1 Introduction
The rise in international climate litigation has been a subject of interest for numerous scholars, who seek to gain a deeper understanding of its implications. In recent years, there has been a significant increase in the number of lawsuits filed on a global scale, particularly related to climate change issues.1 Notably, Setzer and Higham point out that ‘at least 2,341 cases have been captured in the Sabin Center’s climate litigation databases [and that] two-thirds of the total cases (1,157) have been filed since 2015, the year of the Paris Agreement.’2
One of the main reasons for the increasing number of climate litigation is the lack of States’ action to deal with the climate crisis, which has given rise to civil society engagement in seeking more ambitious climate actions through judicial review.3 The United Nations Environment Programme (UNEP)’s Global Climate Litigation Report4 reveals that ‘litigation has become a key driver of climate change mitigation and adaptation,’ a conclusion shared by the Intergovernmental Panel on Climate Change (IPCC) AR 6 Cycle Report.5
Between June 2022 and June 2023, 70% of the climate lawsuits filed in the United States (US) had either non-governmental organizations or individuals as plaintiffs, while outside the US the proportion reaches up to nearly 90%.6 These numbers refer however to domestic litigation. In the international arena,
Despite the notorious climate crisis and the incapability of the international community to fully and timely deliver the necessary measures on mitigation and adaptation, the existing contentious jurisdiction for dispute settlement under the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement exclusive to State-Parties has never been exercised.7 As a matter of fact, previous mechanisms of compliance have triggered the denunciation of the Kyoto Protocol.8 Reluctance against enforcement measures does not apply to civil society which has increasingly contributed to the proliferation of climate litigation.9 These circumstances raise questions on the access of civil society to these advisory proceedings and the role it would be able to play in the development of international law response against the climate crisis.
Technically, advisory opinions have a strictly consultative function of interpretation and clarification regarding the application of a certain treaty, rule, or obligation provided in international law – that means, non-enforceable on States. However, discussions on their binding nature have always existed10 and persist until the present day, as interpretations are still stretched to grant advisory opinions further effects.11 Participation of interested parties other than
Nevertheless, as parallel proceedings relating to diverse aspects of climate change advance before three international and regional courts, it is evident that the rules governing these courts are inherently distinct, and each court may have a unique contribution in clarifying legal questions related to climate change. In this process of elucidating some of the complex issues put to them, the arguments before the courts bear a crucial role. Indeed, a topic such as procedural distinctions can significantly impact the possibility of various actors, including individuals, NGO s, international organizations, and States, to participate in these proceedings. As a result, this procedural divergence can influence the inclusion of diverse perspectives in the outcomes of these legal processes.
This chapter aims to enhance the understanding of the complexities of international climate litigation by emphasizing the question of participation
2 Participatory Justice Theories and the Challenges of Climate Change Litigation
Understanding participatory justice under international law, and its role in climate justice initiatives, assists in theorising inclusivity and participation in international climate change proceedings. As such, this section discusses participatory justice under international law; it then turns to the discussion of participation in climate change initiatives.
2.1 Participatory Justice under International Law
Participatory justice can take various forms, including a right of access to justice, enabling individuals to assert their rights protected by international, transnational, or regional human rights instruments, notably in relation to harm suffered or envisaged affecting their health and/or their environment.13
This right to participatory environmental justice can also be inferred from other international instruments – eg the 2011 Draft Articles on the Prevention of Transboundary Harm,18 the 2002 Plan of Implementation of the World Summit on Sustainable Development,19 the 2010 UNEP Guidelines for the Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters,20 and the 2012 ‘Rio+20’ Declaration.21
Several regional systems protect this right directly or indirectly, notably through the following binding instruments: European Convention on Human
These international and regional instruments may provide for different types of participatory justice, depending on the parameters adopted and the procedures chosen, enabling the public to access a national court (to bring an action) or an international court (communication or request for examination or investigation), depending on the scope of application in the case in question.
It should also be noted that, despite differing interpretations of participatory justice within international and regional tribunals and other United Nations (UN) treaty monitoring bodies, a review of case law suggests that public participation (as a human right) is consolidating in international law, since it enables the exercise of its other parameters, namely the rights of access to information and to justice.29
2.2 Public Participation in Climate Change Initiatives
Public participation in environmental process is an important part of environmental and climate change initiatives.33 As Tigre and Rocha argue, ‘[t]he dramatic increase in climate litigation over the past decade is a manifestation of climate action democratization in response to the inadequate response from governments and corporations to the climate crisis.’34 Addressing the complex issue of climate change on a global sphere requires harmonised and inclusive efforts, engaging diverse stakeholders from various sectors. Participatory justice theory, which is characterised by principles of inclusivity, deliberation, and fairness, offers a theoretical framework that can enhance the quality and impact of climate change international proceedings.
