The UN Charter gives the UN General Assembly (UNGA) and the Security Council the power to request an advisory opinion from the International Court of Justice (ICJ) on any legal question. In March 2023, the ICJ received a much anticipated request from the UNGA to advise States on their legal obligations regarding climate change. The UNGA’s request covers different areas of international law, including human rights law and the right to health. The World Health Organization (WHO) has the opportunity to make a submission. In view of the WHO’s longstanding work and advocacy on climate change as the pre-eminent public health concern of this century, it would be a lost opportunity if WHO only submits technical reports on the impact of climate change on health. More valuable would be a strong statement of the international legal arguments for State obligations to address climate change from the right to health perspective
By David Patterson, LLM, MSc, PhD Candidate
Department of Transboundary Legal Studies, Faculty of Law
University of Groningen, Netherlands
Member, Steering Committee, EUPHA law and public health section
WHO, the Right to Health and the Climate Crisis – What Advice for the ICJ?
The UN Charter gives the UN General Assembly (UNGA) and the Security Council the power to request an advisory opinion from the International Court of Justice (ICJ) on any legal question. The same is true for UN specialised agencies (within the scope of their activities), including the World Health Organization (WHO). Advisory opinions are generally not binding however they carry great legal weight and moral authority.
Thirty years ago, in 1993, the World Health Assembly (WHA) asked the ICJ to advise on the legality of the use of nuclear weapons in war or other armed conflict. The WHO then made substantive legal submissions to the ICJ on the issue. This was a bold, highly political move by the WHA and the WHO, and reflected worldwide concerns about nuclear annihilation at that time.
This year the ICJ has again been called to advise on an issue affecting the very survival of humankind. In March 2023, the ICJ received a much anticipated request from the UNGA to advise States on their legal obligations regarding climate change. The UNGA’s request covers different areas of international law, including human rights law and the right to health.
All the currently submitted documentation is on the ICJ website. The UN Environment Programme (UNEP) and the World Meteorological Organization (WMO) have submitted technical reports. But these reports don’t address States’ international legal obligations. Other stakeholders, including the Organization of Petroleum Exporting Countries (OPEC), have also been accredited to make submissions. They may well argue for a narrow interpretation of States’ obligations.
In view of the WHO’s longstanding work and advocacy on climate change as the pre-eminent public health concern of this century, it would be a lost opportunity if WHO only submits technical reports on the impact of climate change on health. This information is already well-documented by Lancet Countdown and other sources. More valuable would be a strong statement of the international legal arguments for State obligations to address climate change from the right to health perspective.
The broad arguments are already well-articulated by authoritative sources. In July 2022 the UN General Assembly declared access to a clean, healthy and sustainable environment a universal human right. In August 2023 the UN Committee on the Rights of the Child (CRC) issued General Comment 26 on children’s rights and the environment, with a special focus on climate change. The CRC discussed the right to the highest attainable standard of health and noted, for example, obligations regarding national health plans, policies and strategies, and legislative, regulatory and institutional frameworks. The CRC also advised that States should immediately ‘…equitably phase out the use of coal, oil and natural gas, ensure a fair and just transition of energy sources and invest in renewable energy, energy storage and energy efficiency…’
Under international law States also have obligations to provide international assistance commensurate with their capacities, resources and influence. States in a position to do so should provide international assistance, including financial, technological, and other forms of assistance, to contribute to the realization of human rights of present and future generations. WHO should also explore these obligations in its submission to the ICJ.
The WHO Director-General, Dr Tedros Adhanom Ghebreyesus has done much to affirm the right to health under international law, including through a statement on Human Rights Day in 2017, an article in The Lancet in 2018 and at the launch of a major report on global health and the law in 2019 (his remarks in this video could not be clearer or more compelling). WHO’s Key Facts on Human Rights (10 December 2022) reiterates that ‘The right to the highest attainable standard of health’ implies a clear set of legal obligations on states to ensure appropriate conditions for the enjoyment of health for all people without discrimination.’ In February 2023, WHO reiterated the importance of rights-based approaches to the climate crisis in a submission regarding the first Global Stocktake.
The deadline for ICJ submissions is 22 January 2024. States and organizations which have made submissions may then make written comments on other statements submitted to the ICJ.
The international human rights legal framework we have today was forged in the ashes of wars in first half of the 20th century. Yet those horrors do not approach the devastation inaction today will bring current and future generations. There is now a unique opportunity for WHO to stress, at the highest international legal level, that combatting climate change for public health is not just a matter of sound policy making. States also have legal obligations to respect, protect and fulfil the right to health in the context of climate change. This includes obligations of international assistance and cooperation.
Cross-posted to the Groningen Centre for Health Law blog
By the same Author on PEAH Strategic Litigation and Social Mobilisation: Part of Public Health’s Advocacy Toolbox to Address the Climate Crisis Public Health, Climate Change and Strategic Litigation: Building a Powerful Alliance between Public Health Practitioners, Communities, and Legal Advocates Why Some Global Health Experts Didn’t Sign the Call on the United Nations for Human Rights Guidelines on Healthy Diets and Sustainable Food Systems Pick the Odd One Out: Sugar, Salt, Animal Fat, Climate Change: What Are We Teaching? Falsified and Substandard Medicines: Threat to the SDGs – but Who’s Watching, Caring or Acting?