By Ian Fry, Ambassador for Climate Change and Environment, Government of Tuvalu

One of the foundational elements inscribed in the UN General Assembly (UNGA) resolution’s request to the International Court of Justice (ICJ) on climate change was the issue of the rights of future generations. The resolution specifically requests the ICJ to give an opinion on “the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations.”

The chapeau to the resolution, by mentioning a number of human rights treaties and specific climate change treaties, gave the Court a wide brief to consider general obligations to protect human beings (present and future) and nature from the impact of climate change. This allowed the Court to create a chapter in its Advisory Opinion (AO) on “other principles” which included equity and intergeneration equity.

The concept of equity and in particular intergenerational equity is not new. The Stockholm Declaration of 1972 stated that there is a “a solemn responsibility to protect and improve the environment for present and future generations” (Principle 1). This was later elaborated by the Rio Declaration of 1992, where Principle 3 states that “the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.”

It is clear that a concern about equity and intergenerational equity was foremost in the minds of the group of law students at the University of the South Pacific, Vanuatu campus, who created the drive for an ICJ AO. The students, known as Pacific Island Students Fighting Climate Change, had witnessed first-hand, the impacts of climate change and were deeply concerned about their future and the future of generations to come.

These concerns about intergenerational equity were carried forward to the UNGA. The representative of the Federated States of Micronesia (FSM), speaking on behalf of Pacific small island developing States (SIDS) at the UNGA, underscored key elements of the draft resolution – including climate justice and equity in the context of legal consequences for loss and damage caused by climate change.

In considering the principles of equity and intergenerational equity, the Court appeared to be directed by submissions from participants who referred to the UNFCCC’s Principles in Article 3, which state that “parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities.” 

Citing an earlier judgement, the Court affirmed that “[e]quity as a legal concept is a direct emanation of the idea of justice” and “the legal concept of equity is a general principle directly applicable as law.” It further noted that, as the Court stated in the North Sea Continental Shelf cases: “… it is not a question of applying equity simply as a matter of abstract justice, but of applying a rule of law which itself requires the application of equitable principles.” The Court appeared to give particular focus to the principle of “common but differentiated responsibilities and respective capabilities” (CBDR-RC) as key definer of equity. Here the Court emphasized the importance of historical responsibility and the need for industrialized countries to take higher mitigation ambition and to support developing countries in meeting the cost of adaptation and loss and damage. Nevertheless, equity is generally considered to have a broader context than just CBDR-RC. It is often seen as representing structural equalities based on race, ethnicity, gender, and socioeconomic status. Recognizing this fact, the Court stated that climate change may also impair the enjoyment of the rights of women, children, and Indigenous Peoples.

The Court concluded by saying that “[e]quity has the same function in the context of the obligations in respect of climate change, including those contained in the UNFCCC and the Paris Agreement.” This statement is important by the fact that the Court is saying that the principles of equity apply to climate change whether or not a nation is party to the UNFCCC or the Paris Agreement.

With respect to intergenerational equity, the Court stated that “intergenerational equity is an expression of the idea that present generations are trustees of humanity tasked with preserving dignified living conditions and transmitting them to future generations.” The Court stated that “[d]ue regard for the interests of future generations and the long-term implications of conduct are equitable considerations that need to be taken into account where States contemplate, decide on and implement policies and measures in fulfilment of their obligations under the relevant treaties and customary international law.” This is a clear indication from the Court that States must apply the principle of intergenerational equity as a matter of legal obligation whether under a treaty or customary international law.

The Court later emphasized the point that “the climate system, which is an integral and vitally important part of the environment… must be protected for present and future generations.”

The responsibility of States to protect the climate system for future generations flows through to an obligation to regulate activities of private actors as a matter of due diligence. This responsibility rests not only on States but also private actors. The fact that the Court has placed an onus on States to manage private actors that have legal personality within the State is a critical statement. No corporation is without obligation to protect the climate system in a manner that is equitable for present and future generations.

Without doubt, this unequivocable obligation of due diligence, as clarified by the Court, will lead to more climate change litigation. This may embolden youth groups and other stakeholders to take on corporate entities who have failed to meet their obligations of due diligence.

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This Guest Article is part of a project that seeks to raise awareness and build momentum and knowledge around the ICJ advisory opinion on obligations of States in respect of climate change and to promote a better understanding of the implications of the advisory opinion among sustainable development decision makers.