The greatest consultation of history raised to (TIJ) on the legal responsibility of countries in climate change already has an answer. This Wednesday, his 15 judges have unanimously issued an advisory opinion that qualifies as “urgent and existential” the threat generated by them, and underlines “the obligation of international cooperation” to prevent damage inflicted on the environment and therefore to people.
Although the opinion is not binding, it indicates that the signatory states of the different agreements in force on the weather are obliged to take measures to limit CO₂ emissions and thus contain the rise in temperatures in 1.5 degrees of the average temperature of the planet. It emphasizes, in turn, the need to protect the environment to respect human rights, and indicates that states that do not take all these measures may be violating international law.
The president of the Court, Iwasawa Yuji, recalled “the limits of this legal opinion that has been requested to us, that we hope you report and guide the search for a solution to the climate crisis.” The opinion exceeds 500 pages and, pointing out that a sustainable environment “is a human right” can clarify the application of international law in relation to the climate. In this way, the possibility that those who have attended Tij have been searching for advice on this occasion with other demands, or go to the local courts, would be paved.
While Yuji read the opinion, and also before, there have been demonstrations of climatic activists at the gates of the court, based in The Hague. They carried banners where they asked for “justice” and the protection of human rights.
The Tij should answer two questions, in particular, in the light of the United Nations Charter and the Universal Declaration of Human Rights, as well as specific texts such that the Paris Agreement, the Kyoto Protocol (in force since 2005) and the UN Framework Convention on Climate Change (1992). These are: What obligations have the United Nations Member States, in accordance with international law, to protect other Member States and future generations against climate change? And also what are the legal consequences if these Member States continue to issue CO₂ and do not take sufficient measures to reduce greenhouse gases?
Regarding the first issue, Yuji has said that “environmental protection is a precondition to protect human rights”, and that the adverse effects of climate change “can hinder the right to family, health and access to housing and water.” So “the right to a sustainable environment is an indispensable condition to enjoy other rights,” he said.
About the second question, Yuji recalled that given the “unprecedented damage caused by climate change”, the fact that a country breaches its obligations regarding international treaties on the climate “can constitute an illegal act.” Since multiple countries are the cause of polluting emissions “that accumulate”, the TIJ considers that “each country must take care of its particular responsibility”, despite the fact that there are “many causes involved in pollution. What has not been able to establish the TIJ is the type of compensation in case of environmental damage” given that this cannot always be repaired “, although they can be asked” to restore the damaged ecosystems if possible. Otherwise, calculate the repair “will depend on the nature and circumstances of what happened.”
The request that has resulted in the advisory opinion of the TIJ had been initiated in 2019 by Vanuatu, an island state of the Pacific whose survival depends on the rise in sea level. His application came in March 2023 to the United Nations General Assembly that, based on a text project of Vanuatu himself co -crocked by 105 states, issued a resolution asking the TIJ to pronounce on the climatic obligations of the countries. In the audiences almost 100 countries and intergovernmental organizations have participated, and in the background, beating and continues the gap that separates the so -called historical contaminators – United States, China, Brazil, Japan, Canada, Germany and the United Kingdom, among them – of small island states or developing nations. For the former, the Paris Agreement or the Kyoto protocol are enough and the framework to negotiate the protection of the climate. The latter consider that they suffer in excess the effects of the change of climate caused by others and they only have to ask for justice.
Throughout his speech, President Yuji has stressed several times that “climate change affects both ecosystems and people, and that is a situation recognized by the UN.” He also recalled that an increase in current temperatures greater than 1.5 degrees Celsius “is a global threat, as indicated by the experts consulted” and that are framed in the reports on the climate known by the United Nations.
International litigation
The binding, but this time the judges have consolidated the link between the destruction derived from the change of climate and the rights of the affected populations. Given the legal and political weight of the court, or the signing of agreements that must be fulfilled. So, although the courts do not usually lead social movements, that of the UN has taken a step forward for climatic justice.
The TIJ has addressed other cases related to the environment, such as the conflict between Argentina and Uruguay -2006-2010- for the construction of a cellulose factory, allowed by international judges prior recommendation of a commission to calibrate its impact. The question of the climate threatened by the rise in sea level due to the increase in temperatures. Together with coastal erosion, hurricanes are increasingly frequent and intense, and despite the fact that, with its 320,000 inhabitants, it barely contributes to the change of climate, it is in the front line of the countries that suffer the most with its consequences.
In 2019, the Pacific Islands Students Fighting Climate Change (students of the Pacific Islands against the change of climate) was created in Vanuatu, which collaborated with the National Government to campaign in favor of the subsequent resolution of the UN General Assembly.
