ICJ to present ‘advisory opinion’ on global environmental obligations as small island nations raise alarm: What does it mean?

So far, international commitments to protect the planet from the relentless onslaught of climate change are not subject to any legal binding. However, in consideration of the 62 detailed remarks submitted by nations and transnational organisations, the International Court of Justice (ICJ) will present an ‘advisory opinion’ which can potentially pave the way for the criminalisation of climate inaction in adherence to international law. 

In a statement issued on August 16, the ICJ mentioned that it will consider following arguments before delivering its official ruling on the issue on December 2, 2024: 

• Obligations of States under international law to ensure the protection of the climate system from anthropogenic emissions of greenhouse gases for present and future generations.

•  Legal consequences under these obligations for the States 

• States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are specially affected by or are particularly vulnerable to the adverse effects of climate change.

•  Peoples and individuals of the present and future generations affected by the adverse effects of climate change.

In the eyes of the law

Technically, ICJ’s advisory opinion will not entail any legal binding for the nations or organisations for violating their commitments to protect the environment. 

Despite this, experts and organisations working for environment protection await December 2 with bated breaths because the apex judicial authority’s ruling will provide the much needed clarification in the crusade against climate change. 

In an official note titled ‘Advisory Jurisdiction’, the ICJ explains that such rulings, although incomparable to the gravity of a verdict, offer clarification and contribute to the scope of international law. 

“In their own way, advisory opinions also contribute to the clarification and development of international law and thereby to the strengthening of peaceful relations between States,” the ICJ explains.

Highlighting the non-binding nature of such rulings, the ICJ added: “The requesting organ, agency or organisation remains free to decide, as it sees fit, what effect to give to these opinions.”

Island nations in an ocean of indifference

It is no surprise that island nations are at the greatest risk due to an adversely changing climate and the melting of the polar ice caps due to global warming. This is particularly true for those nations in the Pacific and the Atlantic Ocean which barely make headlines for their political or economic significance. 

But they do make news — when a volcano erupts or an earthquake shakes the very foundations of their geographical existence and that is when the international community is forced to listen to their longstanding woes of climate injustice. 

Many of the 62 signatories that urged the ICJ to consider their appeal for an advisory opinion on the accountability of climate commitments, are these island nations like the countries of Oceania and Micronesia in the Pacific as well as countries like Antigua and Barbuda, El Salvador, Grenada, Saint Lucia, Saint Vincent and the Grenadines in the Caribbean. 

It is to be noted that India is not amongst these 62 counties but its neighbours like Pakistan, Sri Lanka, and Bangladesh are. 

Previously, it was the Pacific nation of Tuvalu which is a part of Oceania that decided to approach the ICJ in a historic claim against Australia in the first such case in 2002.

Showing exemplary assertiveness to protect his island nation, Tuvaluan Prime Minister Koloa Talake, supported by Kiribati and the Maldives, took on the might of the United States and Australia and challenged them to appear in an international court of law. 

If climate change continues to devastate and inundate island nations as it has been, Tuvalu is expected to be completely submerged by the waters of the Pacific Ocean by 2050. 

Also, it is important to mention that in 1991, it was another Pacific Island nation of Vanuatu which championed the cause of island nations by taking up the first Chair of the Alliance of Small Island States (AOSIS). 

Its efforts culminated with the inclusion of insurance for the loss and damage due to climate change in the agenda of the United Nations Framework Convention on Climate Change (UNFCCC).