Country Watch
ibiong quoted the UN Framework Convention on Climate Change (UNFCCC), which states, “The responsibilities of States under international law to ensure that activities carried out under their ju- risdiction or control that emit greenhouse gases do not damage other States.”
The UN General Assembly is one of several orga- nizations capable of requesting such an advisory opinion from the ICJ. This is significant because the ICJ has issued fewer than ten advisory opin- ions in the last 25 years. Additionally, contrary to judgments, the ICJ’s advisory opinions have no binding effect, however, do carry a tremendous deal of legal authority and weight and contribute to the development of international law.
16
Toribiong stated, “[t]he case should be clear. The ICJ has already confirmed that customary inter- national law obliges states to ensure that activi- ties within their jurisdiction and control respect the environment of other States.” The customary principle of trans-boundary harm that Toribiong
referred to was recently reaffirmed by the ICJ in the Pulp Mills case when the ICJ stated, “A State is thus obliged to use all the means at its dis- posal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State.” Application of this principle to GHG emissions could potentially serve as an international legal mechanism to help slow and perhaps abate future environmental damage. In Palau’s case, such a mechanism could be used to help slow the rising sea level and reverse coral reef decay.
In addition to customary law provisions that might be used to combat climate change, Toribiong also cited a treaty provision that creates various State responsibilities to abate damage caused by pollu- tion. Toribiong cited Article 194(2) of the UN Con- vention on the Law of the Sea, noting its mandate that “States shall take all measures necessary to ensure that activities under their jurisdiction or control do not spread and do not cause damage by pollution to other States.”
Study in London This Summer May 22–June 13, 2012
Earn four credits toward your J.D. by taking two classes in London this summer. New York Law School’s expert faculty, supplemented by academics and lawyers from abroad, will cover a variety of subjects from an international perspective, such as:
• International Corporate and Financial Services Law • International Intellectual Property • Law of the European Union • Real Estate Transactions in a Global Marketplace
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www.nyls.edu/london.
If Palau’s proposal can garner a majority of the UN General Assembly’s favor, and the ICJ were to issue an advisory opinion, the ICJ would need to answer some difficult legal questions. First and foremost, does the principle of trans-bound- ary environmental harm apply to GHG emissions and climate change? If so, how will liability be ap- portioned, and what form of redress will be avail- able? Before any of these questions are to be addressed, the General Assembly must first re- solve, by simple majority, to request that the ICJ issue an advisory opinion on the issue pursuant to Article 96 of the UN Charter which authorizes the General Assembly or the Security Council to request the International Court of Justice to give an advisory opinion on any legal question.
Palau is not alone in seeking to abate and reverse the effects of climate change. Representatives from the island nations of Barbados, Grenada,
ILSA Quarterly » volume 20 » issue 2 » December 2011
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