation, while exacerbating tensions in international climate negotiations (Bodansky, 711). Instead, he argues, an advisory opinion could elaborate more specific criteria of due diligence, for example by establishing ‘a common language’ for national climate action plans, or NDCs (Bodansky, 709).

There are drawbacks associated with the latter suggestion, too. If, for example, the objective is to develop more detailed rules concerning NDCs, the climate treaties’ bodies are arguably in a better position – both technically and procedurally – than an international court to develop such rules. As Bodansky himself notes, even an advisory opinion on the due diligence obligations associated with NDCs could be regarded as undermining the nationally determined nature of states’ plans and, therefore, as contrary to the spirit of the Paris Agreement (Bodansky, 710). In 2017, Bodansky, Brunnée and Rajamani concluded that an advisory opinion would ‘at best put pressure on states in the FCCC to reach a stronger agreement, rather than directly cause them to reduce their emissions’(Bodansky, Brunnée and Rajamani, 289).

Indeed, as the relatively short history of the ICJ’s nomophylactic jurisprudence shows, advisory opinions do not necessarily have a transformative impact. As Thirlway put it, ‘[j]ust as a potential plaintiff State will not institute contentious proceedings unless it has considerable confidence of success, there is inevitably a tendency, on any issue of real political significance, for the requesting body to put to the Court only questions the answer to which is regarded as safely predictable’.

Nevertheless, in the 2021 article, Rajamani et al. underscore the potential role of general international law to complement and plug gaps in ambition, accountability and fairness in the climate regime. Specifically, they argue that general principles of international law may help in determining fair shares in state efforts to combat climate change and reduce emissions (ibid., 988). At an event on the sidelines of COP26, Rajamani further explained that an advisory opinion could rely on general international law principles, like the no-harm principle and the related due diligence obligations, to complement and interpret the ‘open-textured’ obligations in the Paris Agreement. She further indicated that the ICJ could clarify the ‘nature and extent’ of states’ obligations on climate change in the wider context of international environmental law, bringing cohesiveness to states’ fragmented international obligations in this area. Rajamani explained that an advisory opinion could ‘concretize’ state obligations, identifying benchmarks to assess state actions and giving national courts tools to scrutinise those activities.

This concretization could be especially helpful in light of the rising tide of national climate litigation. An increasingly large number of lawsuits all over the world rely on various sources of law – ranging from tort to human rights and administrative law – to demand that state and corporate actors reduce greenhouse gas emissions, and/or redress the harms associated with the impacts of climate change – see the databases curated by the Sabin Centre for Climate Change Law and the Grantham Research Institute in Climate Change and the Environment.

Landmark judgements, like Urgenda Foundation v The Netherlands, Neubauer et al v Germany and Milieudefensie et al v Royal Dutch Shell PLC, have clearly shown that national courts are increasingly comfortable with relying also on international climate change law obligations, even when those obligations are ambiguous or aspirational. In this context, the added value of an advisory opinion would be strengthening the hand of domestic judges, providing them with greater clarity over states’ international law obligations, especially in grey areas, which parties to the climate treaties have left to ‘constructive ambiguity’ (Bodansky and Rajamani, 184).

Is the time ripe for an advisory opinion?

After many years of speculation, the ICJ and ITLOS may soon be asked to consider the matter of climate change, in the context of an advisory opinion. We do not yet know which questions will be put to which court, and what amongst the many challenges plaguing international climate cooperation they will target. The teams working on the formulation of said questions are certainly not short of options.

As noted above, COP26 has only incrementally narrowed the gap between states’ current emissions reduction pledges and the goal to limit global warming to 1.5°C above pre-industrial levels (see e.g. Climate Action Tracker). The recently concluded work on the so-called rulebook for the operationalisation and implementation of the Paris Agreement has left many observers dissatisfied with the robustness of the agreed arrangements (see e.g. CIEL). In a similar vein, parties to the climate treaties have failed to honour their 2009 pledge to provide USD 100 billion of mitigation and adaptation finance per year.

The countries initiating the two advisory opinion campaigns have signalled that they would like to seek the authoritative guidance of an international court on the long-neglected matter of loss and damage. Given what we know about climate change and its present and projected impacts, it is baffling that almost thirty years of international diplomacy failed to deliver solutions to the complex questions associated with the loss of human lives, territory, livelihood, property, habitats and cultural heritage associated with climate change.

There are clear risks in asking an advisory opinion on a highly sensitive political issue, such as this. After all, recourse to the international courts ‘must work with the seams of political and institutional realities and not against the grain’ (Higgins, 1055). At this critical junction, however, an advisory opinion might have clear advantages. With the recent completion of the Paris Agreement’s rulebook, an advisory opinion could clarify the role of other international law sources, vis-à-vis the obligations enshrined in that treaty. Even more crucially, an advisory opinion could provide guidance on how to deal with matters that the Paris Agreement only addresses in an ambiguous way. In this connection, an advisory opinion may become the avenue to at long last break the deadlock on loss and damage.

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Alan boyle says

December 19, 2021

Much food for thought here