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Small Island States push for answers on Climate Change from the ICJ and ITLOS

On 12 December 2022, the International Tribunal on the Law of the Sea (ITLOS) received a request for an advisory opinion on the interpretation of the obligation to preserve and protect the marine environment under the 1982 UN Convention on the Law of the Sea (UNCLOS) in relation to climate change impacts such as ocean warming, sea level rise and ocean acidification. The request was made by the Commission of Small Island States on Climate Change and International Law (COSIS), an international organisation established by way of an international agreement in late 2021, whose mandate expressly includes requesting advisory opinions from the ITLOS (Article 2(2)). The COSIS project is complementary to the initiative led by Vanuatu along with other small island and climate-vulnerable states to request an advisory opinion on climate change from the International Court of Justice (ICJ).

On 20 November 2022, the latter project culminated in a draft resolution text which was notified to all UN member states and is set to be tabled for discussion and voting at the UN General Assembly in early 2023. This draft, prepared by a coalition of 17 countries, asks the ICJ to answer two questions based on conventional and customary international law, viz.  

  • what are the obligations of States to ‘ensure the protection of the climate system and other parts of the environment for present and future generations’; and
  • what legal consequences these obligations envisage for those states that have caused significant harm to the climate system and other parts of the environment, with respect to injured, specially affected or climate-vulnerable countries and ‘peoples and individuals’ of present and future generations affected by the adverse effects of climate change.

The ICJ’s advisory jurisdiction extends to ‘any legal question’ requested by the UN General Assembly and the Security Council, and legal question ‘arising within the scope of [the] activities’ of other authorized bodies (Article 65, ICJ Statute; Article 96, UN Charter). However, the fact that the Court is requested to answer a legal question by way of a UN General Assembly resolution does not mean that it has a duty to exercise its advisory jurisdiction. For reasons of propriety, the ICJ may refuse to answer legal questions posed to it.

In its jurisprudence, the ICJ has explained that it will not answer a request if doing so ‘would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent’ (Western Sahara, [33]). This is not a hurdle for the request at hand as the draft resolution does not single out individual countries who may be regarded as violating international legal rules and principles relating to the ‘protection of the climate system or other parts of the environment for present and future generations.’ The initiative seems to be motivated by a desire for greater clarity on climate change related obligations and the consequences of their breach. There is no doubt that small island states and other vulnerable countries are unsatisfied by the level of protection or the depth of obligations to take protective measures envisaged by the international climate change regime.

While the initiative may be perceived as an attempt to circumvent the problems associated with the international law-making process by asking for judicial law-making, it may be argued that the initiative hopes for the Court to articulate existing international legal norms which may be derived from different legal regimes including international human rights law and the law of the sea, and different kinds of norms (rules and principles). Which one of these two frames the Court adopts is significant as it has implied in a previous case that it may be compelled to refuse a request for advisory opinion on account of its influence on ongoing international negotiations (Thirlway, 2006, at [17]).

It remains to be seen if a majority of the UN General Assembly members are convinced of the merits of adopting this resolution, although some reporting suggests that at least 100 countries have indicated their support for the resolution. It is also worth noting that previous efforts of a similar kind by the Marshall Islands and Palau failed to reach the formal negotiation stage at the Assembly. The initiative led by COSIS, on the other hand, does not face such a hurdle. In contrast to the ICJ, access to the ITLOS to obtain an advisory opinion is broad. The Tribunal’s jurisdiction comprises all matters specifically provided for in any international agreement which confers jurisdiction on the tribunal (Article 21, ITLOS Statute); and the Tribunal ‘may give an advisory opinion on a legal question 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’ (Article 138, ITLOS Rules). It is necessary that the requesting body has been authorized to submit a request by such an international agreement, and the request contains ‘a legal question’ having a sufficient connection with the purposes and principles of that international agreement (SFRC Advisory Opinion, [60], [68]).

