INTERNATIONAL COURTS AND CLIMATE CHANGE

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Context: A group of 16 countries has launched a gallant effort to fight the problem of climate change — an existential threat to human civilisation — at the United Nations (UN). Led by Vanuatu — an island country in the South Pacific Ocean — the group seeks an advisory opinion from the International Court of Justice (ICJ) on the issue of climate change.

Details:

Vanuatu’s initiative:

• Notwithstanding the presence of several international legal instruments on climate change such as the United Nations Framework Convention on Climate Change, the Kyoto Protocol and the Paris Agreement, the international community has fallen short of delivering concrete solutions to the problem of climate change.
• The recently concluded 27th UN Climate Change Conference (COP-27) where countries failed to narrow their differences on critical issues such as reducing greenhouse gas emissions perfectly exemplifies the failure of the international community to get its act together on the issue of climate change.
• Small Island Developing (SID) states such as Vanuatu are most vulnerable to rising temperatures and sea levels.
• Accordingly, in September 2021, Vanuatu launched an initiative, through the UNGA, to seek an advisory opinion from the ICJ to “clarify the legal obligations of all countries to prevent and redress the adverse effects of climate change”.
• Since then, the initiative has gathered momentum with reportedly more than 100 countries backing the idea.

Legal questions:

The draft resolution piloted by Vanuatu seeks answers to the following questions from the ICJ.

• First, what are the international law obligations of countries toward the protection of the climate system from anthropogenic emissions of greenhouse gases for the present and future generations?
• Second, given these international legal obligations, what are the legal consequences for states that have caused significant harm to the climate system, the SID states and other people of the present and future generations?

International Court of Justice (ICJ):

• It is the principal judicial organof the United Nations (UN).
• It was established in June 1945by the Charter of the United Nations and began work in April 1946.
• ICJ is the successor to the Permanent Court of International Justice (PCIJ), which was brought into being by the League of Nations in 1922.
• Seat: ICJ is based at the Peace Palace in The Hague. It is the only one of the six principal organs of the UN that is not located in New York City.
• Roles:“to settle legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies”.
• Membership:All members of the UN are automatically parties to the ICJ statute, but this does not automatically give the ICJ jurisdiction over disputes involving them. The ICJ gets jurisdiction only if both parties consent to it.
• Appellate: The judgment of the ICJ is final and technically binding on the parties to a case. There is no provision of appeal;it can at the most, be subject to interpretation or, upon the discovery of a new fact, revision.
• ICJ has no way to ensure compliance of its orders, and its authority is derived from the willingness of countries to abide by them.
• ICJ has 15 judgeswho are elected to nine-year terms by the UN General Assembly and Security Council, which vote simultaneously but separately. Four Indians have been members of the ICJ so far. Justice Dalveer Bhandari, former judge of the Supreme Court, has been serving at the ICJ since 2012.

Jurisdiction:

• The ICJ has two types of jurisdictions: contentious and advisory.
• While contentious jurisdiction refers to resolving legal disputes between consenting states, under advisory jurisdiction, the UN General Assembly (UNGA), the Security Council (SC) and other specialised bodies of the organisation can request the ICJ for an opinion on a legal question.
• Unlike decisions given under the contentious jurisdiction, the ICJ’s advisory opinions are non-binding. Yet, they carry normative weight and clarify international law on a relevant issue.
• The ICJ’s advisory opinion on climate change will also be handy in climate-related litigation at the national level.

Role of ITLOS:

• The Commission of Small Island States on Climate Change and International Law, comprising countries like Antigua and Barbuda and Tuvalu, has sought the advisory opinion of the Hamburg-based International Tribunal for the Law of the Sea (ITLOS).
• ITLOS has been requested to determine the specific obligations of the countries under the United Nations Convention on the Law of the Sea about preventing, controlling, and reducing pollution of the marine environment.
• The challenges of ocean warming, sea level rise and ocean acidification are all linked to the marine environment.

About ITLOS:

• The International Tribunal for the Law of the Sea (ITLOS) is an intergovernmental organization created by the mandate of the Third United Nations Conference on the Law of the Sea.
• It was established by the United Nations Convention on the Law of the Sea, signed at Montego Bay, Jamaica, on December 10, 1982.
• The Convention entered into force on November 16, 1994, and established an international framework for law over all ocean space, its uses and resources.
• The ITLOS is one of four dispute resolution mechanisms listed in Article 287 of the UNCLOS.
• The Tribunal is based in Hamburg, Germany.
• The Convention also established the International Seabed Authority, with responsibility for the regulation of seabed mining beyond the limits of national jurisdiction, that is beyond the limits of the territorial sea, the contiguous zone and the continental shelf.
• There are currently 168 signatories, 167 states plus the European Union.
• As of December 2022, holdouts included the United States and the Islamic Republic of Iran.
• Disputes referred to the International Tribunal for the Law of the Sea or one of its chambers can be heard in Germany or in Singapore.

PRACTICE QUESTION Q) Discuss the role of international courts in countering climate change. (150 words)

https://www.thehindu.com/opinion/op-ed/international-courts-and-climate-change/article66564780.ece