DRAFT RESOLUTION (A/77/L.58)

1. Context

2. Background

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3. What does the resolution seek?

• The draft resolution (A/77/L.58) invoked article 96 of the UN Charter to ask the ICJ to deliberate on two questions.
• What are the obligations of states under international law to ensure the protection of the climate system for present and future generations?
• 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, particularly for Small Island Developing States (SIDS) and for people who are harmed?
• The resolution refers to several international protocols including the Paris Agreement (2015), the United Nations Convention on the Law of the Sea, and even the Universal Declaration of Human Rights.
• The entire process is expected to take about 18 months for the ICJ to deliberate and deliver its opinion.

4. Role of ICJ and its Jurisdiction

5. What is India's Opinion?

• India has thus far been cautiously silent about the move, although it is generally supportive of the need for climate justice, and holding the developed world accountable for global warming.
• It has referred the resolution to legal authorities in the country who will look into the implications and international ramifications of the ICJ opinion.
• India did not co-sponsor the draft resolution.
• India did not join the overwhelming majority of countries that co-sponsored the draft resolution.
• In the neighborhood, the list of co­sponsors included Bangladesh, Maldives, Nepal, Sri Lanka, and a number of island countries in the Indian Ocean Region (IOR).
• India is also watching how global powers like the U.S. and China respond to the resolution, as without their support, it will be hard to implement.
• During the discussion on the resolution, the U.S. representative voiced concerns about whether launching a judicial process was the best way to reach shared goals.
• Indian officials have also said that the ICJ process can only speak about climate change issues and problems broadly and that it cannot name or profile any one country in the process.
• Pointing to the Paris agreement as a landmark shift towards a “bottom­up” approach, where states themselves determine their ability to mitigate climate change, they also said any attempt to impose an opinion in a “top­down” manner would be resisted.
• Many other countries are likely to voice their opinion as the process gathers momentum in the months ahead.

6. What sparked the idea for the resolution?

• The original idea for taking the case for climate obligations to the highest legal court came from a group of 27 Pacific Island law students, who set up a campaign and brought it to the Pacific Islands Forum.
• Since 2019, the Vanuatu government, with the support of an 18­member “core group” of countries, has been promoting the idea of an Advisory Opinion from the ICJ.
• It prepared the draft resolution that was eventually co­sponsored by 132 countries at the UNGA and went through without a vote.
• While the U.S. was among a few countries that expressed some reservations, no country opposed the resolution.

7. Is the Advisory Opinion of ICJ binding?

• The ICJ is being asked for an advisory opinion, which by definition would not be legally binding as an ICJ judgment.
• However, its clarification of international environmental laws would make the process more streamlined, particularly as the COP (Conference of the Parties) process looks at various issues like climate finance, climate justice, and the most recently agreed “loss and damages” fund at the COP27 in Sharm El­Sheikh last year.
• The ICJ carries legal weight and moral authority”, said the sponsors of the resolution, and gave as examples advisory opinions given in the past on the Palestinian issue (Construction of the Wall) and nuclear threats that have been respected.

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