The text of the Agreement establishing the COSIS clearly indicates that it is an international agreement related to the purposes of the UNCLOS, especially concerning the protection and preservation of the marine environment as well as the preservation of interests in the maritime rights and entitlements provided for under the UNCLOS. The request filed by COSIS asks the Tribunal to clarify the ‘specific obligations’ of parties to the UNCLOS to take measures relating to greenhouse gas emissions which cause deleterious effects on the marine environment; and measures responding to climate change impacts on the marine environment, including ocean warming, sea-level rise and ocean acidification. In the past, the ITLOS did not shy away from answering clarificatory legal questions surrounding states’ obligations to respond to the global problem of Illegal, Unreported and Unregulated (IUU) Fishing, which was brought to it by an inter-governmental fisheries cooperation organization established by an agreement between seven West African coastal states who were particularly affected by IUU Fishing (SFRC Advisory Opinion). The agreement establishing the COSIS seems to be inspired by this example and may be rightly described as the first jurisdictional agreement concluded for the primary purpose of seeking advisory opinions from the ITLOS. Considering its approach in the SFRC Advisory Opinion, it is likely that the ITLOS will find that it does indeed have the jurisdiction to give an advisory opinion on COSIS’ request.

Written by Pranav Ganesan (Research Assistant at the Chair of Professor Helen Keller, University of Zurich)

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UN Human Rights Council appoints new UN Special Rapporteur on Human Rights and Climate Change

On 1 April 2022 the United Nations (UN) Human Rights Council appointed Ian Fry as the world’s first UN Special Rapporteur on the promotion and protection of human rights in the context of climate change. The mandate for a new special rapporteur on climate change was established by the Council in its 48th session (on 8 October 2021) where it also adopted a landmark resolution recognising the human right to a safe, clean, healthy, and sustainable environment (A/HRC/RES/48/13). Fry, who will be holding this position for three years, is an expert in international environmental law and policy with extensive experience in climate negotiations as a representative of Tuvalu.

This appointment marks the success of an over a decade-long campaign for the Council to establish a thematic mandate for a new special rapporteur on human rights and climate change. This campaign was widely supported by civil society organizations as well as several developing countries. The role that UN Special Rapporteurs (UNSR) can play in mainstreaming human rights in environmental policy and decision-making at sub-national, national and international levels cannot be underestimated. With respect to climate change specifically, the UNSR on human rights and the environment, the UNSR on extreme poverty and human rights, the UNSR on human rights of migrants, the UNSR on the rights of indigenous peoples, and the UNSR on the rights of internally displaced persons have identified the link between the adverse short-term and long-term effects of climate change on the enjoyment of different human rights, and indicated that this results in special obligations towards certain protected groups. In the climate litigation space, the UNSR on human rights and the environment has filed several amicus interventions, including in the Portuguese Youth case pending before European Court of Human Rights (along with the UNSR on toxics and human rights), the Torres Strait Islanders case pending before the UN Human Rights Committee, the Sacchi case before the UN Committee on the Rights of the Child, as well as domestic climate cases in Ireland, Norway and Brazil.

It is also worth recalling that in October 2014, 27 UNSRs and independent experts intervened during the negotiations for the Paris Agreement by way of an open letter to the Parties to the UN Framework Convention on Climate Change. Here, they urged that the new treaty must recognise that climate change adversely affects human rights, that the obligation to adopt climate change mitigation measures to keep the global average temperature from rising above a level that is safe (2° C, if not lower) has a basis in human rights law, and that states must respect human rights in the formulation and implementation of climate policy. Unfortunately, the only reference to human rights in the Paris Agreement appears in the preamble, which notes that Parties must respect their respective human rights obligations when taking action to address climate change (para. 11). The negotiations under the umbrella of the UN Framework Convention on Climate Change have not sufficiently addressed the human rights implications of climate change or framed climate mitigation as a human rights obligation. With this background, the work of the special rapporteur on climate change is likely to have even more salience.

