Surpassing:Is it Time for the World Court to Weigh in on Climate Change?

The SurpassingPacific Island nation of Vanuatu has called for the Hague-based International Court of Justice to weigh in on whether nations have a legal responsibility to prevent their greenhouse gas emissions from harming other countries.  

Ahead of the United Nations’ climate talks in Scotland next month, Vanuatu said it would work to build a coalition of countries to support a U.N. General Assembly resolution asking the court to issue an advisory opinion on climate change. The resolution would require either majority or two-thirds support, depending on how the U.N. Charter is interpreted. 

If Vanuatu succeeds, and if the court agrees to take up the issue, its opinion would mark the first time the U.N.’s principal judicial body has considered legal responsibilities related to climate change. 

The ruling would also represent a significant departure from the status quo, in which national governments, working loosely together through the voluntary U.N. climate process, have maintained exclusive control over how the world stops global warming. 

Youth climate activists, meanwhile, have suggested another legal question: “What are the obligations of states under international law to protect the rights of present and future generations against the adverse effects of climate change?”

Along with countries most vulnerable to climate change, the youth activists have been leading voices in the call for an advisory opinion from the International Court of Justice on global warming.

One group, the World’s Youth for Climate Justice, released an 87-page report on the issue, pointing to mounting evidence that climate change is worsening “pre-existing inequalities and human rights challenges such as poverty,” for vulnerable groups including children. 

On Sept. 26, a study published in the journal Science added to their concern, finding that people born in 2020 will face roughly triple the number of climate disasters as their grandparents. Children in low lying archipelagos like Vanuatu, a nation of 83 islands about 1,200 miles from Brisbane, Australia, face some of the worst effects, including the erasure of their ancestral lands as sea levels continue to rise and increasingly powerful cyclones that have battered the islands in recent years.  

While the court’s advisory opinions aren’t legally binding, they carry exceptional weight, influencing the behavior of governments and private companies, and creating precedent for other international tribunals and national courts to rely upon in their own decision making.

Michael B. Gerrard, director of Columbia Law School’s Sabin Center for Climate Change Law, said national courts in the Netherlands, Pakistan, Germany, France, Australia, Nepal and Colombia have issued rulings on climate change that are either based in part on international law, or are closely related to it.

“An ICJ opinion could strengthen judges in these and other countries to go further,” Gerrard said.

While an International Court of Justice ruling would be momentous, it wouldn’t supplant the need for countries to continue climate negotiations. Whether the court’s involvement is harmful or helpful in the fight against climate change could largely depend upon the type of question the General Assembly puts before it.

Regardless of the outcome of Vanuatu’s efforts, its quest for the world court to weigh in has highlighted an injustice at the heart of climate change: small and unindustrialized countries that have made the smallest contribution to global warming, and are least able to adapt to it, are suffering the worst of its effects. And more than 20 years of ongoing intergovernmental negotiations haven’t moved fast enough to stop increases in harmful emissions.

“Ever looming is the threat of future disasters and extreme weather events, which are being fueled and exacerbated by climate change,” Bob Loughman, Prime Minister of Vanuatu, said in a Sept. 26 speech before the UN General Assembly. 

Where Did This Idea Come From?

The idea for an International Court of Justice advisory opinion on climate change has been around since at least 2012, and has been divisive among governments and legal scholars.

About a decade ago, Palau and the Marshall Islands, other low-lying island states, led a push for a similar U.N.-backed request for the court to issue an advisory opinion on climate change. 

“Climate change is the greatest challenge facing our planet today. Within a generation, rising seas threaten to swallow entire countries, along with their unique histories, languages and cultures. It has impacted our lives daily in Palau and it weighs heavily on our hearts,” Palau’s then-President Johnson Toribiong said during a 2012 U.N. news conference in that previous effort to get the court to issue a climate change advisory opinion.  

In looking to the International Court of Justice to weigh in, supporters were hoping it would clarify an ambiguous area of international law: what are the responsibilities of governments to ensure that greenhouse gas emissions from their territories do not harm other countries?

For Palau, the Marshall Islands and similarly situated countries, a favorable answer to that question would have put significant pressure on major emitters to curb greenhouse gases and boost the position of the countries least responsible for the problem but most affected by it—countries that also tend to be the least politically powerful. 

Should Vanuatu succeed at calling the question, an ICJ opinion could make a difference in future climate negotiations, according to legal scholars, who say a ruling by the court could set new rules of the road for future talks. 

Such a decision could also wrestle some political control over climate change from major emitters and superpowers, like the United States, China and the European Union. 

The pursuit of an advisory opinion by Palau and the Marshall Islands nearly a decade ago died after the United States, under Barack Obama, made known its opposition to the idea. The State Department declined comment on the issue.  

Some legal scholars also opposed a climate change advisory opinion in 2012, wary that the court’s involvement could be counterproductive to ongoing political negotiations. They also feared that the question put to the court could be badly worded, leading to an unhelpful—or harmful—decision in the eyes of those wishing for strong government action on climate change.

In the 1990s, countries wishing to abolish the use of nuclear weapons supported a General Assembly resolution asking the court for an advisory opinion on the legality of the use of those weapons. But the court ruled that there could be some instances where the use of those weapons could be legal under international law—the opposite of what advocates had been angling for.

If countries ask the court to examine the historical fault of governments for greenhouse gas emissions, a politically sensitive issue, it could hinder the ongoing talks under the Paris process, according to Gerrard.  

“There won’t be a request to talk about money damages,” he said, describing the climate change question Vanuatu will most likely ask the General Assembly to consider. “That would make a hard situation much harder. The question will focus on states’ obligation to reduce emissions.”

During the 2012 effort, Palau and the Marshall Islands, which consulted with Gerrard at the time, proposed a question that focused on transboundary harms: “What are the obligations under international law of a State for ensuring that activities under its jurisdiction or control that emit greenhouse gases do not cause, or substantially contribute to, serious damage to another State or States?”

Since 2012, both science and the law have evolved to increase Vanuatu’s likelihood of success: the science behind human-caused climate change has become indisputable, the ability to attribute emissions to individual sources has sharpened and international courts, including the International Court of Justice, have begun weighing in on global environmental issues.

“The science keeps getting more and more concerning with each passing year,” Gerrard said. “As the major nations of the world continue to fail to take adequate action, these countries look to the courts or other forums that might save them.”

What is the Process?

If the General Assembly acts and the International Court of Justice agrees to hear the case, countries can submit briefs on the issue and the court could hold oral arguments in front of the 15-judge panel. Scientific and other expert witnesses could be called. The court usually takes several months to deliberate before issuing a decision by majority vote. All together, the process could take up to a year or longer. 

There are other options aside from an advisory opinion. One is for Vanuatu or another country to file a so-called contentious case against a high-greenhouse gas emitting country in the International Court of Justice. Both countries would have to voluntarily agree to submit to the court’s jurisdiction. (The court either hears cases in which it issues advisory opinions, or contentious cases between nations).

Alternatively, a climate change-related case could be brought in other international tribunals like the International Tribunal for the Law of the Sea or the World Trade Organization. 

Regardless of the forum, advocates will still need to overcome a realpolitik problem: Superpowers like the United States have refused at times to comply with rulings of international courts.

In 1986, the United States rebuffed an International Court of Justice ruling in a contentious case between it and Nicaragua over American support for Contra rebels. And in 2016, China refused to comply with an arbitration tribunal ruling in a dispute between the Philippines and China over maritime boundaries.

Officials in Vanuatu and other climate-vulnerable countries say people old and young can’t ignore the global warming-induced changes happening around them, making the world court’s involvement a necessary step towards justice.