IUCN and Advisory Opinion on Climate Change at the International Court of Justice – Indian Blog of International Law

Chhaya Bhardwaj

The International Union for the Conservation of Nature (IUCN) was permitted by the International Court of Justice (ICJ) to participate in the ICJ’s Advisory Opinion on the obligations of States in the context of climate change. IUCN was placed in a unique position before the ICJ because it is the only participating international organization with State and Non-State members. IUCN’s written submission (WS), written comment (WC), and oral submission (OS) bring out the position of IUCN on the two questions presented before the court, which are discussed and analyzed in this post. 

Question A

For the first question before the ICJ, IUCN began by underlining how the term “climate system” should be defined individually and concerning the environment. Reiterating Article 1 (3) of the United Nations Framework Convention on Climate Change (UNFCCC), IUCN states that the term “climate system” is “the totality of the atmosphere, hydrosphere, biosphere and geosphere and their interactions” (WS, para 19). IUCN interpreted the first question as revolving around mitigation measures by the states and generally does not include the duties of States concerning adaptation measures or loss and damage (WS 22). To answer Question A, IUCN looked into core climate change treaties like the Paris Agreement and UNFCCC and the principles of customary international law (WS para 30). 

In its submission during the Oral Hearings before the Court, IUCN highlighted that the primary obligation of the States in the context of climate change is to “limit global warming to 1.5 degrees Celsius” (OS page 31), and it is an obligation of stringent due diligence, depending upon the common but differentiated responsibility based on respective capabilities (CBDR-RC).  This combination of principles of due diligence and CBDR-RC and the obligations set forth within the Paris Agreement imply that commitment of States in the context of climate change are both procedural and substantive (OS page 33). However, the obligations under the Paris Agreement are obligations of result, requiring the States to take domestic measures to phase out dependence on fossil fuels. 

According to IUCN, the United Nations Convention on the Law of the Sea (UNCLOS) is also an additional treaty comprising obligations relating to climate change (OS page 33). Furthermore, the Convention on Biological Diversity (CBD), the Montreal Protocol and its Kigali Amendment, and the United Nations Convention to Combat Desertification and Human Rights Treaties are also treaties where obligations to protect the climate systems can be found (WC para 16-39). IUCN emphasized the European Court of Human Rights decision in  Verein KlimaSeniorinnen Schweiz v Switzerland to assert that human rights treaties include positive obligations to reduce GHG emissions (WC para 42). 

Apart from these treaties, IUCN has also underscored the application and interpretation of customary international law (CIL) obligations to mitigate GHG emissions, which are reflected within the treaty obligations and can be read along with the treaties discussed as primary sources of international law (WS para 158). For example, IUCN highlights that UNCLOS Article 192’s obligation to protect and preserve the marine environment is a principle of CIL and, therefore, an obligation for all States (WS para 175). The CIL obligations include preventing significant harm to climate systems (WS para 307-318); and due diligence to avoid significant harm (WS para 342-415); procedural due diligence (para 416 – 446); & duty to cooperate (para 447- 456).

Question B 

IUCN focused on secondary rules within the Draft Article on the Responsibility of States (ARSIWA) for the second question because the consequences of breach of an obligation by a State naturally speaks with the international law governing responsibility for internationally wrongful acts (WS para 539-542). And therefore, as a matter of principle of international law, if it is established that a State’s actions or omissions constitute an internationally wrongful act, then under ARSIWA, the State must cease the wrongful act, or/and not repeat the wrongful act, or/and make reparations for the injury causes by the wrongful act (WS para 542). IUCN emphasized that obligations and consequences of a specific State “will spend on the circumstances of a specific case” (OS page 38) and should also consider the rights of unborn future generations (OS page 38). 

Conclusion

IUCN is clear in its position, which is based on the scientific fact that GHG emissions are causing significant harm to the climate system as a whole and causing climate change. Based on this fact, States are under an obligation under treaty, customary and general international law rules, governing climate change, environmental and human rights regimes. Due to the multitude of causes and effects of climate change, the existing rules of international law cannot be applied in abstraction and can benefit from the ICJ’s advisory opinion to develop rules concerning obligations and responsibility for climate change, and consequential cessation, non-repetition and reparations. 

(Chhaya Bhardwaj is an Alexander von Humboldt International Climate Protection Fellow and a PhD Candidate at the Dublin City University, Ireland.)