EJIL:The Podcast! Episode 18 – “Be Careful What You Ask For”

In this episode Dapo Akande, Marko Milanovic and Philippa Webb are joined by Philippe Sands (University College London and 11KBW) and Margaretha Wewerinke-Singh (University of Amsterdam and University of the South Pacific). The focus is on the advisory function of international courts and tribunals. In December 2022, the Commission of Small Island States on Climate Change and International Law (COSIS) requested an advisory opinion from the International Tribunal for the Law of the Sea on climate change impacts arising from ocean warming, sea level rise and ocean acidification. On 9 January 2023, Chile and Colombia signed a joint advisory opinion request to the Inter-American Court of Human Rights on the scope of state obligations for responding to the climate emergency. On 20 January 2023, the General Assembly adopted a resolution requesting an advisory opinion from the ICJ on “Israeli practices affecting the human rights of the Palestinian people on the Occupied Palestinian Territory, including East Jerusalem”. On 20 February 2023,  a core group of states, led by Vanuatu, formally tabled a final draft resolution for consideration during the current session of the UN General Assembly. The resolution requests the ICJ to provide an advisory opinion on the obligations of states under international law to protect the rights of present and future generations against the adverse effects of climate change.

In this episode, the speakers look to the past and the present to assess the changing role of advisory proceedings. Philippe reflects on his experience  – his first appearance in the ICJ – on the Nuclear Weapons Advisory Opinion. The crucial strategy of formulating “the question” is discussed, with insights from Philippe on the Chagos advisory proceedings and from Margaretha on the meticulous process of settling on the wording of the ICJ climate change request. The speakers consider the challenges of an unwelcome outcome to an advisory request and how to turn jurisdictional competition into a positive factor.

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Programming note: please also keep an eye out on a post by Juan Auz and Thalia Viveros-Uehara which will be published later this week, and which will address the climate change advisory proceedings before the Inter-American Court.