ICJ Resolution

On 29 November 2022, a group of 16 ICJ Champions Nations sent their draft Resolution to all UN member states to kickstart the inclusive consultation process that will lead to a UNGA vote at the 77th session, likely in early in 2023 on a date to be set by the UNGA Presidency and Secretariat. Resolution translations here: French, Portuguese and Spanish.

DRAFT RESOLUTION

Seventy-seventh session

Agenda item 70: Report of the International Court of Justice

Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change

The General Assembly,

[PP1] Recognizing that climate change is an unprecedented challenge of civilizational proportions, and that the well-being of present and future generations of humankind depends on our immediate and urgent response to it,

[PP2] Recalling its resolution 76/205 of 17 December 2021 and all its other resolutions and decisions relating to the protection of the global climate for present and future generations of humankind, and its resolution 76/300 of 28 July 2022 on the human right to a clean, healthy and sustainable environment,

[PP3] Recalling further Human Rights Council resolution 50/9 of 7 July 2022 and all previous resolutions of the Human Rights Council on human rights and climate change, and Human Rights Council resolution 48/13 of 8 October 2021, as well as the need to ensure gender equality and empowerment of women,

[PP4] Emphasizing the importance of the Charter of the United Nations, the Universal Declaration of Human Rights, the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the United Nations Convention on the Law of the Sea, the Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances that Deplete the Ozone Layer, among other instruments, and of the relevant principles and obligations of customary international law, including those reflected in the Declaration of the Stockholm Conference on the Human Environment and the Rio Declaration on Environment and Development, to regulate the conduct of States over time in relation to activities that contribute to climate change and its adverse effects,

[PP5] Recalling further the United Nations Framework Convention on Climate Change, the Kyoto Protocol and the Paris Agreement, as expressions of the determination to address decisively the threat posed by climate change, urging all States Parties to fully implement them, and noting with concern the significant gap between the aggregate effect of States’ current mitigation pledges and the emission reductions required to limit the adverse effects of climate change,

[PP6] Acknowledging that all countries’ actions in response to climate change will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances, in accordance with the United Nations Framework Convention on Climate Change and the Paris Agreement,

[PP7] Noting with profound alarm that emissions of greenhouse gases continue to rise despite the fact that all countries, particularly small island developing States and other developing countries, are vulnerable to the adverse effects of climate change and are already experiencing an increase in such effects, including persistent drought and extreme weather events, land loss and degradation, sea level rise, coastal erosion, ocean acidification, the retreat of mountain glaciers, further threatening food security, water availability and livelihoods, and efforts to eradicate poverty in all its forms and dimensions and achieve sustainable development,

[PP8] Noting with utmost concern the scientific consensus, expressed inter alia in the reports of the Intergovernmental Panel on Climate Change, including that anthropogenic emissions of greenhouses gases are unequivocally the dominant cause of the global warming observed since the mid-20th century, that human-induced climate change, including more frequent and intense extreme events, has caused widespread adverse impacts and related losses and damages to nature and people, beyond natural climate variability, and that across sectors and regions the most vulnerable people and systems are observed to be disproportionately affected,

[PP9] Acknowledging that as temperatures rise, impacts from climate and weather extremes, as well as slow onset events, will pose an ever-greater social, cultural, economic and environmental threat,

[PP10] Emphasizing the urgency of scaling up action and support, including finance, capacity building and technology transfer, to enhance adaptive capacity and to implement collaborative approaches for effectively responding to the adverse effects of climate change in developing countries that are particularly vulnerable to these effects, as well as for averting, minimizing and addressing loss and damage associated with those effects,

[PP11] Noting with deep regret that the goal of developed countries under the UNFCCC and the Paris Agreement to mobilize jointly USD 100 billion per year by 2020 in the context of meaningful mitigation actions and transparency on implementation has not yet been met, and further noting with concern that the current provision of climate finance for adaptation remains insufficient to respond to worsening climate change impacts in developing countries,

Decides, in accordance with Article 96 of the Charter of the United Nations, to request the International Court of Justice, pursuant to Article 65 of the Statute of the Court, to render an advisory opinion on the following question:

Having regard to the applicable treaties, including the Charter of the United Nations, the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, the United Nations Framework Convention on Climate Change, the Paris Agreement, and the United Nations Convention on the Law of the Sea, and rules of general international law, including the duty of due diligence, the rights recognized in the Universal Declaration of Human Rights, the principle of prevention of significant harm to the environment, and the duty to protect and preserve the marine environment,

(1) What are the obligations of States under the above-mentioned body of international law to ensure the protection of the climate system and other parts of the environment for present and future generations;

(2) What are the legal consequences under these obligations for States which, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:

(a) Small island developing States and other States which, due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?

(b) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?”


Background to draft Resolution

On 27 October, the Core Group countries leading on the drafting of the ICJ Resolution were announced on the floor of the UN General Assembly. Press Release here. (word version here). These 18 countries should be celebrated for drafting the Resolution above:

Vanuatu, Antigua & Barbuda, Costa Rica, Sierra Leone, Angola, Germany, Mozambique, Liechtenstein, Samoa, Federated States of Micronesia, Bangladesh, Morocco, Singapore, Uganda, New Zealand, Vietnam, Romania and Portugal... an extremely strong coalition of nations from the global North and South who are committed to protecting human rights from climate impacts!

Here is the Statement made on the floor of the UNGA on behalf of some of the Core Group group nations.

Understanding the Resolution

Here is a Resolution Elements Summary which outlines the general structure and justification of the two components: (a) preamble; and (b) operative question

Preambular paragraphs

The preamble of the Draft Resolution has five types of preambular paragraphs:

Sub-component (1): Reference to prior UNGA resolutions on the question of climate change. The UNGA has a track-record of discussing climate change under a recurrent agenda item, which has led to a number of resolutions that are recalled.

Sub-component (2): Reference to the main legal instruments and norms that are relevant to the question of climate change. These preambular paragraphs refer to some of the international legal instruments that are of particular relevance to the question of climate change, including naturally the UNFCCC and the Paris Agreement, but also human rights instruments or the UN Charter.

Sub-component (3): Reference to the scientific consensus on climate change. There is now a solid scientific consensus relating to the physical science basis and the impacts of climate change and the need for mitigation, most notably in IPCC reports, which are recalled for the benefit of the Court.

Sub-component (4): Reference to the seriousness of climate change, the strong limitations of current climate ambition and the specific effects on small island developing States and other vulnerable States. These paragraphs emphasise the pressing need to take immediate and bold action to curb emissions and adapt to climate change in the light of the massive catastrophic events suffered by countries and communities around the world, particularly certain States which are in the front line of such effects.

Sub-component (5): Reference to a range of key considerations (variable list) reflecting the interests of sponsoring States or civil society movements, including youth organisations, such as climate justice and human rights. This is a miscellaneous group of preambular paragraphs that refer to aspects of specific interest to some constituencies supporting the initiative.

Operative paragraphs

The operative part of the Draft Resolution has two main sub-components:

Sub-component (6): a chapeau paragraph referring to the international laws to be examined by the Court in its advisory opinion.

Sub-component (7): the question put to the Court, which reflects both an inter-State dimension and aspirations as regards human rights and intergenerational equity. In both cases, the question does not ask the Court to make law or to interfere with ongoing codification or progressive development processes but to examine existing law in the light of the scientific consensus on climate change.