Did the ICJ Do Enough to Address the Human Rights Aspects of Climate Change? – Indian Blog of International Law

Quazi Omar Foysal

The Request for an Advisory Opinion on “Obligations of States in respect of Climate Change” offered the International Court of Justice (ICJ), which has increasingly refrained from engaging robustly with human rights issues over the past decades, a unique opportunity to consolidate the existing sources and progressive developments concerning the human rights aspects of climate change while contextualizing other interrelated branches of international law. The inclusion of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Rights of the Child in both the preambular paragraphs of UNGA Res. 77/276 and the Advisory Opinion Request itself provided States and participants in the advisory proceedings with an adequate framework to elaborate their legal arguments on the intersection between human rights and climate change.

In its Advisory Opinion (AO/Opinion), the ICJ unanimously held that it “[i]s of the opinion that States have obligations under international human rights law to respect and ensure the effective enjoyment of human rights by taking necessary measures to protect the climate system and other parts of the environment.” Within the body of the Opinion, the Court addressed the matter in three distinct parts: first, it recognized that “the adverse effects of climate change may impair the effective enjoyment of human rights” (paras 372–386); second, it interpreted the right to a clean, healthy and sustainable environment under international law (paras 387–393); and finally, it analysed the territorial scope of human rights treaties (paras 394–402).

This blog piece aims to highlight three critical issues emerging out of the AO: first, the Court’s approach to sources in its deliberations; second, the nature of the right to a clean, healthy and sustainable environment; and third, the ICJ’s position on the extraterritorial application of human rights treaties.

Consolidation of the Fragmented Jurisprudence on Climate Change and Human Rights

While States were navigating the seemingly unattainable goal of bringing the Request for Advisory Opinion before the Court, numerous political and judicial bodies increasingly engaged with the intersection of climate change and human rights. These include the European Court of Human Rights, the Inter-American Court of Human Rights, the African Court of Human and Peoples’ Rights, the UN General Assembly, the Human Rights Council, the International Law Commission, and various treaty-based human rights bodies such as the Human Rights Committee. Although the ICJ has previously accepted interpretations from human rights bodies (see, Zarbiyev), the cultural relativism inherent in human rights law creates a risk of fragmentation in the development of legal norms concerning climate change.

The current unanimous Advisory Opinion made a commendable attempt to offer a uniform jurisprudence on climate change and human rights. In addressing the above-mentioned issues, the Court largely endorsed jurisprudence developed by various judicial and quasi-judicial bodies, including its own earlier rulings. It also drew on non-binding instruments and commentary produced by relevant UN organs and other political organs.

While the Advisory Opinion Request cited foundational instruments such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Rights of the Child, the Court expanded its sources to include other core international and regional human rights instruments. Significantly, it also referred to national constitutions and domestic legislation, particularly in support of the right to a clean, healthy and sustainable environment. It is worth noting that the current Advisory Opinion also cited documents from different bodies of the UN without clarifying their status as sources.

Though the ICJ’s engagement with these instruments may suggest a stricter adherence to the source doctrine moving forward, its efforts to consolidate fragmented jurisprudence and mitigate the risk of further disintegration in the human rights and climate change regime deserve recognition.

Omission to Clarify the Nature of the Right to a Clean, Healthy and Sustainable Environment

Despite dedicating seven paragraphs and consulting a wide range of legal materials, the ICJ’s conclusion on the autonomous status of the right to a clean, healthy and sustainable environment leaves room for ambiguity. At least four judges expressed concerns regarding the Court’s treatment of this issue.

Judge Aurescu argued persuasively that the Court ought to have affirmed the customary status of this right, citing the fulfilment of the two requirements for the formation of customary international law: consistent State practice and opinio juris. Judge Charlesworth further noted the Court’s omission in elaborating the substantive and procedural content of the right. Judge Bhandari expressed his belief that while the right had indeed been recognised under customary international law by the Court, the Opinion lacked a clear articulation of its normative components.

Judge Tladi identified three approaches to the relationship between human rights and the environment: (i) the recognition of an autonomous right to a clean and healthy environment, (ii) the protection of environmental interests through existing substantive rights, and (iii) the pursuit of environmental objectives through procedural rights. He concluded that the Court conflated the first two categories instead of unambiguously recognising the right as a standalone right. Nonetheless, he agreed that the right exists under customary international law, supported by substantial evidence of State practice and opinio juris.

These judicial opinions suggest that the status and content of the right to a clean, healthy and sustainable environment will remain a central topic for international legal scholarship. While support for its existence as a customary norm appears to outweigh opposition, the Court’s imprecise articulation may deminish its practical utility, as noted by Judge Charlesworth.

Application of the Extraterritorial Scope of Human Rights Treaties in the Climate Change Context

Since its Advisory Opinion on the Legal Consequences of the Construction of a Wall (2004), the ICJ has consistently acknowledged that human rights treaties may apply extraterritorially. In the present Advisory Opinion, the Court reaffirmed this position, extending it to the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Rights of the Child. However, it ultimately refrained from defining the specific circumstances under which a State may be regarded as exercising jurisdiction extraterritorially, asserting that such a determination must be based on the provisions of each treaty.

Although this approach is consistent with the Court’s prior jurisprudence, it pours ambiguity into an already complex area of law. Generally, there exist two primary models of the extraterritorial application of human rights treaties: the territorial model, based on a State’s control over a geographic area, and the personal model, based on a State’s control over individuals. Both models have been endorsed by various international bodies. Yet their applicability to climate-related obligations affecting third States or individuals in third States will certainly invite additional legal discourse in future.

The Prospects of the Advisory Opinion in Solidifying the Human Rights Aspect of International Climate Change Law

The ICJ’s Advisory Opinion appears to have sacrificed analytical precision for the sake of unanimity. This trade-off, while diplomatically strategic, may prove costlier in the long term than the value of the consensus achieved. The ambiguities surrounding the status of the right to a clean, healthy and sustainable environment, the extraterritorial scope of treaty obligations, and the application of the principle of non-refoulement in the climate change context may give rise to legal contestation by States that are reluctant to embrace climate obligations.

Nonetheless, the Opinion represents a significant milestone. Though the Advisory Opinions of the ICJ are not binding in nature, they appear to have made enormous impacts on the concrete development of international law. As a pronouncement from the principal judicial organ of the United Nations, it offers a strong foundation for advancing and consolidating the human rights dimensions of climate change law. It also serves to mitigate the risks of fragmentation and foster a more uniform interpretation among States. With the increasing engagement of national and international actors in this domain, the ICJ’s contribution will likely have enduring influence, even as its ambiguities invite further legal development.

(Quazi Omar Foysal is a PhD Candidate at La Trobe University and an Advocate of the Supreme Court of Bangladesh.)