International courts and climate change

Subject : International Relations

Section : International Organizations

Concept :

A group of sixteen countries has launched an effort to tackle the issue of climate change at the United Nations.
The group is led by Vanuatu and seeks an advisory opinion from the International Court of Justice (ICJ) on climate change.
Notably, ICJ’s advisory opinions are non-binding. However, they carry a normative weight and clarify international laws.

Initiative by Vanuatu:

Small Island Developing States (SIDS) like Vanuatu are at relatively higher risk due to rising sea levels and increasing temperatures.
Vanuatu launched an initiative on September 2021 through UNGA to seek an advisory opinion from ICJ on the “legal obligations of all countries to prevent and redress the adverse effects of climate change”.
More than 100 countries have backed Vanuatu in its initiative.
The draft resolution seeks answers on the following aspects:
- International obligations of countries for the protection of the climate from anthropogenic emissions of greenhouse gases.
- It is suggested by some scholars that ICJ can also use general and customary international law (CIL) to fill the gaps in these treaties.
- Thus, it can use the ‘no harm’ principle (an important part of CIL) to highlight equivocal provisions of the Paris Agreement.
- As per the ‘no harm’ principle states are under an obligation that activities within their jurisdiction do not damage other countries.
- It would seek answers on the legal consequences for countries that have caused significant harm to the climate and the SIDS.
- The resolution further demands clarification on climate reparations, which is a long-standing demand in direction of climate justice.

Other measures for climate justice:

The Commission of Small Island States on Climate Change and International Law (including countries like Antigua, Barbuda, and Tuvalu) has also sought the advisory opinion of the International Tribunal for the Law of the Sea (ITLOS).
ITLOS is requested to determine the obligations of the countries for preventing, controlling, and reducing marine pollution under the United Nations Convention on the Law of the Sea (UNCLOS).

International Tribunal for the Law of the Sea

It is an intergovernmental organisation.
Established in 1996 under UNCLOS
UNCLOS was signed in 1982 (Came in force in 1994)
It established an international framework for law over “all ocean space, its uses and resources”
The Tribunal is composed of 21 independent members who are elected from among persons enjoying the highest reputation for fairness and integrity and of recognised competence in the field of the law of the sea.
The Tribunal has the power to settle disputes between party states.
Currently, there are 161 parties
Based in Hamburg, Germany.

For notes on International Court of Justice –

About ICJ:

The ICJ is the principal judicial organ of the United Nations (UN).
It was established in June 1945 by the Charter of the United Nations and began work in April 1946.
The court is the successor to the Permanent Court of International Justice (PCIJ), which was brought into being through, and by, the League of Nations.
After World War II, the League of Nations and PCIJ were replaced by the United Nations and ICJ respectively.
The PCIJ was formally dissolved in April 1946, and its last president, Judge José Gustavo Guerrero of El Salvador, became the first president of the ICJ.

Seat and role:

The ICJ is based at the Peace Palace in The Hague.
It is the only one of the six principal organs of the UN that is not located in New York City.
- (The other five organs are the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, and the Secretariat.)
All members of the UN are automatically parties to the ICJ statute, but this does not automatically give the ICJ jurisdiction over disputes involving them.
The ICJ gets jurisdiction only if both parties consent to it.
The judgment of the ICJ is final and technically binding on the parties to a case.
There is no provision of appeal; it can at the most, be subject to interpretation or, upon the discovery of a new fact, revision.
However, the ICJ has no way to ensure compliance of its orders, and its authority is derived from the willingness of countries to abide by them.

Judges of the court:

The ICJ has 15 judges who are elected to nine-year terms by the UN General Assembly and Security Council, which vote simultaneously but separately.
To be elected, a candidate must receive a majority of the votes in both bodies.
A third of the court is elected every three years.
The president and vice-president of the court are elected for three-year terms by secret ballot. Judges are eligible for re-election.
Four Indians have been members of the ICJ so far.
Justice Dalveer Bhandari, former judge of the Supreme Court, has been serving at the ICJ since 2012. Others being R S Pathak (1989-91), Nagendra Singh (1973-88), Sir Benegal Rau (1952-53).

India at the ICJ:

India has been a party to a case at the ICJ on six occasions, four of which have involved Pakistan.
They are:
- Right of Passage over Indian Territory (Portugal v. India, culminated 1960);
- Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan, culminated 1972);
- Trial of Pakistani Prisoners of War (Pakistan v. India, culminated 1973);
- Aerial Incident of 10 August 1999 (Pakistan v. India, culminated 2000);
- Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India, culminated 2016); and
- (Kulbhushan) Jadhav (India v. Pakistan, culminated 2019).

ICC VS ICJ

The International Court of Justice is a civil court that hears disputes between countries. The ICC is a criminal court that prosecutes individuals.