Outside of the standard (albeit important) functions performed by holders of thematic mandates, the new rapporteur’s ability to hold states accountable for the protection of human rights is especially crucial in relation to climate action. In this regard, it is worth noting that the mandate of the special rapporteur on climate change includes identifying challenges and making recommendations with respect to “States’ efforts to promote and protect human rights while addressing the adverse effects of climate change…including in the context of the design and implementation of mitigation and adaptation policies, practices, investments and other projects” (A/HRC/RES/48/14, para. 2(b)). This can be done by highlighting good practices of states with reference not just to domestic mitigation and adaptation measures, but also states’ ‘nationally determined contributions’ under the Paris Agreement and contributions towards international support and capacity building. This is a challenging task that needs to be executed carefully in accordance with the principle of common but differentiated responsibility, which is central to international climate change law and equity in climate action. At the same time, the urgency of the existential threat that is climate change lends particular importance to the new office of the special rapporteur.

Written by Pranav Ganesan (Research Assistant at the Chair of Professor Helen Keller, University of Zurich)

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Inter-American Commission on Human Rights’ ground-breaking resolution on the ‘Climate Emergency’

On 4 March 2022, the Inter-American Commission on Human Rights (IACHR) and the Office of the Special Rapporteur on Economic, Social, Cultural and Environmental Rights published a resolution titled ‘Climate Emergency: Scope of Inter-American human rights obligations.’ In the Inter-American Human Rights system, this is the first document dedicated exclusively to the issue of climate change. The resolution was adopted by the IACHR pursuant to its mandate to make recommendations to governments of member States of the American Convention on Human Rights for the adoption of progressive measures in favour of human rights, as well as their observance (Article 41(b)).

The resolution not only recognises the link between climate change and the enjoyment of individual and collective human rights, but also attempts to systematize and concretely describe the human rights obligations of States in the context of the climate crisis. The operative part of the resolution is organized into nine chapters, which contain both normative guidance and concrete policy recommendations.

Interestingly, the resolution offers novel recommendations by bridging international human rights law with international environmental law. For instance, it states that those member States which have made international commitments to develop and update Nationally Determined Contributions (NDCs) (climate-related targets communicated under the Paris Agreement) ‘must incorporate a human rights approach into their construction and implementation’ (paragraph 2). More generally, it recommends that, for procedural and substantive compliance with the ‘right to a healthy environment,’ States must interpret in good faith the principles of environmental law (e.g. prevention, precaution, and so on) in order to seek harmonization and consistency with the principles of international human rights law (paragraph 10).

Most importantly, the resolution affirms that the obligation to take appropriate measures for mitigation of greenhouse gases, implementation of adaptation measures and remediation of climate-relate damages should not be neglected because of the ‘multi-causal nature of the climate crisis’ (paragraph 15). It does so by reading human rights law in accordance with the principle of common but differentiated responsibilities. Moreover, the resolution reiterates findings in the Inter-American Court on Human Rights’ (IACtHR) advisory opinion no. 23 regarding extra-territorial obligations under international human rights law, and applies them in the context of States’ greenhouse gas emissions. The relevant paragraph is worth quoting in whole:

‘39. States are tasked with implementing human rights obligations that are intertwined with those of international environmental law in the contexts of polluting activities within their jurisdiction, or under their control, so that they do not cause serious harm to their environment or that of other countries or areas outside the limits of national jurisdiction. At the same time, the rule of customary international law of “doing no harm” would be breached as a result of greenhouse gas emissions and thus the increase in frequency and intensity of meteorological phenomena attributable to climate change, which, regardless of their origin, contribute cumulatively to the emergence of adverse effects in other States.’

The resolution also dedicates separate chapters to individuals and groups in situations of vulnerability or who have been historically and systematically discriminated against, as well as indigenous peoples, tribal groups, Afro-descendants and those working in rural areas, requiring States to account for the disparate impact that climate change and climate response measures may have on the lives and interests of such individuals and groups.