Participatory justice theory emphasizes the importance of involving affected parties in decision-making processes that directly impact them. It relies on the idea that all those affected by a conflict should be engaged in finding a
As will be discussed below, legitimacy is a critical factor in the success of climate change proceedings. By incorporating participatory justice principles, decision-making processes gain credibility and acceptance. It may be posited that participatory approaches in climate change justice initiative may foster increased legitimacy and result in more effective implementation and long-term adherence. While participatory justice often refers to alternative dispute resolution mechanisms, such as arbitration, conciliation, and mediation, it is insightful to dwell on participation in advisory proceedings through the lens of the principles of participatory justice.
While participatory justice theory offers a promising framework for climate change advisory proceedings, challenges and considerations must be addressed. Issues such as power imbalances, representation, and the need for capacity-building are some of the limitations and critiques associated with participatory approaches in the context of climate change.
It is important to emphasise the vital role of participatory justice theory in enhancing the legitimacy and effectiveness of climate change proceedings. Some of the goals of participatory justice calls for a re-evaluation of current decision-making processes and advocates for the adoption of inclusive approaches that empower communities and stakeholders in the global pursuit of climate justice. As the international community continues to grapple with the impacts of climate change, participatory justice theory emerges as a valuable tool for creating more resilient and equitable solutions.
3
One interesting feature of the parallel international climate change advisory proceedings is the diverging modes of participation allowed in each court and tribunal. In fact, the rules on participation differ depending on the contentious or advisory nature of the proceedings, as well as among courts and tribunals. As discussed below, the IACtHR stands on one side of the spectrum, whose rules allow for broad inclusivity, whereas the ICJ limits participation to States and some international organisations.
Beyond what is allowed by the constitutive treaty of each international or regional institution, striking a balance between allowing broader participation and ensuring procedural fairness and efficiency poses an interesting conundrum. While the IACtHR has experience in dealing with a high number of participation in written and oral submissions in advisory proceedings particularly, the ICJ and the ITLOS have recently seen broader participation compared with their past experience, mostly by States.37 The following sections describe the legal framework for participation in different international and regional courts and tribunals, with a view to comparing and contrasting the spectrum of participatory possibilities, and how participation in each institution may contribute to bridging the gap between the judiciary and the international community. The focus of the discussion of this framework is on the participation before the three courts that have been seized recently with requests for advisory opinions on climate change: the ICJ, the ITLOS, and the IACtHR.
3.1 International Court of Justice (ICJ)
The participation of non-State actors in advisory proceedings before the ICJ is limited to international organizations. Only the UN General Assembly (UNGA), the Security Council, and organs of the UN and specialized agencies that are authorized by the UNGA can request advisory opinions from the ICJ.38 The Registrar must invite international organizations that are likely to furnish relevant information on the question to submit written statements or to participate in a public hearing.39 Invited international organizations can also comment on the
Even though international NGO s are not formally invited to submit written or oral statements in advisory proceedings of the ICJ, they may submit briefs on their own initiative. Practice Direction XII, adopted in 2004, provided formal rules on how to treat such briefs.42 According to the Practice Direction, these documents are not to be considered as part of the case file, but they can be referred to by States and intergovernmental organizations in the same manner as publications in the public domain.
