Pressure is increasing to bring a climate change issue to the International Court of Justice (ICJ) – the World Court – in The Hague. A decision, although non-binding, could exert a powerful influence on many national courts which could issue binding orders.
The past year has seen an increase in forest fires, heat waves, extreme rainfall and flooding in many parts of the world. Scientists generally agree that climate change has made extreme weather events more frequent and intense.
After a brief slowdown due to the pandemic, global greenhouse gas emissions continued their ascent. These physical conditions add to the global alarm sparked by climate change.
The nations of the world agreed in Paris in 2015, that global average temperatures must remain between 1.5 and 2 degrees Celsius (2.7 – 3.6 degrees Fahrenheit) above pre-industrial conditions. Then, in 2018, the Intergovernmental Panel on Climate Change has shown that it is not good enough; even 2 degrees Celsius risks catastrophic climate change, and we have to stick to 1.5 degrees.
If countries don’t act, people will turn to the courts
If governments and parliaments do not take the necessary action, many people will turn to the courts. More … than 1,800 lawsuits were caused by climate change. In recent years, courts in the Netherlands, Germany, France, Australia, Nepal, Pakistan and Colombia have issued rulings demanding government action on climate change based not only on laws enacted by legislatures, but also on constitutional provisions and human rights doctrines.
On October 8, the UN Human Rights Council adopted a resolution declaring a human right to a healthy environment. On the same day, the UN Committee on the Rights of the Child declared that “failure to take measures to prevent foreseeable damage to human rights caused by climate change, or to regulate activities contributing to such damage, could constitute a violation of States’ human rights obligations”.
The ICJ has yet to hear the climate change case
No climate change case has ever been brought before the ICJ, the main judicial body of the UN. The ICJ can render two types of decisions: contentious and advisory. For various legal reasons, an advisory opinion would be the way to go here.
The nation of Vanuatu, an archipelago in the South Pacific Ocean, is currently leading the charge to obtain such an opinion on climate change.
The United Nations General Assembly could request an advisory opinion. All the members would vote. This would likely require a simple majority of those present and voting (although one theory is that a two-thirds vote would be necessary). In any case, the vote would not be subject to the veto of any country, unlike the votes of the Security Council.
It would be important to formulate a question to the ICJ that would have a clear answer. So far there is no consensus on the question to ask.
Once the ICJ takes an advisory case, it invites all states to submit written comments. Any small state wishing to take a stand could easily find NGOs and academics who would be very happy to write submissions for this at no cost. Thus, the ICJ would be inundated with detailed briefs and factual statements.
The ICJ usually holds oral pleadings if a state requests it, which would certainly be the case here. States and some other organizations that have made submissions may argue. Thus, the arguments, which take place before the 15 judges, can become quite long.
The tribunal renders its decisions by a simple majority of the votes of the members. Individual judges can and often do submit concurring or dissenting opinions.
Influence of the first decision
Once the opinion is issued, what impact would it have?
Advisory opinions of the ICJ are not binding and the court has no enforcement powers. However, they can have a big impact. Numerous advisory opinions have shaped the development of international law on the subjects presented. These include opinions on the legality of the threat or use of nuclear weapons; on reparations for injuries suffered in the service of the United Nations; on the legal consequences of the construction of a wall in the occupied Palestinian territory; on reservations to the Genocide Convention; and self-determination of the people of Western Sahara.
An ICJ decision on climate change could be the most authoritative statement to date on the obligations that international law places on states to control their greenhouse gas emissions. States that care about international law and international opinion – which are not all great States today, but many of them – would take this very seriously.
A growing number of national courts around the world are examining the issue of climate change and citing international agreements and court decisions in other countries. An ICJ opinion, if it came to the merits, would surely become the main authority to which these national courts would turn in formulating their own decisions.
A decision would also be reviewed by international human rights bodies and tribunals examining climate change and its impacts.
Such an opinion would also help guide the actions of companies seeking to be socially responsible and help activist and other shareholders to lobby companies that were not acting responsibly.
This column does not necessarily reflect the opinion of the Bureau of National Affairs, Inc. or its owners.
Michael B. Gerrard is Professor of Environmental Law at Columbia Law School and Faculty Director of the Sabin Center for Climate Change Law.