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https://theconversation.com/on-climate-change-the-international-court-of-justice-faces-a-pivotal-choice-245189>
"What legal obligations do states have to fight climate change? Should
high-emitting countries be held responsible for the harm they’ve caused? And
should states safeguard the climate for future generations?
The international court of justice (ICJ) is considering similar questions to
these in hearings ahead of issuing an advisory opinion on the obligations of
states concerning climate change. Over the next two weeks, the court will hear
statements from 98 countries.
The ICJ is the principal judicial organ of the United Nations and is concerned
with states. It is not to be confused with the international criminal court
(ICC), which prosecutes individuals. Both courts are based in The Hague,
Netherlands.
Unlike court judgements, advisory opinions are not binding under international
law. Yet, they can be instruments of preventive diplomacy and peace.
Often, people associate courts with a solely reactive approach to disputes and
reparation of harms. For the ICJ this has meant, for instance, a 2018 order for
Nicaragua to compensate Costa Rica after it damaged rainforests and wetlands in
an unlawful incursion.
But courts can also play a critical role in preventing mass violations of human
rights and injustices in the first place. For the ICJ, this might involve
ruling that states have obligations to carry out due diligence before the
approval of a new mine or dam. To fully realise our human rights, the ICJ must
take this sort of preventive approach to climate change.
The ICJ faces a pivotal choice. It can either address climate change narrowly
and reactively, or it could examine state obligations from a broader
perspective.
That broader perspective might find that states are obliged to take full
stewardship of the environment for both present and future generations. This
would go beyond global climate change agreements.
The problem currently is that certain state actions (and inactions) may be
considered sufficient under the UN’s Paris agreement, but that does not mean
those states are complying with their duties to tackle climate change under
international human rights law. Climate change and ecosystem degradation can,
of course, violate a wide range of human rights. If the ICJ were to legally
clarify that states do have climate obligations that go beyond the Paris
agreement, that would represent a significant step forward in international
law.
There are some precedents. For instance, the international tribunal for law of
the sea (Itlos), through a recent advisory opinion of its own, has already
recognised that greenhouse gas emissions are a form of marine pollution.
States, it says, have specific legal obligations to address such pollution
under the UN convention on the law of the sea.
The ICJ would also be building on the pioneering ideas of one of its former
judges, Christopher Weeramantry of Sri Lanka. He argued that humanity is not in
a position of dominance but is a trustee of the environment and that this
carries weight as international customary norm."
Cheers,
*** Xanni ***
--
mailto:xanni@xanadu.net Andrew Pam
http://xanadu.com.au/ Chief Scientist, Xanadu
https://glasswings.com.au/ Partner, Glass Wings
https://sericyb.com.au/ Manager, Serious Cybernetics
