Author : Kenson Mutethia
Release : 2023
Genre :
Kind : eBook
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Book Synopsis Adjudicating Climate Change by : Kenson Mutethia
Download or read book Adjudicating Climate Change written by Kenson Mutethia. This book was released on 2023. Available in PDF, EPUB and Kindle. Book excerpt: There is a consensus in climate science - the science that studies climate and climate change -and in the international community that without ambitious climate action, multiple tipping points will be triggered thereby causing adverse impacts on biodiversity and ecosystems. That being the case, the overarching question remains to be-are we taking adequate mitigation and adaptation measures to prevent the negative climate change impacts before these multiple tipping points are triggered? To answer this question, two immutable principles come intoplay. First, you cannot use an old map to explore a new world and relatedly to this, insanityis doing the same thing over and over again and expecting different results. From these, it is suggested that if we are to make any progress in combating climate change, we ought to review whether the intergovernmental negotiations paradigm where political actors play the dominant role in the development of norms to deal with climate change is adequate to counter the looming existential threat of climate change. The underpinning argument here is that while intergovernmental negotiations have not irretrievably broken down the frays of multilateralism, an ambitious and progressive climate action demands a more deliberate inclusion of international adjudication as a supplementary tool to complement and overcome the blind spots of international negotiations. International adjudication will strengthen multilateralism and salvage international negotiations from becoming “empty institutional hangovers” of a lingering status quo in the face of the unfolding climate disaster. The article specifically focuses on the “progressive” action to involve international adjudicatory bodiesthrough their advisory jurisdiction to help clarify the obligations of States and the legal consequences thereof arising from States' obligations in respect of climate change. An advisory function here signifies progress and is a valuable tool to bridge the gap between the reality of climate change impacts and the uncertainty in the promise of international law to tackle this reality. The article particularly addresses the prospects of the initiative of Vanuatu to have the UN General Assembly request an advisory opinion on climate change from the International Court of Justice (“ICJ”). Based on the draft UN General Assembly Resolution on: “Request for an advisory opinion of the ICJ on the obligations of States in respect of climate change” circulated by Vanuatu to the broader UN membership on 30th November 2022, to analyse the prospects of an advisory opinion, the article identifies three aspects: jurisdiction of the ICJ, discretion and potential compelling reasons and the utility of the advisory to the UN General Assembly. After weighing the legal and political risks attendant to an ICJ advisory opinion, the article concludes that while our climate change situation demands this “progressive” intervention it should not be lost that international adjudication and particularly an advisory opinion by the ICJ on climate change is not the panacea and will not solve the problems derived from climate change. Nevertheless, used as a bridging gap, it will enhance the interpretation and application of applicable treaties, conventions, policy intentions and rules in light of climate change.
