On November 29, judges of the International Court of Justice met with climate change scientists in anticipation of its advisory opinion on the Obligations of States in respect of Climate Change. Hearings for the opinion will begin on Monday, December 2, with over 100 countries and organizations presenting in 30 minute increments over two weeks. At the request of the United Nations General Assembly, the ICJ will determine the existing financial liability of countries for their contribution to climate change and what actions countries must take to prevent climate change. The meeting with scientists indicates the Court may be looking beyond black letter legal obligations found in existing treaties.
On March 29, 2023, at the request of Vanuatu, the UNGA asked the ICJ to issue an advisory opinion on the legal obligations of countries in preventing climate change. The opinion, while non-binding, will give an indicator of how the Court may interpret future climate related litigation and guide future legislative development.
The UNGA asked a two questions:
“What are 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”?
“What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to: (i) States, including, in particular, small island developing 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? (ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?”
The UN sent an initial package of relevant laws and treaties. The Court determined that members states and international organizations should also given the opportunity to weigh in on their legal arguments and opinions through written statements. At the conclusion of the timeline for written statements and responses, the court set oral arguments to begin on December 2.
On November 26, the Court met with scientists from the United Nation’s Intergovernmental Panel on Climate Change to “enhance the Court’s understanding of the key scientific findings which the IPCC has delivered through its periodic assessment reports covering the scientific basis, impacts and future risks of climate change, and options for adaptation and mitigation.”
In a press release, the ICJ listed the following participants. “Led by IPCC Chair Jim Skea, the IPCC scientists involved in this initiative included Robert Vautard (AR7 Working Group I Co-Chair), Nana Ama Browne Klutse (AR7 Working Group I Vice- Chair), Valérie Masson-Delmotte (AR6 Working Group I Co-Chair), Friederike Otto (AR6 Working Group I, Chapter 11 Lead Author), Tannecia Stephenson (AR6 Working Group I, Chapter 10 Lead Author), Aditi Mukherji (AR6 Working Group II, Chapter 4 Coordinating Lead Author), Alaa Al Khourdajie (AR6 Working Group III Contributing Author) and William Lamb (AR6 Working Group III Contributing Author).”
This meeting indicates that the ICJ may follow the lead of the European Court of Human Rights. In an opinion relating to the obligations of Switzerland to prevent climate change, the ECtHR considered presented science in addition to the written text. The opinion, released in may 2024, fount that protections from the impacts of climate change are a human right under the European Convention on Human Rights.
The proceedings around the ICJ opinion have thus far been secretive. Filings made by the states and interested parties have yet to be released to the public. Further, the Court instructed parties to not share their written statements. The first opportunity the public will have to hear how their country is arguing in the case will be at the public hearings.
The public hearings will occur at the International Court of Justice in The Hague, Netherlands. On October 15, parties participating in oral arguments were sent a schedule. That schedule was made public on November 8.
The hearings will open on Monday, December 2nd at 10am CEST. At 10:15, Vanuatu and Melanesian Spearhead Group will be given an hour to, in essence, make an opening argument. All other parties are given 30 minutes to make their arguments. The United States will present on December 4 at 4:45 pm CEST.
While the hearings are open to the public, due to the large number of participating parties and the small size of the Great Hall of Justice at the Peace Palace in The Hague, seating will be limited. Only five seats will be made available to the public on a first come, first serve basis. The hearings will be streamed on the Court’s website.
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