This willingness by the ICJ to place these briefs ‘in a designated location in the Peace Palace’, and to inform the parties of their content signals that NGO s can provide relevant information. Having them automatically being part of the public domain also means that the Court can use them as a source of information for their judgments, even if the interested parties do not refer to these briefs themselves.43
More recently, as part of the ICJ proceedings on the Obligations of States in respect of Climate Change, the Court authorized for example the International Union for Conservation of Nature and Natural Resources (IUCN) to participate in the proceedings.44 This was upon IUCN’s request per Article 66 of the ICJ Statute, which allows states and international organizations considered likely to be able to furnish information on the question to provide a written or oral statement.45 What is interesting about allowing IUCN’s participation in the proceedings is that IUCN is not just a territorial entity or a ‘public international organization’ only made up of States. It is actually a hybrid organization that includes States and subnational governments, government agencies, national and international NGO s, and Indigenous people organizations.46 IUCN was invited to participate in all three advisory proceedings held by the ITLOS,47
3.2 International Tribunal for the Law of the Sea (ITLOS)
The procedures relating to the advisory functions of the Seabed Disputes Chamber (SDC) are the same as those for the Tribunal en banc.49 Advisory opinions are then only open to entities other than States Parties when specifically provided for in the United Nations Convention on the Law of the Sea (UNCLOS)50 or when an international agreement provides for the request of an advisory opinion.51
However, entities other than States Parties can be invited by the Chamber and the Tribunal to intervene throughout the proceedings. International organizations can be identified by the SDC or ITLOS if they are likely to provide relevant information on the question.52 As such, international organizations have been invited to participate in all three advisory proceedings accepted by the ITLOS. For the 2011 advisory opinion on the Responsibilities and Obligations of States with respect to Activities in the Area, the Chamber received written statements from the Interoceanmetal Joint Organization, the IUCN, the International Seabed Authority, and the United Nations Environment Programme (UNEP).53 The SDC also received a joint statement from Greenpeace International and the World Wildelife Fund for Nature, accompanied by a petition that requested their participation in the advisory proceedings as amici curiae.54
For the 2015 Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (SRFC) (Case No 21), the Tribunal received written statements from the Forum Fisheries Agency, the International Union for Conservation of Nature and Natural Resources, the Caribbean Regional Fisheries Mechanism, the UN, the Sub-Regional Fisheries Commission, the Food and Agriculture Organisation of the UN, and the Central American Fisheries and Aquaculture Organization.56 World Wildlife Fund (WWF) International has also submitted a written statement and a request for participation as amicus curiae, which was rejected.57
On 12 December 2022, the ITLOS received a request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law (Case No 31).58 Through Order No 2022/4, the President of ITLOS listed the intergovernmental organizations that could provide relevant information on the questions and invited them to submit a written statement, namely the UN, UNEP, the UNFCCC Secretariat, the Food and Agriculture Organization of the United Nations, the Intergovernmental Oceanographic Commission of UNESCO, the International Maritime Organization, the IUCN, and the World Meteorological Organization.59
As Dolidze puts it, the participation of the IUCN in the Responsibilities and Obligations of Sponsoring States’ proceedings (2011) created a precedent for the participation of NGO s in advisory proceedings.60 The author argues that this specific case plays an important role in the participation of NGO s as amici curiae in advisory proceedings before international courts, that such a participation allows their contribution in international lawmaking, and that
While these organisations were listed as authorised to present written statements, there were numerous other statements that were submitted by individuals and organisations that were not part of the case file but were nevertheless available on the Court website. The large formal participation in the written proceedings of States (34 in total) and international organisations (9 in total) and the submission of written observations that are publicly available (10 in total, albeit not part of the case file) points to a broad participation in the proceedings, and sheds some light on the links between the international community and the judiciary.
3.3 Inter-American Court of Human Rights (IACtHR)
At the IACtHR ‘interested parties’ can be invited or authorized by the Presidency to submit written opinions on the question.63 Any person or institution, such as international organizations, NGO s, and academics, can act as amicus curiae by submitting a brief to the Tribunal.64
In most of the advisory opinions published by the IACtHR, public hearings65 were held and institutions or individuals participated as amicus curiae. For example, in the 2017 advisory opinion on the environment and human rights, interested parties were invited to submit their views according to Article 73(3) of the Rules of Procedure.66 Written observations were submitted by twenty-four State agencies, national and international associations, NGO s and academic institutions, and nineteen members of the civil society.67 The President of the Court also called for a public hearing that was held on March 22,
The IACtHR approached environmental procedural rights in its advisory opinion OC-23/17. The Court asserted the right to access to justice as a peremptory norm of international law which ‘permits the individual to ensure that environmental standards are enforced and provides a means of redressing any human rights violations that may result from failure to comply with environmental standards and includes remedies and reparation.’70 In the case of Baraona Bray v Chile,71 the IACtHR later had the opportunity to further develop the interrelations and connections between the exercise of procedural environmental rights with the protection of the environment and the full enjoyment of human rights against the effects of climate change, in synergy with the rationales expressed in the advisory opinion OC-23/17.72
Concerning the climate change advisory opinion, which is yet to be delivered at the time of writing, the Court received a record number of 265 written observations from diverse entities. It held 7 days of public hearings, with over 150 participants (3 days in Barbados and 4 days in Brazil). This large and diverse participation (eg, ranging from States, to non-governmental organisations, and individuals) points to a strong connection between the international community and the judiciary, which will be able to benefit from the arguments in the multiple submissions.