Judged by the tenor of its language and its coverage of a multitude of issues under international human rights law that relate to climate change, the resolution is ground-breaking. Its normative relevance in the Inter-American Human Rights system is promising, considering the approach of the IACtHR in valuing soft-law instruments arising out of the system for interpretive guidance (see for e.g. OC-23/17, OC-22/16). It remains to be seen how member States receive the resolution and respond to it.

Written by Pranav Ganesan (Research Assistant at the Chair of Professor Helen Keller, University of Zurich)

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2021 Brazil Deforestation Domestic court Emissions reductions Paris Agreement Right to a healthy environment

Laboratório do Observatório do Clima v. Minister of Environment and Brazil

Facts of the case:

This is a class action suit brought before the 7th Federal Environmental and Agrarian Court of the Judiciary Section of Amazonas, by a network of 71 civil society organizations against the Environmental Ministry and the Brazilian Government. The petitioners allege that the respondents are committing a systematic violation of the right to an ecologically balanced environment as well as Brazil’s obligation under the Paris Agreement by- failing to update and implement Brazil’s ‘National Policy on Climate Change’ pursuant to the federal climate legislation, especially in the face of the updates in IPCC’s 6th Assessment Report; downgrading the ambition in Brazil’s ‘Nationally Determined Contributions’ communication under the Paris Agreement; failing to address the problem of deforestation in the Amazon; disproportionately favouring and intensifying the use of fossil fuel over renewable sources in its energy sector; and reducing the powers and capabilities of institutions for environmental protection that make up the national system for environmental protection and climate control, and thereby paralysing the accountability processes.

The reliefs sought by the petitioners include a declaration of non-compliance with constitutional law, and a mandatory injunction. As for the latter, the respondents ask for the preparation of an updated National Policy on Climate Change which takes into consideration all sectors of the economy, is in strict compliance with the federal climate legislation and principles recognised in the Paris Agreement, informed by the IPCC’s latest Assessment Report and the Paris Agreement’s 1.5ºC temperature target.   

Date of institution of proceedings:

26 October 2021

Admissibility:

TBD

Merits:

TBD:

Reliefs Awarded:

TBD

Status of the case:

Pending.

Further information:

On 11 November 2021, Judge Mara Elisa Andrade scheduled a conciliatory hearing between the parties to the case, which was subsequently cancelled on 25 November 2021 owing to the defendants’ lack of interest in settling the dispute through conciliation.

Case documents:

Petition (in Portuguese)

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2021 Brazil Domestic court Emissions reductions Paris Agreement Right to a healthy environment

Thalita Silva e Silva and Others v. Minister of Environment et al.

Summary:
This case was brought before the 14th Federal Civil Court of Sao Paulo by six youths as a popular action against the Brazilian Government, challenging Brazil’s updated ‘nationally determined contribution’ (NDC). These were submitted on 8 December 2020 pursuant to its obligation under Article 4.2 of the Paris Agreement. The petitioners argue that the NDC is regressive in comparison to its previous NDC, as it alters the baseline relative to which its emissions reductions targets for the years 2025 and 2030 were to be calculated. Both the initial and the updated NDC provided for a commitment to reduce greenhouse gas (GHG) emissions by 37% by 2025, and 45% by 2030 compared to 2005 levels, but the estimated emissions for the base year 2005 was increased from 2.1 to 2.8 billion tonnes of CO2 equivalent pursuant to an update in Brazil’s national GHG inventory report.

The petitioners contended that this regression in the updated NDC constituted a violation of Article 225 of the Constitution of Brazil, which provides for the right to an ecologically balanced environment. They further argued that there was a new GHG inventory report which estimated the 2005 emissions levels to amount to 2.4 billion tonnes rather than 2.8 billion tonnes as per the previous inventory report, and since this new report was published before the updated NDC was communicated, the updated NDC stands to be quashed in any case. The respondents contested the courts’ jurisdiction on the ground that the claim concerned an act of the Brazilian government at the international level. They also contended that the NDC in question met the criteria of progression and highest possible ambition.  

