A round table discussion on the topic: «Advisory Opinion of the International Court of Justice on the Obligations of States in respect of Climate Change»
On March 26, the Laboratory of International Justice, together with the Laboratory for the Study of Public Interest Protection under Economic Sanctions, held a round table discussion on the topic «Advisory Opinion of the International Court of Justice on the Obligations of States in respect of Climate Change».
The event was moderated by Yury Rovnov, research fellow at the Laboratory of International Justice. He reminded the participants of the general context in which the Advisory Opinion of the International Court of Justice (ICJ) was issued, namely the ongoing campaign of the strategic climate litigation at the international level in recent years. Research assistant Darina Borzhovich then spoke about the main legal positions expressed by the ICJ.
Alexey Nikitin, researcher in Public International Law at Climate and Environment at the the International and Comparative Law Research Center, spoke about the interpretation by the ICJ of the obligations of States regarding the preparation and implementation of Nationally Determined Contributions (NDCs). The Court rejected the idea of the exclusive discretion of States in this matter and stated that the NDCs submitted by the parties to the Paris Agreement should be able to make a sufficient contribution to achieving the temperature goal of the Paris Agreement. The sufficiency of the contribution depends both on the historical contribution of the state to climate change, as well as on its level of development and other circumstances. Alexey Nikitin noted the general compatibility of the ICJ’s approach of the concept of «fair share» proposed in the academic literature for the global efforts.
Associate Professor of the RUDN University, Cand. Sc., Alexander Solntsev focused on the reflection of climate change issues in human rights law in the Advisory Opinion. Alexander Solntsev noted that despite the fact that the topic of human rights is addressed in 70% of the Advisory Opinion, due to the high standard of proof, no international court has yet recognized a violation of a key human right due to climate change — the right to life. The Advisory Opinion of the ICJ continues the process of crystallization of legal standards in this area and shows the further direction of development. Earlier, the Inter-American Court of Human Rights went further than the ICJ, recognizing the right to a healthy climate and declaring the nature of the jus cogens obligation not to cause irreversible damage to the climate and environment. The recognition of the legal personality of nature by the Inter-American Court has also become a landmark.
Daria Boklan, Dr.Sc., Professor at the Higher School of Economics, Head of the Laboratory for the Study of Public Interest Protection under Economic Sanctions, spoke about the evolutionary interpretation of international legal norms in the context of climate change. Taking as an example the norms of international trade law, which, according to the ICJ, may be relevant in the context of climate change, Daria Boklan drew attention to the fact that in the preamble of the Agreement establishing the World Trade Organization there is a reference to the Sustainable Development Goals (SDGs), one of which is the climate action (SDG Goal 13). Since earlier Panels and the WTO Appellate Body had already resorted to an evolutionary interpretation of the term «depleted natural resources», referring to living organisms (turtles), clean air, as well as forests and wetlands, the speaker wondered whether climate could also be attributed to exhaustible resources.
Alexey Ispolinov, Professor of the Russian Foreign Trade Academy of the Ministry of Economic Development of the Russian Federation, Dr.Sc., invited the participants to look at the institutional and systemic origins of the Advisory Opinion. In his opinion, these include the general coordination of «environmental justice» and the careful formulation of the issues that the General Assembly puts before the International Court of Justice; the need for judges to be re-elected in the General Assembly; the financial interest of both the initiators of strategic trials and the legal industry in initiating numerous climate proceedings. Alexey Ispolinov noted that the value of the Advisory Opinion for its initiators would ultimately be determined by the effectiveness of its application in proceedings with damage claims.