4 Participation in International Climate Justice as Access to International Justice: How the Climate Change Advisory Proceedings are Changing the International Adjudication Landscape
The 2017 advisory opinion of the IACtHR on the environment and human rights showcased the relevance of advisory functions for environmental justice. The IACtHR has presented a strong opinion on State responsibility as it
However, as stated above, the ICJ advisory proceedings are limited when it comes to non-State actors. The ICJ presents a certain openness to non-state actors by allowing the participation of territorial entities that are involved in the question asked to the court. Furthermore, as discussed, the ICJ adopted Practice Direction XII in 2004, which prevents briefs submitted by amici curiae to be considered as part of the case file but allows parties to use these briefs in their written or oral statements, since they are publications in the public domain.75 However, this openness is not sufficient when it comes to climate justice as a broader non-state actor participation would more broadly represent the interests of the international community on the question. To include a larger scope of non-State actors in advisory opinions of the ICJ, Yael Ronen suggests a non-restrictive interpretation of Article 66 of the Statute of the ICJ.76
4.1 Fostering Access to Justice and Inclusion? Advantages of Broader Participation and Inclusivity in International Climate Change Proceedings
4.1.1 Quality of Information
The traditional role of amicus curiae is to act as a ‘friend of the court’, providing relevant information when the judges lack knowledge on specific subjects.77 NGO s can provide a specialist expertise that can prove helpful when the matter
In some other cases, non-state actors can provide factual information to the court. For example, as part of the ICJ proceedings in the case of the Aerial Incident of 3 July 1988, the International Civil Aviation Organization (ICAO) provided factual information to the ICJ about their investigation on the matter and applicable aeronautic legislation.79
4.1.2 Bypassing Political Constraints?
Amici curiae can also help to bypass political or diplomatic constraints that would restrain a State that is party to the proceedings from representing the interests of some of its constituents, or from expressing arguments that could be used against it in the future.80 In that sense, they help represent the ‘public interest’ in cases where it is not directly presented by one of the parties, thus ensuring the demonstration of a diversity of opinions and allowing for better decision-making by the courts.81
4.1.3 Compliance with International Regulations
NGO participation as amici curiae can act as a reminder for States that there are watchdogs continuously examining their conduct and verifying that they are complying with their legal obligations.82 In the case of human rights violations, where NGO s often act as information gatherers and fact-checkers, they are even more essential to the courts because they provide information directly from the ‘crime scene’, which the State would not have necessarily provided.
NGO s have consistently contributed to the development of international law, particularly in areas like human rights.83 As climate change impacts and human rights enjoyment are interrelated, the importance of NGO s in the current international climate regime is crucial. Notably, NGO s have adopted
In that sense, these ‘watchdogs’ are particularly important regarding climate change-related human rights violations, because they often occur in lightly populated or remote regions out of the government’s monitoring area. NGO s can provide information from a larger area and a more diverse audience than the centralized government’s monitoring mechanisms. These violations can also happen directly because of government negligence, in which case NGO s, as impartial amici curiae, can provide more trustworthy information than the government would otherwise provide.
4.2 Drawbacks and Challenges Related to Broader Participation: Where to Draw the Line?
4.2.1 Overwhelming the Courts and the Selection Problem
The biggest risk identified by some scholars who studied inclusivity in advisory proceedings is the risk of having too many entities applying to be amici curiae.87 Since there are a huge number of NGO s around the world that could provide relevant information to proceedings touching global subjects, like climate change, there is a real threat of overloading international courts with too much information. This would put under threat the courts’ capacity to properly read, address, and classify all this information; and since it may be impossible to have each and every NGO who applies represented before courts, it brings the question of how to determine the criteria that should be used to pick which of the amici should be selected by courts. It would also be important for courts to ensure that the selected amici curiae represent all the different facets of the case (ie, social, economic, cultural or political impacts).88 Transforming all these factors into a consensus pick could prove to be quite challenging. It is
4.2.2 Transparency Arguments
If the goal of seeking for more inclusivity in amici curiae participation in proceedings is in part to improve the public’s trust in international courts, there would be a need for more transparency regarding which groups asked to provide briefs, which groups provided one and how they were selected.90 Nowadays, courts (especially the ICJ) do not always mention when and why their decisions are influenced by an amicus brief, while it might in fact provide better transparency and an improved legitimacy for their role.91 Courts would also have to address the issue of the accessibility of the case’s information to potential amici, especially regarding the object and facts of the dispute or submission deadlines, which are not always made available online.92
