During negotiations on the Paris Agreement, some diplomats secured the addition of language specifying that the text “does not involve or provide the basis for any liability or compensation.” Flowing from this, the Swedish climate activist and advocate for School Strikes, Greta Thunberg, skipped the Cop27 climate Summit hosted in the Red Sea resort town of Sharm el-Sheikh in Egypt.
Greta criticised the UN’s 27th conference on climate as a forum for “greenwashing”. Instead, she launched a curated collection of essays at London’s Southbank Centre. The essays were written by a range of experts. Thunberg’s “The Climate Book” includes over one hundred essays from specialists, including economist Thomas Piketty who has written extensively on inequality, WHO chief Tedros Adhanom Ghebreyesus, and writer Naomi Klein.
Climate impacts function as risk multipliers for prevailing vulnerabilities. Risks include distress to livelihoods and to climate change-induced migration and dislocation. The UN’s Intergovernmental Panel on Climate Change (IPCC) underscores the urgency and enormity of the climate change catastrophe. Progress under the United Nations Framework Convention on Climate Change (UNFCCC) has been measured when compared to the emission reductions that are needed. Vanuatu, leading a “core group” of countries, has therefore initiated a movement to request the UN’s top court, the International Court of Justice (ICJ), to draft an Advisory Opinion on climate change. On 29 March 2023, the UN General Assembly passed the draft resolution by consensus.
The hope of the new UN resolution is that other instruments like the UN Convention on the Law of the Sea may offer a new pathway for liability and compensation. It is a fresh attempt at a judicial solution to a problem that has been tackled using only diplomacy over many years. The IPCC has cautioned world leaders that global average temperatures could reach 1.5 degrees Celsius above pre-industrial levels by 2030-2035. This caution underlines the need for achieving a common pathway to bring us closer to achieving shared goals by reducing emissions.
Vanuatu’s push for a resolution to advance climate justice aims to provide an advisory opinion on countries’ obligations for protecting the climate, and the legal consequences if they miscarry in meeting these obligations under international law. The UN resolution in March to seek an Advisory Opinion on climate change asks the ICJ to make lucid the “legal consequences” for states that have caused disruptions to the climate system, ecosystems and the environment. At the heart of this quest is the nexus of vulnerability and development. The ICJ has been specifically asked to weigh obligations to large water states, which are particularly vulnerable to climate change. This Advisory Opinion can take the ICJ about two years to be formulated.
But even before the Advisory Opinion is formulated by the UN’s ICJ, the European Court of Human Rights (ECHR) started to hear cases against the governments of France and Switzerland over alleged failings to oversee the environment. The cases were filed by a former French Mayor of Grande-Synthe, a suburb of Dunkirk in the North of France, and a group of citizens from Switzerland. It is unprecedented. In the case of the former French Mayor, the case was brought before the French Judiciary on his own behalf and on behalf of the town.
The claim was that climate change was raising the risk of flooding where they resided. France’s highest administrative court ruled against the government in 2021 but set aside the individual case of the Mayor, which he subsequently took to the ECHR. What is at stake is not trite. The consequences for the council’s member states, and potentially the rest of the world, are worrisome if the court accepts that climate failings have violated the human rights of individuals to a normal family life and life itself.
The Strasbourg-based ECHR is hearing for the very first-time arguments against governments related to climate policy. The ECHR must determine whether inadequate climate change action can constitute a breach of the European Convention on Human Rights. A parallel case was brought by a group of women who have taken the Swiss Government to the ECHR. They claim that the policy of the Swiss Government on Climate Change is violating their civic rights to life and health. They claim that by not taking the necessary steps to cut carbon emissions in line with global targets, the state has failed to meet its international obligations to protect their right to life.
It is the first time that the ECHR is hearing a Human Rights Case on the impact of Climate Change. This matter has reached this point after six years of unsuccessful attempts through the Swiss Court System. The pleadings before the ECHR state that climate change is putting the human rights, the lives, and the health of the women at greater risk. Included in the bundles of evidence before the Justices of the ECHR are the medical records of these senior women. The remedy they are seeking is for the ECHR to order the government of Switzerland to work harder at reducing greenhouse gas emissions. If the action succeeds, it would set a precedent for every one of the European’s court forty-six member states.