By Prof. (Dr.) Bharat H. Desai
I. The Context: 2024: Year of the Planetary Future
The year 2024 became the “Year of the Planetary Future” [Author: EPL 54 (1) 2024] with the United Nations hosting a high-profile Summit of the Future (New York; September 22-23, 2024) in succession to 2023 and 2022 that witnessed summits on the Sustainable Development Goals (New York; September 18-19, 2023) and the Stockholm+50 Conference (Stockholm; June 2-3, 2022). The outcomes of these global conferences of 2024, 2023 and 2022 showed the gravity of the smoldering planetary level crisis (here, 2024; here, 2024, here, 2023; here, 2023). The 2024 Summit of the Future was mandated by the UN General Assembly (UNGA) resolution 76/307 of September 8, 2022 (Modalities Resolution). Thus, the year 2024 will be cast in stone as the Year of the Planetary Future. (Author: EPL 54 (1) 2024).
II. Evidence of the Actual Working of International Law
The year also witnessed unfolding of an unprecedented saga of the International Law@Work in the International Court of Justice (ICJ; World Court), principal judicial organ of the UN. Over the years, International Law@Work has been the running theme, comprising a brief pictorial presentation or screening of an audio or video clip, to hammer on the actual working of International Law by this author at the beginning of each class in two School level celebrated MA (PISM) courses: (i) International Law of Peace (Monsoon Semester); and (ii) Legal Controls of International Conflicts (Winter Semester). Therefore, a flurry of cases (contentious and advisory) coming to the ICJ underscores one of the facets of the actual working of International Law. Apart from the Advisory Opinion 2022-2024 proceedings (vide UNGA resolution 77/247 of December 30, 2022) on Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem (July 19, 2024), the Court has been saddled with another Advisory Opinion sought by the UNGA (vide resolution 77/276 of March 29, 2023): Obligations of States in Relation to Climate Change. The marathon proceedings in the case witnessed Written Statements (91 States and IOs, till April 12, 2024), comments on the Written Statements (62 States and IOs, till August 15, 2024), Oral Presentations (96 States and 11 IOs, till December 13, 2024) and replies to specific questions put by the ICJ judges to the States and IOs (60 States and 5 IOs, till December 20, 2024). The UNGA request to the ICJ came in the backdrop of growing scientific predictions that even if greenhouse gas (GHG) emissions hit zero tomorrow, the climate chaos is likely to cost estimated $38 trillion (likely range of 19-59 trillion dollars) a year by 2050. The UNSG Guterres has described (June 02, 2022) climate change as one of the drivers of “triple planetary crises”.
III. UNGA Request for an Advisory Opinion
Significantly, the Advisory Opinion sought by the UNGA (sent by the UNSG to the ICJ President; April 12, 2023) was an indication of the crisis at work. The ICJ has been requested to clarify on two specific legal questions (vide UNGA resolution 77/276 of March 29, 2023):
“(a) What 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; (b) What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment…”
The above-mentioned two questions provide general framework for mapping the ‘obligations of states’. Still, as the history of ICJ Advisory Opinions shows, the Court can go beyond it to come out with an interpretation that was not originally contended before it. For instance, the finding of a caveat “very survival of a State would be at stake” in “extreme circumstance of self-defense” (Opinion, page 43, paragraph 105 (2) E) by the Court in its July 08, 1996 Advisory Opinion in the Legality of the Threat or Use of Nuclear Weapons is a case in point. However, as this author contended in an analysis of the 1996 Opinion (IJIL 37 (2) 1997 at 218), invocation of any unwarranted miasma “would be contrary to the law of the Charter and other corpus juris on the matter and, indeed to the totality of international law”.
Notwithstanding, existence of the three legal instruments (1992 UNFCCC, 1997 Kyoto Protocol; 2015 Paris Agreement) for global regulation of climate change and the annual Conference of Parties (COP) meetings (last one held in Baku COP29, November 11-24, 2024), most of the States and IOs have been looking for an authoritative exposition on the illusive “obligations of States” from the World Court. Having prepared the initial draft of the Written Statement for the Republic of India (Written Statement, March 21, 2024), this author is cognizant of the general view and desire of the sovereign states to stay with the chosen course that “obligations of States with respect to climate change are under the 1992 UNFCCC, and its instruments - the 1997 Kyoto Protocol, and the 2015 Paris Agreement.” Hence, most of the States expect the ICJ to “avoid devising new or additional obligations beyond what is already agreed under the existing climate change regime” [see: Indian Written Statement, March 21, 2024; conclusion, page 39, paragraph 106 (iii)].
IV. Marathon Written and Oral Proceedings
Article 65 (1) of the Statute of the ICJ enjoins upon the principal judicial organ of the UN to “to give an advisory opinion on any legal question”. This article needs to be read in the context of the main provision -- Article 96 (1) of the UN Charter – that provides: “The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question”. There is no obligation per se to give an opinion since the article contains the word “may give an advisory opinion”. In the Obligations of States in Respect of Climate Change, the Court undertook an unprecedented process of consultations (see above) including a sitting (November 26, 2024) with scientists of the Intergovernmental Panel on Climate Change (IPCC) “to enhance the Court’s understanding of the key scientific findings which the IPCC (set up vide the UNGA resolution 43/53 of December 08, 1988, paragraph 5) has delivered through its periodic assessment reports”. As per the practice before International Courts and Tribunals (Author: “ICTs as New Environmental Sentinels”, EPL 51 (1-2) 2021, 121-134), eminent International Law scholars mostly based at leading Universities are chosen by the States in their cases before the ICJ. In all such cases, it is the person preparing the Written Statement also makes Oral Presentation as a member of the State Delegation. This author was specially requested by the Indian Ministry of External Affairs (MEA) to prepare the Written Statement in consonance with the official Indian position on climate change. Accordingly, after due consultations and internal vetting, the Indian Written Statement was filed on March 21, 2024 by the Indian Ambassador (Reenat Sandhu) to The Netherlands.
This Article is an Original Contribution to the SIS Blog.
Prof. (Dr.) Bharat H. Desai is the former Chairperson and Professor of International Law at the Centre for International Legal Studies (SIS, JNU), who served as a member of the Official Indian Delegations to various multilateral negotiations (2002-2008), initiated and coordinated the futuristic knowledge initiatives for the SIS Faculty Wall of Honor (2023-24), the Inter-University Consortium: JNU; Jammu; Kashmir; Sikkim (2012-2020) and the Making SIS Visible (2008-2013) as well as contributes as the Editor-in-Chief of Environmental Policy and Law (IOS Press: Amsterdam).