4.2.3 Neutrality or Partisanship?
It is not clear if amici curiae should be neutral or if they should be advocates of their position. Since amici curiae have a lot of different roles in court, it is sometimes hard to determine if they should always behave as independent ‘friends of the court’, or if they should sometimes be allowed to advocate for one party more than the other. For example, if a human right NGO is invited as amicus curiae to an ECtHR proceeding, they may have an interest in defending the victims more than the defendant. Opposingly, an amicus who is invited to provide independent facts to the ICJ will be expected to be neutral and impartial.93 Civil society ‘refers to the associations of citizens (outside their families, friends and businesses) entered into voluntarily to advance their interests, ideas and ideologies,’94 duly acknowledged as having something to contribute to the development of international law, notably concerning environmental issues.95 It should therefore provide more latitude to amici curiae to express their views as they see fit.
6
Despite the lack of a binding force, advisory opinions contribute to the development of international law and, with current proceedings, can enhance climate change response.96 In the context of an issue that is both complex and omnipresent such as climate change, views submitted by participants not only can help connect the judiciary and the international community, but are also likely to provide different perspectives which can contribute to delivering more inclusive climate justice.
Participation in advisory proceedings is expected to influence advisory opinions on climate change. With written observations coming from diverse participants, they may influence how the courts rule on the varied questions posed to them. For example, the ITLOS advisory opinion referred to observations of participants.97 Similarly, the IACtHR has heard numerous observations from different participants, linking to specific consequences of climate change. The Court might equally be influenced by evidence or arguments submitted by the amici submissions. The ICJ, which is potentially the third Court to deliver the opinion, is also likely to be guided by the submissions in its opinion.
As previously mentioned, one of the main issues arising in advisory procedures concerns their legal effects. Despite their clear objective in international law, one cannot deny the potential influence of advisory opinions which renders discussions on their binding nature more limited.98 For this purpose, the ICJ has concluded that ‘a distinction should thus be drawn between the advisory nature of the Court’s task and the particular effects that parties to an existing dispute may wish to attribute, in their mutual relations, to an advisory opinion of the Court.’99
States’ failure to respond to the climate crisis has entailed a massive climate litigation movement led by civil society.100 As an aftermath, this proliferation in climate litigation may result in the strengthening of transparency and participation through means of the increasing recognition of environmental procedural rights (access to information, access to justice and participation in the
Procedural environmental rights were first formally conceived in the Rio Declaration. Its Principle 10102 is acknowledged as the most important provision on public participation and served as the theoretical basis for the negotiation of international treaties on the subject, such as the Aarhus Convention and the Escazú Agreement, these treaties establish standards ‘against which the compatibility of national standards could be compared and as forecasting the creation of new procedural rights that could be granted to individuals through international law and exercised at the national and possibly international level.’
This chapter has reviewed participation in advisory proceedings before different international and regional courts. Through a discussion of participatory justice theories, and the advantages and drawbacks of inclusivity in international climate proceedings, it argued that increasing participation in advisory proceedings supports inclusivity in international climate justice, the legitimacy of advisory opinions and their implementation. It has also highlighted that through the different advisory proceedings on climate change, large participation fosters a greater connection between the judiciary and the international community. There is hardly a topic that concerns all of humanity as much as the urgency posed by climate change. As international and regional courts grapple with the questions put to them, including the voices of those affected by climate change can enlighten the way and legitimize the processes and the outcomes.
Acknowledgments
The author thanks the Canada Research Chair Program of the Social Sciences and Humanities Research Council of Canada for the research support. The author also expresses gratitude to Janie Renaud, Felix Gagnon, and Enéas Xavier de Oliveira for research assistance.
Université de Montréal, ORCID ID 0000–0002-5481-5702, email: <miriam.cohen@umontreal.ca>.
See: Michael Burger & Maria Antonia Tigre, Global Climate Litigation Report: 2023 Status Review (Sabin Center for Climate Change Law, Columbia Law School & United Nations Environment Programme, 2023).
Joana Setzer & Catherine Higham, Global Trends in Climate Change Litigation: 2023 Snapshot (Grantham Research Institute on Climate Change and the Environment 2023) 13.
Maria Antonia Tigre & Armando Rocha, ‘Competing Perspectives and Dialogue in Climate Change Advisory Opinions’ (2023) 117 AJIL Unbound 287, 287.
Burger & Tigre (n 1) 74.
