There has been widespread coverage of the legal proceedings taking place in the International Court of Justice (ICJ) regarding South Africa’s accusation of genocide against Israel. This has placed a spotlight on the ICJ at a time when it is considering another critical legal opinion – the advisory opinion requested by the UN General Assembly regarding the obligations states have under international law in respect of climate change. Ireland must submit a brief to the ICJ on this matter and ensure that the brief is ambitious and equitable in its approach to global legal obligations to mitigate and adapt to climate change.
The advisory opinion being considered by the ICJ will examine what obligations states have under international law to protect the global climate system, and what legal consequences there are for states where, through acts or omissions, significant harm is caused to the global climate system and other parts of the environment. Although the advisory opinion is non-binding, it will influence how states approach their response to climate change, as well as clarifying to what extent they can be held accountable in law for inadequate climate action.
Ireland, in its capacity as a State, has the authority to provide a written submission to the ICJ, and to present this submission before the court during oral proceedings. The ICJ can then consider its submission alongside those of other states and relevant international organisations before coming to a conclusion. Ireland voted in favour of referring this advisory opinion to the ICJ and has the ability to have its interests heard at the court’s proceedings, which can, in turn, shape the final outcome. Ireland therefore has a valuable opportunity to influence the next critical stage of climate change law and in turn how the global system responds to the climate emergency.
The Government must ensure, however, that any submission does not seek to stymie efforts to shape fair and equitable climate legal principles. In its previous submission to a similar European Court of Human Rights case on climate change, Ireland was accused by lawyers of “bordering on climate denial” due to its lacklustre support for new legal obligations and trivialisation of the devastation caused by climate change. Ireland is itself dramatically behind schedule on its climate commitments, and is facing a major lawsuit taken by Friends of the Irish Environment due to the government’s failure to include specific enough targets in its climate action plans. These failures in regard to law and policy must not be replicated before the world’s highest court.
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What the Government must instead advocate for at the ICJ is the establishment of substantive obligations for states to follow the best available climate science, and to ensure all possible efforts are made to remain within the 1.5 °C temperature guardrail laid out in the Paris Agreement. Substantive obligations mean that governments across the world would need to take concrete and ambitious action to address climate change, rather than just putting in place procedural safeguards which will do little on their own to reduce greenhouse gas emissions. The Government should also confirm its support for the legal principle of common but differentiated responsibilities, which places a greater burden on the Global North to mitigate climate change, given its greater responsibility for the climate emergency. Finally, Ireland should push for substantive obligations with regard to a just transition, meaning that efforts to address climate change must accommodate the needs of the most vulnerable and offer a fair pathway for those who may be economically affected by the switch to green energy. Climate justice and intergenerational equity (i.e. protection of the rights of future generations) must be a framing point at the ICJ when considering new legal obligations and Ireland’s submission can help determine such a response.
As a western economy with a long history of humanitarian work and support for sustainable development, Ireland can serve as a bridge between the competing demands of the developed and developing world on climate change – and push for an advisory opinion that is fair to vulnerable communities. The Government should take advantage of its expertise to provide a submission cognisant of the scale of the climate emergency and willing to be a voice for the vulnerable in demanding an inclusive climate response.
With submissions due by the end of this week, there is no time to lose. Ireland has just a few short weeks to step up to the mark and assume a position as a global leader in climate law.
Eoin Jackson is Irish Rapporteur for the Sabin Center for Climate Change Law’s Global Network of Peer Review Scholars on Climate Litigation
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