Toward A More Open ICJ Advisory Process
Steve Charnovitz
2 April 2023
In a recent action, the United Nations General Assembly (A/77/L.58) requested an Advisory Opinion of the International Court of Justice (ICJ) on the obligation of States in respect of climate change. This is an important issue for many international organizations including the World Trade Organization (WTO) which, in recent years, has aspired to get more engaged in actively addressing climate change challenges. I hope that the ICJ (under its Art. 66.2 authority) will be open to inviting statements from intergovernmental organizations.
Although the Permanent Court of International Justice (PCIJ), in its earliest years, was not embarrassed about providing input opportunities for international nongovernmental organizations (NGOs), the ICJ has not been as inclusive in its Advisory Opinion proceedings. Of course, the vast expansion of international NGOs over the past century makes the question of nonstate participation much more difficult than it was in 1922 when the International Federation of Trades Unions delivered a statement to the PCIJ during its proceeding regarding the legal competence of the International Labour Organization (ILO).
Back in 2004, the ICJ did take an important step toward more inclusivity through its Practice Direction XII which provides a process for handling written statements (in Advisory Opinion cases) from international NGOs. Under this process, "Written statements and/or documents submitted by international non-governmental organizations will be placed in a designated location in the Peace Palace" so that States and intergovernmental organizations presenting written and oral statements can more easily refer to them. Such NGO documents, however, are "not to be considered as part of the case file."
While it may be too progressive to provide for such NGO statements to be included in the case file, the ICJ could improve upon the accessibility to such NGO statements by the international community by making such documents readily available through the internet. One can anticipate that international business NGOs might want to submit statements in the same manner as international environmental NGOs and individual organizations may wish to look at the statements of other organizations.
In the most recent ICJ Advisory proceeding touching on the environment (the Nuclear Weapons case 28 years ago), there were about 28 States that submitted a written statement. For the climate change proceeding, many more States would likely want to participate and might want to draw upon the analytical contributions from economic and social actors.
Although an advisory opinion about climate change will be looking at the past as well as the future, the interests of future generations are paramount. While states and international organizations can represent future generations, a greater diversity of views, on the key legal questions, would help the Court render a better decision.