Martina Angela Caretta et al, ‘Water’, in Pörtner et al (eds), Climate Change 2022: Impacts, Adaptation and Vulnerability. Contribution of Working Group II to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (CUP 2023) 551, 659.
Setzer & Higham (n 2) 18.
Pierre-Marie Dupuy & Jorge E. Viñuales, International Environmental Law (2nd edn, CUP 2018) 196.
Compliance Committee. Canada’s withdrawal from the Kyoto Protocol and its effects on Canada’s reporting obligations under the Protocol. CC/EB/25/2014/2, 20 August 2014.
Pierre-Marie Dupuy & Jorge Viñuales, ‘The Challenge of “Proliferation”: An Anatomy of the Debate’, in Romano et al (eds), The Oxford Handbook of International Adjudication (Oxford University Press 2013) 135, 153.
On this matter: John Bassett Moore, ‘Memorandum – The question of advisory opinions, 18 February 1922’, in Acts and Documents concerning the organisation of the Court. N. 2 Preparation of the Rules of Court (January 30th to March 24th 1922), Annex 58a, 383.
On this matter, see generally Roberto Ago, ‘“Biding” Advisory Opinions of the International Court of Justice’ (1991) 85 AJIL 439; Guillaume Bacot, ‘Réflexions sur les clauses qui rendent obligatoires les avis consultatifs de la CPJI et de la CIJ’ (1980) Revue Générale de Droit International Public 1027. Rights and Guarantees of Children in the Context of Migration and/or Need of International Protection. Advisory Opinion OC-21/14, Inter-American Court of Human Rights Series A No 14 (19 August 2014), § 28: ‘While recalling that the advisory function constitutes “a service that the Court is able to provide to all the members of the inter-American system, in order to contribute to compliance with their international commitments” in the area of human rights, the Court considers it critically important to establish with greater precision the rights and guarantees of children in the context of migration—in other words, child migrants and/or in need of international protection, as well as children of migrants. This will lead to the determination of the specific principles and obligations that States must comply with in relation to the human rights of children in order to adopt comprehensive protection measures that are sufficient and pertinent in each situation.’
In the Case of Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, the Permanent Court of International Justice had to decide whether to conceive access to minority parties of the Danzig Senate, petitioners of the advisory opinion that had reached the Court. Following the rules of the Court, the petitioners could submit written contributions but were later prevented from being heard, a right that was fully granted to the Senate (the challenged party) on the other hand. Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City (Advisory Opinion) PCIJ Rep Series A/B No 65. Further information: Kenneth Keith. ‘Advisory Proceedings: International Court of Justice (ICJ)’, in Max Planck Encyclopedia of International Law, §14, available at: <https://opil.ouplaw.com/display/10.1093/law-mpeipro/e3375.013.3375/law-mpeipro-e3375#law-mpeipro-e3375-bibItem-111> last accessed 10 December 2023.
Jonas Ebbesson, ‘Access to justice in environmental matters in international law: why and how?’, in Bétaille (ed), Le droit d’accès à la justice en matière d’environnement (Presses de l’Université Toulouse Capitole, 2016) 63.
For a detailed analysis of the development of the right to public participation in international environmental law, see: Jona Razzaque, ‘Information, Public Participation and Access to Justice in Environmental Matters’, in Techera et al (eds), Routledge Handbook of International Environmental Law (Routledge 2020) 58.
Rio Declaration on Environment and Development, Principle 10; Report of the United Nations Conference on Environment and Development (June 3–14, 1982), UN Doc. A/CCONF. 151/26, Vol II, Annex I.
For an overview of the development and practice of the rights of access to information, public participation in decision-making and access to justice in environmental matters, since their codification as non-binding principles in Principle X of the Rio Declaration in 2017, see: European Environmental Law Forum. Conference (4th: 2016: Wrocław, Poland), and Uniwersytet Wrocławski. Jerzy & Bar (eds), Procedural Environmental Rights: Principle X in Theory and Practice, vol 4 (Intersentia 2017).
1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, Economic Commission for Europe Resolution of 21 April 1998, UN Doc ECE/CEP/43 (adopted 25 June 1998, entered into force 30 October 2001) 2161 UNTS 447.
‘Draft Articles on Prevention of Transboundary Harm from Hazardous Activities’, adopted by the International Law Commission at its 53rd session, UN Doc A/RES/56/10 (2001).
Plan of Implementation of the World Summit on Sustainable Development; Report of the World Summit on Sustainable Development (August 26-September 4, 2002), A/CONF.199/20, Annex.