Date of decision:

28 May 2021

Admissibility:

The Federal Civil Court of Sao Paulo found that it was competent to adjudicate the case as per Article 109, Item III of the Constitution of Brazil which provides federal courts the competence to hear cases based on a treaty between the Union and other States or international bodies.

Merits:

The Federal Civil Court of Sao Paulo summarily dismissed the plaintiffs’ request for injunction on the count that the updated NDC maintains the emissions reduction targets specified in the previous NDC, and that the change in the estimated emissions during the base year in different national inventory reports was normal and expected in light of improvements in scientific understanding and techniques. It also highlighted that the Paris Agreement requires parties to periodically update their national inventories and inferred from this requirement that the targets in NDCs are to be understood in relation to the inventory available at the time of communicating them. The Court also considered the updated NDC to be ambitious as it contained a carbon neutrality commitment.

Status of the case:

The petitioners have appealed against the decision of the Federal Civil Court.

Suggested case citation:

Federal Civil Court of Sao Paulo, Thalita Silva e Silva & Ors. v. Minister of Environment & Ors., Ação Popular nº 5008035-37.2021.4.03.6100, decision of 28 May 2021.

Case documents:

Petition (in Portuguese)

Decision of the Federal Civil Court of Sao Paulo (in Portuguese)

Categories
2020 Canada Domestic court Emissions reductions Fossil fuel extraction Non-discrimination Right to life Standing/admissibility

Cecilia La Rose v Her Majesty the Queen

Facts of the case:

Plaintiffs comprising of 15 children and youths from various parts of Canada sued the Government and Attorney General of Canada alleging violations of the right to life and right to equality under Sections 7 and 15 of the Canadian Charter of Rights and Freedoms, and the constitutional and common law duty to protect the integrity of common natural resources in public trust. According to the plaintiffs, the impugned conduct of the respondents consisted in: continuing to cause, contribute to and allow a level of greenhouse gas (GHG) emissions incompatible with a Stable Climate System (defined as a climate capable of sustaining human life and liberties); adopting GHG emission targets that are inconsistent with the best available science about what is necessary to avoid dangerous climate change and restore a Stable Climate System; failing to meet the Defendants’ own GHG emission targets; and actively participating in and supporting the development, expansion and operation of industries and activities involving fossil fuels that emit a level of GHGs incompatible with a Stable Climate System.

The defendants, while accepting the plaintiffs’ concerns about the seriousness of climate change and its potential impacts, filed a motion to strike their claim alleging that their claim is not justiciable.

Date of decision:

27 October 2020

Admissibility:

On 27 October 2020 the Federal Court in Ottawa granted the defendants’ motion. The Court answered the question of justiciability of the claims of Charter violations for the reason that the impugned conduct is of undue breadth and diffuse nature, and that the remedies sought by the plaintiffs were inappropriate. The Court also found that it had no constitutional obligation to intervene on the matter as there is room for disagreement between reasonable people on how climate change should be addressed. On the issue of justiciability of the public trust doctrine invoked by the plaintiffs, the Court found that the question of existence of the doctrine is a legal question which courts can resolve. However, the Court found that the plaintiffs’ claim did not disclose a reasonable prospect of success for the purposes of its admissibility.

Merits:

NA

Status of the case:

The plaintiffs have appealed against the Federal Court’s order before the Federal Court of Appeal.

Suggested case citation:

Federal Court of Ottawa, Cecilia La Rose v Her Majesty the Queen, T-1750-19, judgment of 27 October 2020, 2020 FC 1008

Case documents:

For the complaint filed by the plaintiffs on 25 October 2019, click here.

For the Government’s statement of defence notified on 7 February 2020, click here.

For the plaintiff’s reply to the Government’s motion to strike, filed on 31 August 2020, click here.

For the Federal Court of Ottawa’s order dated 27 October 2020, click here.

For the Memorandum of Appeal filed by the plaintiffs on 5 March 2021, click here.

