Session 2: Using International law in climate change cases | Essex Court Chambers

Climate Change Law Conference 2023

Session 2: Using International law in climate change cases

Author: Grace Ferrier

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INTERSTATE PROCEEDINGS BEFORE INTERNATIONAL COURTS AND TRIBUNALS

Amy Sander considered the nature and effect of advisory opinions relating to climate change issued by international courts and tribunals.

There have been three advisory proceedings, all instituted between December 2022 and March 2023, where states have been able to make submissions on the questions posed:

1. The Advisory Opinion before the International Tribunal on the Law of the Sea requested by the recently established Commission of Small Island States in December 2022. The question submitted addressed the obligations of States Party of the United Nations Convention on the Law of the Sea with respect to climate change, ocean warming, sea level rise and ocean acidification.
2. The Advisory Opinion before the Inter-American Court of Human Rights requested by Chile and Colombia in January of this year. Chile and Columbia seek clarification of the scope of state obligations for responding to the climate emergency within the framework of international human rights law and particularly the American Convention on Human Rights. This request refers to a previous Advisory Opinion of the Inter-American Court Of Human Rights in 2017 and provides an example of how advisory opinions may inform one another.
3. The Advisory Opinion before the International Court of Justice requested by the UN General Assembly in its Resolution of 29 March 2023. The General Assembly seeks clarification of the obligations of states under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for states and for present and future generations. The key challenge here will be to ensure that focused and concrete submissions assist in the issuance of an opinion that is of genuine practical utility and which provides substantive hooks to meaningfully progress the global response to the climate change crisis.

INTERNATIONAL FORA

There are three relevant aspects of interstate activity:

1. Interstate dialogue before UN treaty bodies. Standing committees can play an important role in developing interstate dialogue on climate change. Standing committees are typically established by States Party to a convention and given a mandate to make comments or recommendations with respect to state obligations under that convention, including on climate change matters. In the course of drafting these comments and recommendations, states can make submissions. This provides a useful arena for dialogue.
2. The work of the International Law Commission (“ILC”). The ILC was established by the UN General Assembly to initiate studies and make recommendations with respect to the development of international law. One of its current topics concerns the legal implications of sea level rise, including, what are the consequences for statehood under international law should the territory and population of the state disappear, and what protection do persons directly affected by sea level rise enjoy under international law? During the course of the ILC’s work, the governments submit their comments. This serves as another useful example of how exchanges of information on climate change issues fit within the framework of international law.
3. Resolutions of the UN General Assembly. An instance from 28 July 2022 is the General Assembly Resolution 76/300 which recognised the right to a clean, healthy and sustainable environment as a human right, although notably certain states (UK and US) were careful to make clear that they did not accept that this has the status of a customary right. In addition, it was by a General Assembly Resolution that an advisory opinion was requested before the International Court of Justice.

Q: What is the benefit of legal opinions issued by courts and tribunals that are not binding on states?

A: The key answer is that the proof will be in the pudding. But at this stage, I can make three observations. First, simply the fact of state participation brings a certain focus within governments as to their international obligations and their current policies. Second, we all know advisory opinions are not legally binding but a well-reasoned advisory opinion can have legal effect in that it can (i) provide benchmark standards and meaningful tools in negotiation and decision-making; (ii) be of very practical utility in domestic law. Finally, meaningful cooperation between states in the form of information sharing and collaboration is central to meeting the challenge of climate change. “Non-contentious” activity may be better suited to that objective. As lawyers we sometimes gravitate to the sharp contours of contentious proceedings but actually that inevitably brings a hardening in strategic lines and perhaps in this context, at least in certain aspects, diplomacy and “non-contentious” dialogue is more helpful.

INVESTMENT ARBITRATION AND CLIMATE CHANGE

Alison Macdonald KC considered the ways in which investment arbitration may need to adapt to the climate crisis.

DEFINING THE CRISIS

International lawyers often talk about crises. The system of investment law in particular has been going through what many would term “a crisis of legitimacy” for about a decade or so. UNCTAD estimates that there are some 3000 bilateral investment treaties in existence along with core key multilateral investment protection instruments such as the Energy Charter Treaty. For some years, we have seen arguments from different voices in society to the effect that investment arbitration is a secretive process which puts the interests of big business above the interests of communities, the state and more latterly, the environment.

Climate change is a lightning rod for these concerns. The reality is that if the system of investment arbitration is perceived, rightly or wrongly, as tying states’ hands in relation to their abilities to tackle the climate emergency then it will cease to exist in the form that we know it.

The Energy Charter Treaty provides an illustration of the direction of travel. The ECT was conceived as energy-source neutral. In other words, it builds in no preference for fossil fuels or renewables. Yet, the biggest users

SDGs, Targets, and Indicators

1. Which SDGs are addressed or connected to the issues highlighted in the article?

• SDG 13: Climate Action
• SDG 16: Peace, Justice, and Strong Institutions

2. What specific targets under those SDGs can be identified based on the article’s content?

• SDG 13.2: Integrate climate change measures into national policies, strategies, and planning.
• SDG 13.3: Improve education, awareness-raising, and human and institutional capacity on climate change mitigation, adaptation, impact reduction, and early warning.
• SDG 16.3: Promote the rule of law at the national and international levels and ensure equal access to justice for all.

3. Are there any indicators mentioned or implied in the article that can be used to measure progress towards the identified targets?

• Indicator for SDG 13.2: Number of countries with climate change adaptation and mitigation strategies and plans.
• Indicator for SDG 13.3: Number of people who have been educated, trained, or sensitized on climate change mitigation, adaptation, impact reduction, and early warning.
• Indicator for SDG 16.3: Proportion of population who have access to justice and who feel safe and secure in their interactions with public institutions.

Table: SDGs, Targets, and Indicators

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