UNEP Guidelines for the development of national legislation on access to information, public participation and access to justice in environmental matters (Bali), adopted by the Governing Council of the United Nations Environment Programme, decision SS.XI/5, part A of February 26, 2010.
UNGA Res 66/228 (11 September 2012) UN Doc A/RES/66/288 (‘The Future We Want’).
Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) 213 UNTS 221.
American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) OAS Treaty Series No 36.
Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean (adopted on 4 March 2018, entered into force 22 April 2021) 3388 UNTS.
Nordic Convention on the Protection of the Environment (adopted 19 February 1974, entered into force 5 October 1976) 1092 UNTS 279.
African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1982) 1520 UNTS 217.
African Convention on the Conservation of Nature and Natural Resources (adopted 15 September 1968, entered into force 16 June 1969) 1001 UNTS 4.
OECD Recommendation for an Equal Access and Non-Discrimination Regime for Transboundary Pollution (C77/) 28 (Final) (1977) 16 ILM (1977) 977.
Leslie-Anne Duvic-Paoli, ‘The Status of the Right to Public Participation in International Environmental Law: An Analysis of the Jurisprudence’ (2012) 23 Yearbook of International Environmental Law 80.
Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, UN General Assembly Resolution No A/RES/63/117, 10 December 2008, UN Doc A/63/435. (adopted 10 December 2008, entered into force 5 May 2013) 2922 UNTS 29.
Sandra Liebenberg, ‘Participatory Justice in Social Rights Adjudication’ (2018) 18 Human Rights Law Review 623.
ibid. See also Nicholas McMurry & Siobhan O’Sullivan, ‘A Human Rights-Based Approach to Participation’ (2022) 16 Studies in Social Justice 554.
‘Public Participation under Action for Climate Empowerment’, United Nations Climate Change, available at: https://unfccc.int/topics/education-and-outreach/workstreams/public-participation.
Tigre & Rocha (n 3) 287.
Law Commission of Canada, ‘Towards Participatory Justice: A Focus on People and Relationships’, 2000, available at: https://dalspace.library.dal.ca/bitstream/handle/10222/10291/Participatory%20Justice%20Report%20Pamphlet%20EN.pdf?sequence=1&isAllowed=y.
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v Russian Federation; 32 States intervening) (Order of 5 June 2023); see also ibid, CR 2023/16.
Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 892 UNTS 119, art. 96 (UN Charter), Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 892 UNTS 119, art 65(1) (ICJ Statute).
ICJ Statute, art 66(2).
ICJ Statute, art 66(4).
Rules of Court of the International Court of Justice (adopted 14 April 1978) ICJ Rep 1983, 131 (ICJ Rules of the Court).
Practice Direction No XII, promulgated on 30 July 2004, available at <https://www.icj-cij.org/practice-directions>.
Lance Bartholomeusz, ‘The Amicus Curiae before International Courts and Tribunals’ (2005) 5 Non-State Actors & Int’l Law 209.
International Court of Justice, Press Release No 2023/29, released on June 14 2023.
ICJ Statute, art 66.
International Union for the Conservation of Nature and Natural Resources, Members directory. Members directory | IUCN.
See the three advisory proceedings: https://www.itlos.org/en/main/cases/advisory-proceedings/.
International Court of Justice, Press Release No 2024/31, released on 12 April 2024 and Press Release No 2024/81, released on 13 December 2024.
United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 UNCLOS, Annex VI (Statute of the International Tribunal for the Law of the Sea), art 40(2) (ITLOS Statute).
UNCLOS, art 291(2).
ITLOS Statute, art 21; Rules of the International Tribunal for the Law of the Sea, adopted on 1 October 1, 1997, ITLOS/8/Rev.1, art 138(1) (ITLOS Rules).
ITLOS Rules, art 133(2).
Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Request for Advisory Opinion Submitted to the Seabed Disputes Chamber (Advisory Opinion, 1 February 2011) ITLOS Case No 17, §§11 & 16.
ibid §13.
ibid §14.
Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (SRFC) (Advisory Opinion, 2 April 2015) ITLOS Case No 15, §17.
ibid §23.
Request for Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law, Order No 2022/4 (16 December 2022) available at <https://www.itlos.org/fileadmin/itlos/documents/cases/31/C31_Order_2022-4_16.12.2022_01.pdf>.
ibid, annex.
Anna Dolidze, ‘Advisory Opinion on Responsibility and Liability for International Seabed Mining (ITLOS Case No. 17) and the Future of NGO Participation in the International Legal Process’ (2013) 19 ILSA Journal of Int’l & Comp Law 379, 381.
ibid 382.
