ICJ Advisory Opinion on climate change: implications for New Zealand

Yesterday, the Climate Change and Business Conference kicked off in Auckland. A key item on the agenda was discussion of the International Court of Justice's (ICJ) long-awaited Advisory Opinion on the Obligations of States in respect of Climate Change (Advisory Opinion), released in July of this year.¹ The discussion at the conference included a first-hand look at the intention behind the Advisory Opinion through a presentation from Cynthia Houniuhi, a former student and resident of the Soloman Islands who was at the forefront of initiating the process that led to the Advisory Opinion. The presentation was a powerful reminder of the potential influence of the Advisory Opinion here in New Zealand.

While the Advisory Opinion is not legally "binding" on States, it nevertheless is a significant development that could have broader relevance to the development of the law relating to climate change in New Zealand.

In particular, the Court of 15 judges unanimously adopted the Advisory Opinion and affirmed for the first time that:

• all States have binding legal obligations under international law to protect the climate system from human-induced greenhouse gas (GHG) emissions; and
• a breach of these obligations is an internationally wrongful act.

Given our domestic courts regularly refer to international law in interpreting domestic legislation and developing the common law, it can be expected that the Advisory Opinion will feature in future judicial decisions relating to climate change, particularly in the context of any challenges to Government decision-making. Given the Advisory Opinion sets out a comprehensive assessment of the scope and content of States' obligations in relation to climate change, it is also likely to carry a level of political and moral weight, which has the potential to influence future government decision-making on climate change.

In this update, we set out further details on the key findings of the Advisory Opinion and possible implications for New Zealand.

What was the ICJ asked to consider? 

The ICJ was asked to provide an advisory opinion on the obligations of States under international law to protect the climate system and broader environment from anthropogenic GHG emissions.² In addition, the ICJ was asked to consider the legal consequences where a State breaches those obligations by causing harm to the climate system and broader environment, with respect to vulnerable States (e.g. small island developing States) and peoples (present and future) adversely affected by climate change.

What did the ICJ find? 

A large part of the Advisory Opinion focussed on analysing States' climate change obligations, particularly under the United Nations Framework Convention on Climate Change, the Kyoto Protocol and the Paris Agreement (together, the "Climate Treaties"). At a high level, the ICJ's conclusions most relevantly included that:

• Under the Climate Treaties, countries are not only required to prepare, communicate and maintain successive and progressive nationally determined contributions (NDCs), but are also under a binding obligation to make best efforts to achieve the objectives of those NDCs.  While the Advisory Opinion does not alter the binding obligations in the Climate Treaties, it does reinforce that NDCs must represent a State's "highest possible ambition" to achieve the 1.5°C temperature goal.³ In other words, NDCs are not entirely "self-defined".
• Customary international law imposes binding obligations on States to prevent significant harm to the environment, including by private actors, and to co-operate for the protection of the environment. This includes an obligation on States to act with due diligence and use all means available to them to prevent activities (whether public or private) from causing significant harm to the international climate system.
• States also have additional obligations outside of the Climate Treaties that require action on climate change, including under the United Nations Convention on the Law of the Sea and international human rights law. This includes, for example, an obligation under international human rights law to take measures to protect the climate system and other parts of the environment, including through mitigation and adaptation and by regulating the activities of private actors.⁴ The ICJ also noted that the adverse effects of climate change may "significantly impair" the enjoyment of certain human rights (for example, the right to life and the right to health) and also concluded that the human right to a clean, healthy and stable environment is "essential" for the enjoyment of other human rights.⁵

The Court found that States may be liable under customary international law for breaches of the obligations referred to above. A finding of liability would require an "attribution" exercise to be undertaken, which would involve considering both whether a given climatic event or trend can be attributed to human-induced climate change, and also to what extent damage caused by climate change be attributed to the State in question. Considerable uncertainty remains as to whether and how liability might be determined and enforced in practice.

What are the implications for New Zealand? 

While the Advisory Opinion does not legally bind the New Zealand Government, it may nevertheless influence our domestic approach to climate change issues. In particular, the Advisory Opinion is an authoritative opinion from the principal judicial organ of the United Nations and accordingly holds a level of political and moral weight, which may influence New Zealand's domestic policy response going forward.

For example, while the Advisory Opinion does not directly prohibit new fossil fuels, the ICJ found that a failure by a State to adequately regulate fossil fuel production, subsidies and/or exploration licences, may breach international law. States may also have legal responsibility for consequent damage, including emissions caused by private actors under its jurisdiction.⁶ New Zealand has recently overturned the previous ban on granting new offshore oil and gas exploration permits to promote energy security, and there is scope for the Advisory Opinion to influence discussions around how New Zealand should balance the "energy trilemma" (of security, affordability and sustainability).

In addition, and perhaps more significantly, we expect that the New Zealand courts may consider the ICJ opinion in future judicial reasoning in cases concerning climate change. It is common for New Zealand judges to have regard to international law both in interpreting domestic legislation and in developing the common law. One area where consideration of the Advisory Opinion may be particularly relevant is in any judicial review of government action or inaction in relation to climate change, given the focus of the Advisory Opinion is on the obligations of States in relation to climate change.

This content is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter, please contact a Russell McVeagh partner/solicitor.