Credits: Glen Bledsoe, from Flickr.com

By Martina Olivera

This post is the first part of a two-part discussion on state obligations regarding adaptation to climate change and the International Court of Justice. 

Introduction

In March 2023, the UN General Assembly (UNGA) adopted by consensus a resolution, presented by Vanuatu and co-sponsored by 132 states, that requested the International Court of Justice (ICJ) to give its opinion on the state’s legal obligations regarding climate change. The Court was asked to interpret which 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’, as well as the legal consequences if, by act or omission, the states fail to comply with those obligations.

The ICJ has a significant opportunity to acknowledge the inseparable link between climate change and human rights when analysing the obligations of states regarding adaptation measures and to incorporate various international, regional, and national sources in its argumentation, as will be discussed in the following sections.

Climate Change Through International Law

Human activities, mainly through the emission of greenhouse gases (GHG), have caused the rise of the global temperature, affecting the weather and causing extreme climate events and creating a threat that requires urgent action. As a consequence, International Climate Change Law (ICCL) was developed to deal with anthropogenic climate change by the agreement between states on, among other instruments, the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol and the Paris Agreement (PA).

States are expected to take different measures to address climate change mainly through mitigation -activities to limit the emission or reduce the levels of GHG in the atmosphere- and adaptation –‘reducing climate risks and vulnerability mostly via adjustment of existing systems’-. Adaptation measures depend on the states’ adaptive capacity and good governance and should consider the vulnerability of populations to climate change. Those measures can range from simple actions like planting trees to ‘building defences to protect against sea-level rise and improving the quality of road surfaces to withstand hotter temperatures’ (see real-life examples).

Those two types of measures are taken towards the goal agreed upon by states in the Paris Agreement: to hold ‘the increase in the global average temperature to well below 2 °C above pre-industrial levels’ and to pursue ‘efforts to limit the temperature increase to 1.5 °C above pre-industrial levels’ (Article 2 para. 1 lit. a, PA).

This blog post will focus on adaptation measures because the attention has been mainly on mitigation measures for the past few years. Even some of the presentations done by NGOs to the ICJ were only on mitigation measures (here, here).

Climate Change and Human Rights

The ICCL does not exist in a vacuum. States are also legally bound by other treaties that impose obligations, like the treaties on International Human Rights Law (IHRL). That is why the UNGA asked the ICJ to interpret the state’s obligations considering: the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR). By becoming parties to those treaties, states assume three types of obligations towards individuals: to respect them, meaning that states should not interfere with their rights, to protect them against abuses by third parties, and to fulfil their rights by taking positive actions that facilitate those rights.

The link between climate change and human rights has been recognised in the preamble of the PA (para. 11) but also by the UN Human Rights Council, the International Tribunal for the Law of the Sea (ITLOS) in their recent advisory opinion (para. 66) and the Inter-American Court of Human Rights (IACtHR), among others (here, here, here, here).

An illustration of this relationship can be exemplified as follows. Human Rights Watch has recently reported on the situation of the Guna Indigenous community that has lived for 100 years in the Crab Islands in Panama; due to continuous floods, they are forced to relocate, negatively impacting their right to an adequate standard of living (Article 11 ICESCR), among other rights.

It is imperative that the ICJ integrate in the understanding of adaptation measures the states’ obligations arising from IHRL. Hence, the next two sections will focus on creating a global stocktake (meaning ‘taking inventory’ in ICCL) of international (part 1), regional and national (part 2) cases due to the state’s failure to implement adaptation measures from a human rights perspective.

 ‘Global Stocktake’: International Level

The ICJ can -and probably will- use its relevant case law, especially on International Environmental Law, to answer the questions presented by the UNGA. However, the Court can also draw upon decisions of other jurisdictions to build a more comprehensive answer (Article 38.1.d ICJ Statute). In fact, the ICJ has already done so, for instance, in the advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory of 2004. The ICJ argued that the jurisdiction of a state might be exercised outside their national territory by citing three cases of the Human Rights Committee (para. 109). While the ICJ did not explain under which section of Article 38 of the ICJ Statute this source belonged, the Court did find it enough to cite those three decisions as constituting a ‘constant practice’. In this sense, it can be argued that, even though the Human Rights Committee is -unlike the ICJ- a quasi-judicial forum, their decisions are authoritative enough to infer a constant practice.

Regarding climate change, the last 5 years have seen a huge rise in climate change litigation (here, here, here, here, here, here). This, in turn, might help the Court to identify the state’s obligations on adaptation to climate change from a human rights perspective.

At the international level, a group of Indigenous islanders from Australia presented a claim before the UN Human Rights Committee (HRC) claiming that severe flooding, heavy rainfalls and storms caused by climate change had adversely impacted their culture, lifestyle and traditions. The applicants claimed that Australia should have adapted the islands by upgrading the seawalls. The HRC found that Australia failed to act promptly on the construction of sea walls, although the communities had asked for it for decades (paras. 8.12 and 8.14). Hence, there was a violation of their rights to enjoy their culture (Article 27 ICCPR) and be free from arbitrary interference with their private life, family and home (Article 17 ICCPR). However, the decision was criticised (here, here), among other reasons, because of the restrictive approach adopted to the alleged violation of the right to life. For the majority of the members of the Committee there was no ‘real and foreseeable risk’, only ‘feelings of insecurity’ from the islanders (paras. 8.6-8.8).

The Billy and Others v. Australia case shows that states have positive obligations arising from human rights to take timely and adequate adaptation measures when people under their jurisdiction face negative impacts due to climate change, especially when those impacts are on Indigenous communities, one of the most vulnerable groups to climate change (para. 2.1). Without a human rights perspective, the decision might not have considered the spiritual connection of the islanders with their traditional lands and surrounding ecosystems. This is a crucial point that the ICJ should add to their reasoning by acknowledging a human rights approach to the state obligations arising from the intersection between IHRL treaties and the ICCL treaties.

Another UN body, the Committee on the Rights of the Child (CRC) received a communication from sixteen children against five states for perpetuating climate change. The Sacchi and others v Argentina and others case was declared inadmissible by the CRC, due to the failure of the victims to exhaust domestic remedies in each of the states. However, the case also showed that while climate change is a global issue, each state ‘still carry individual responsibility for their own acts or omissions in relation to climate change and their contribution to it’ (para. 10.8).

Part 2 will be published shortly.

Bio:

Martina Olivera is an Argentinian Human Rights Lawyer, who recently finalised an LL.M. in Public International Law (Human Rights track) at Utrecht University (Cum Laude).