International Court of Justice, Press Release No 2023/29 released on June 14, 2023.
Rules of Procedure of the Inter-American Court of Human Rights, art 73(3) (IACtHR Rules of Procedure).
IACtHR Rules of Procedure, art 44(1).
IACtHR Rules of Procedure, art 73(4).
The Environment and Human Rights (State Obligations in Relation to the Environment in the Context of the Protection and Guarantee of the Rights to Life and to Personal Integrity—Interpretation and Scope of Articles 4(1) and 5(1) of the American Convention on Human Rights) Advisory Opinion OC-23/17, Inter-American Court of Human Rights Series A No 23 (15 November 2017) §5 (Advisory Opinion OC-23/17).
ibid §6.
ibid §§8–9.
ibid §11.
ibid §234.
Case of Baraona Bray v Chile (Preliminary Objections, Merits, Reparations and Costs). Inter-American Court of Human Rights Series C No 481 (24 November 2022) §§100, 114.
Gonzalo Aguilar Cavallo, ‘La emergencia climática y los derechos humanos’ (2023) 27 Revista de Derecho 1, 5.
See on this point, Angeliki Papantoniou, ‘Advisory Opinion on the Environment and Human Rights’ (2018) 112 AJIL 460.
Anxhela Mile, ‘Emerging Legal Doctrines in Climate Change Law—Seeking an Advisory Opinion from the International Court of Justice’ (2021) 56 Texas Int’l Law Journal 59.
Armando Rocha, ‘Amicus Curiae before the International Tribunal for the Law of the Sea: The Prospect of an Advisory Opinion on Climate Change and the Law of the Sea’ (2022) 6 Católica Law Review 87, 99.
Yael Ronen, ‘Participation of Non-State Actors in ICJ Proceedings’ (2012) 11 The Law & Practice of Int’l Courts & Tribunals 77, 96.
Laura Van den Eynde, ‘An Empirical Look at the Amicus Curiae Practice of Human Rights NGO s before the European Court of Human Rights,’ (2013) 31(3) Netherlands Quarterly of Human Rights 271, 273.
Rocha (n 75) 103.
ICJ, Observations of the International Civil Aviation Organization, 4 December 1992.
Rocha (n 75) 102.
Frans Viljoen & Adem Kassie Abebe, ‘Amicus Curiae Participation Before Regional Human Rights Bodies in Africa’ (2014) 58 Journal of African Law 22, 25.
Bartholomeusz (n 43).
Steve Charnovitz, ‘Nongovernmental Organizations and International Law’ (2006) 100 AJIL 348, 360.
Astrid Dannenberg et al, ‘Naming and Shaming as a Strategy for Enforcing the Paris Agreement: The Role of Political Institutions and Public Concern’ (2023) 40 PNAS.
Robert Falkner, ‘The Paris Agreement and the new logic of international climate politics’ (2023) 92 International Affairs 1107, 1119.
Sharon Yadin, Fighting Climate Change Through Shaming (CUP 2023) 10.
Rocha (n 75) 104.
ibid 104.
Luigi Crema, ‘Testing Amici Curiae in International Law: Rules and Practice’ (2012) 22 Italian Yearbook of Int’l Law 91.
ibid.
Bartholomeusz (n 43).
Crema (n 89).
Bartholomeusz (n 43) 280.
UNGA. Fifty-eighth session. Panel of Eminent Persons on United Nations – Civil Society Relations. New York, 11 June 2004, available at <https://digitallibrary.un.org/record/523950/files/A_58_817-EN.pdf>, last accessed on 10 March 2021).
Paulo Affonso Leme Machado, Direito Ambiental Brasileiro (24th edn, Malheiros 2016) 134.
Setzer & Higham (n 2) 18.
Eg see Request for an Advisory Opinion Submitted by the Commission of Small Island States on Climate Change and International Law (Advisory Opinion, 21 May 2024) ITLOS Case No 31, §143.
Fourth Annual Report of the Permanent Court of International Justice (June 15th, 1927 – June 15th, 1928). Series E – No 4. Report of the Committee appointed on 2 September 1927, 77.
Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion, 29 April 1999) ICJ Rep 62, §25, 77.
Tigre & Rocha (n 3) 287.
Dupuy & Viñuales (n 9) 153.
United Nations General Assembly. Report of the United Nations Conference on Environment and Development. 12 August 1992. A/CONF.151/26 (Vol. I), principle 10: environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.