Using the justice system to fight climate change

On March 29, with a favorable vote from 121 countries, the General Assembly of the United Nations (UN) approved a resolution for the International Court of Justice in The Hague, the Netherlands, to issue an advisory opinion on climate change.

The vote was the result of 4 years of negotiations promoted by the small country of Vanuatu, an island facing dramatic damage from the impact of climate change. The International Court of Justice will be asked two specific questions to clarify the legal responsibility of States in matters of climate change.

The first question is: “What are the obligations of States under international law to guarantee the protection of the climate system and other elements of the environment against anthropogenic emissions of greenhouse gases in favor of States and of present and future generations? The second question is: “What are the legal consequences derived from these obligations for States that, by their acts and omissions, have caused significant damage to the climate and other elements of the environment, with respect to other countries?”, the emphasis of this question is the situation of small island states and other highly vulnerable communities.

ACTION DEFINED
When the International Court of Justice issues its advisory opinion on the issue, clear lines of action will be defined so that the countries most affected by the climate crisis can file claims against the responsible countries.

The action by the UN represents a relevant gesture to position a new angle to combat climate change. The trend, of using national or international courts to make different States comply with their climate obligations, is becoming a strategy of paramount importance.

According to the United Nations Environment Program (UNEP), in 2021 there were at least 1,550 legal proceedings in 38 countries representing climate justice claims around the world.

Among the most emblematic cases was the ruling of a Dutch court against the oil company Shell, which resulted in a sentence that forces the company to reduce 45% of its greenhouse gas emissions.

In Switzerland, at the end of March of this year, a group of older adults sued the Swiss government before the European Court of Human Rights, so that Switzerland would act decisively on climate matters and comply with its environmental obligations. The older adults claimed that the little action of the Swiss government has increased heat waves in that country, which endangers predominantly the older adult population.

On February 6, 2020, the Inter-American Court of Human Rights issued the judgment in the “Case of Indigenous Communities Members of the Lhaka Honhat Association (Our Land) Vs. Argentina.” This is formally the first international case in this region, in which the human right to a healthy environment is applied as part of the obligations that States must guarantee.

Thus, when referring to this right, the Inter-American Court said the following :

This Court has already stated that the right to a healthy environment “should be considered included among the rights […] protected by Article 26 of the American Convention,” given the obligation of States to achieve the “integral development” of their peoples. , which arises from articles 30, 31, 33, and 34 of the Charter.”