UN climate resolution a remarkable feat

A climate justice win of epic proportions was announced last week when the UN’s General Assembly passed a resolution asking the world's top court to define the legal obligations of countries to protect the climate system.

The International Court of Justice (ICJ) will now work to determine states' legal obligations in preventing climate harm and the legal consequences of failure to do so. Countries, including Aotearoa New Zealand, will submit input over the next year.

It could take up to 18 months before the world court issues its advisory opinion. The opinion will be a legal landmark, say New Zealand Centre for Environmental Law (NZCEL) director Caroline Foster and deputy director Prue Taylor.

Although non-binding, the advisory opinion will stand as an authoritative statement of countries’ international legal commitments to one another, their common interests, and the interests of future generations.

“Centre members look forward to engaging with the government and civil society on written and oral submissions to the Court to ensure the advisory opinion sets clear expectations for states to act urgently to stop the unfolding climate crisis,” says Taylor, who teaches environmental and planning law at the School of Architecture and Planning.

“The resolution is remarkable because it was passed by consensus and retained clearly worded questions enabling the Court to clarify obligations beyond those in the Paris Agreement. This allows consideration of legal developments in areas including human rights and future generational justice. The questions clearly reflect the urgent concerns of the world’s most vulnerable states and people."

New Zealand’s government stood with the Pacific on Vanuatu’s resolution and we were one of the initial 18 champion nations that helped secure consensus support, says Taylor.

“We should not forget that it was a group of young Pacific Island law students who initiated this resolution. It was the Government of Vanuatu that listened to and supported them. Pacific Island nations and their peoples have emerged as leaders of climate action.”

Faculty of Law academic Dylan Asafo, who is from the villages of Salani, Satalo, Siumu, Moata’a, and Leufisa in Samoa says that although the resolution is a step forward, Indigenous peoples across the world have good reason to be sceptical about whether the ICJ opinion will be bold enough to hold wealthy, high-emitting states accountable for inaction against climate change.

Asafo notes that several ICJ opinions and decisions in the past have failed to result in justice for marginalised peoples, “reflecting the reality that international law has yet to prove itself capable of dismantling the systems of colonialism and capitalism that drive the climate crisis.

“Nevertheless, the resolution is a testament to the leadership of Pacific peoples, particularly Pacific youth, when it comes to climate justice. Indigenous peoples across the world continue to demonstrate they are best placed to take the lead in addressing the climate crisis.”

While the New Zealand government supported the resolution, Asafo says it is important to note that the government has demonstrated time and time again that it’s unwilling to take such bold climate action itself, particularly without pressure and leadership from Pacific Island nations like Vanuatu.

“It is critical to keep pressure on the government to meaningfully fulfil any obligations the ICJ advisory opinion articulates, especially because the government today continues to ignore expert recommendations it regularly receives.”

Law professor and NZ Centre for Environmental Law director Caroline Foster says the specialist research centre, hosted by Auckland Law School, will be continuing research on the legal issues the ICJ will address.

“The General Assembly’s aim is to obtain a clear legal opinion on the international obligations of States to protect the climate system and on the legal consequences for harm when they do not,” she says. “The New Zealand Centre for Environmental Law will continue to engage in and work to support the process and promote debate on the core issues.

“It’s heartening to see this important initiative come to fruition. Climate change is the challenge of our times, and the views of the International Court of Justice will make a major contribution to clarifying states’ obligations to protect the climate system.”

Meanwhile, advisory opinions on climate change are also being sought from the International Tribunal for the Law of the Sea and the Inter-American Court of Human Rights, say Foster and Taylor. In addition, three human rights climate change cases are being considered by the European Court of Human Rights this year.

The New Zealand Centre for Environmental Law is co-hosting a climate litigation conference in May with the Legal Research Foundation