Further reading:

Camille Cameron, Riley Weyman, ‘Recent Youth-Led and Rights-Based Climate Change Litigation in Canada: Reconciling Justiciability, Charter Claims and Procedural Choices,’ 34(1) Journal of Environmental Law (2021), Pages 195–207. Available here.

Categories
2019 Deforestation Domestic court Emissions reductions India Paris Agreement Right to life

Riddhima Pandey v. Union of India and Others

Summary:

The petitioner, Riddhima Pandey, a 9-year old girl residing in the Indian State of Uttarakhand, approached the National Green Tribunal (a special tribunal exercising jurisdiction over environmental cases) in order to review the State and concerned authorities’ inaction on mitigation measures in the face of climate science, and the systemic failure to implement environmental laws (in a manner that addresses climate change). The petitioner based her claim on the ground that the States duty to take the concerned climate action arose out of the public trust doctrine, which the Supreme Court of India has previously held to be based in fundamental rights, directive principles and the preamble of the Indian Constitution. The application in this case was explicitly inspired by the petition in Juliana v. US where also, the child petitioners invoked the public trust doctrine to contest the US government’s inaction.

The petitioner prayed for the court to, among other things, direct the concerned governmental authorities to properly account for the climate related impacts of industrial and infrastructure projects while granting environmental clearances, account for climate impacts of every individual case of forest diversion and ensuring sufficient compensatory afforestation, direct the government to prepare a national greenhouse gas emissions inventory as well as a national carbon budget against which particular projects’ emissions impacts could be assessed.

Date of decision:

15 January 2019

Tribunal’s decision:

The National Green Tribunal dismissed the case, reasoning that there is no reason to presume that the existing environmental legislations and regulations already address climate change and require that climate related impacts be sufficiently accounted for during environmental impact assessments.

Status of the case:

Decided.

Suggested case citation:

National Green Tribunal (New Delhi, India), Ridhima Pandey v. Union of India and Others, Application No. 187/2017, judgment of 15 January 2019)

Case documents:

For the petition filed before the National Green Tribunal on 25 March 2017, click here.

For the order of the National Green Tribunal on 15 January 2019, click here.

Categories
2018 Biodiversity Domestic court Emissions reductions Imminent risk Margin of appreciation Nepal Paris Agreement Right to a healthy environment Right to health Right to life Right to subsistence/food

Padam Bahadur Shrestha v. Office of Prime Minister and Others

Summary:
The petitioner, Padam Bahadur Shrestha, had applied to the concerned authorities in Nepal to enact a separate law on climate change in August 2018, but did not receive a response. He thus filed a petition with the Supreme Court of Nepal alleging that the situation in Nepal is marked by absence of a special climate change legislation, inadequacies in existing environmental legislation in addressing climate change, and poor implementation of the State’s climate change policy. He argued that this suffices to establish a violation of the right to life, right to live in a healthy and clean environment, right to health care and right to food found in Articles 16, 30, 35, and 36 of the Nepali Constitution.

Date of decision:

25 December 2018

Court’s decision:

The Supreme Court of Nepal found that an amendment to the existing laws and introduction of a new consolidated law that addresses climate change was necessary and issued detailed directions on what features the new law must contain. It based this order on the reasons that such would facilitate Nepal’s compliance with its obligations under international law, including the Paris Agreement and that climate mitigation and adaptation directly concern fundamental rights including the right to life, right to have nutritious food and the right to a clean environment. It further held that although the Environmental Protection Act of 1997 addressed environmental protection along the dimension of climate change, its provisions were inadequate regarding climate change mitigation and adaptation.

Status of the case:

Decided.

Suggested case citation:

The Supreme Court of Nepal, Padam Bahadur Shreshta v Office of the Prime Minister and Others, NKP, Part 61, Vol. 3, judgment of 25 December 2018.

Case documents:

For the judgment of the Supreme Court of Nepal (in Nepali), click here.

For an unofficial English translation of the judgment (authored by Hardik Subedi), click here.