Hi,

I am very pleased to bring you an important analysis on the recent ICJ Advisory Opinion on the Obligations of States in respect of Climate Change.

Legal scholars Margaretha Wewerinke-Singh and Jorge E. Viñuales, have written this analysis for our readers, examining the Opinion from the perspective of global health law. The authors worked on the legal strategy on bringing climate change before the International Court of Justice (ICJ), spearheaded by law students from the Pacific.

In their essay, they discuss “relevant conduct”; how the Court interprets human rights; the right to health; the right to a clean, healthy sustainable environment; and how by elevating the scientific findings of the IPCC and the WHO, it recognizes the “legal actionability” in an acutely hostile political climate of manipulation and disinformation.

We hope you find this timely and insightful. We are deeply grateful to the contributors for their time and expertise.

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Priti

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I. GUEST ESSAY

The International Court of Justice (ICJ) Advisory Opinion on Climate Change and Global Health Law

By Margaretha Wewerinke-Singh*/ Jorge E. Viñuales**

*Wewerinke-Singh is Associate Professor of Sustainability Law at the University of Amsterdam, an Adjunct Professor of Law at The University of Fiji and a Member of the Permanent Court of Arbitration. She served as lead counsel for Vanuatu in these proceedings, together with Julian Aguon at Blue Ocean Law. Contact email: m.j.wewerinke@uva.nl

**Viñuales is the Harold Samuel Professor of Law and Environmental Policy at the University of Cambridge and a Professor of International Law at LUISS, Rome. He acted in these proceedings as external counsel for Vanuatu. The views expressed in this post are in a strictly academic capacity. Contact email: jev32@cam.ac.uk

For the last six years, together with a handful of colleagues and friends from around the world, we have worked with the Government of Vanuatu to develop and implement a legal strategy to turn the aspiration of a group of students from the Pacific into a reality, bringing climate change before the International Court of Justice (ICJ). The road has been filled with hope, encouragement and support, but also alas with much scepticism, sometimes even sarcasm, and unrelenting pushback. Yet, on 23 July of this year, the aspiration turned into a reality. The Court rendered a far-reaching Advisory Opinion on Obligations of States in respect of Climate Change, and it did so unanimously.

What was under legal scrutiny, as the Court expressly recognized (para 94), was a certain conduct, namely the acts and omissions that are the cause of climate change. The Court was asked to identify the obligations most directly governing this conduct and the legal consequences under such obligations. Along the way, the Court took the time to engage with science, characterize – even expand – the ‘relevant conduct’, address a wide body of obligations of treaty and customary international law, well beyond the climate change treaties, and formulate a legal theory of responsibility for climate harm that rests on the International Law Commission’s Draft Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA).

In this brief post, we analyze the Opinion from the perspective of global health law and policy, broadly understood to encompass both regulatory approaches (public health laws and policies, including mitigation, adaptation, disaster management, etc.) and human rights approaches (specifically the right to health but also other human rights involving a health dimension).