“Wise counsels may accelerate”: How the International Court of Justice could help fight climate change
By Tarun Gopalakrishnan
The United Nations General Assembly resolution requesting “ an advisory opinion of the International Court of Justice (ICJ) on the obligations of States in respect of climate change” is, in some ways, a surprising document. The main surprise is that it exists at all – international environmental law experts have noted that inviting a court into the politically-driven legally-averse realm of climate negotiations would represent a “paradigm shift,” or expressed doubts about whether such an invitation would result in an outcome helpful to vulnerable states or the world. Nevertheless, amid increasing frustrations with the UN Framework Convention on Climate Change (UNFCCC) process, the possibility of such a referral kept coming up. The question has now been formally asked.
Less surprising is the heart of the campaign to make the referral a reality. The resolution that was eventually sponsored by 133 nations originated with law students in the Pacific Islands. Island states are on the frontlines of the climate crisis and have a record of achieving outsize diplomatic outcomes despite limited resources using innovative tactics at climate negotiations. With near-zero responsibility for emissions, yet directly impacted by extreme weather as a new normal, they are unfortunately well-positioned to offer evidence of ongoing injury resulting from climate change. They are also willing to take risks for opportunities to motivate climate action.
There are risks. Consider the ICJ’s 1996 advisory opinion on the legality of the threat or use of nuclear weapons. On one hand, the Court found that the use of nuclear weapons is “scarcely reconcilable” with the requirements of international humanitarian law and that states have a general obligation to negotiate in good faith towards disarmament. However, it stopped short of finding that the use of nuclear weapons is fundamentally incompatible with customary international law, on the basis that there may be some conceivable (unspecified) survival interest that justified the use.
On one level, the Court protected the right of states to construct mutually binding obligations through explicit means, i.e., treaties. However, it missed an opportunity to critically examine the controversial status quo underpinning treaty negotiations at the time – a theory of global security premised on the ‘deterrence’ ensured by five nuclear powers. This meant that the unbalanced progress of negotiations – maximum pressure to limit proliferation but minimum pressure to disarm existing nuclear weapon states – was allowed to continue. Today’s nuclear landscape is replete with “arguments of unequal treatment, a muddling of the nonproliferation principle, and further recession of the disarmament goal.”
The climate question presents a comparable dilemma – balancing the twin imperatives of urgent decarbonization and resolving the unequal consumption of the carbon budget. The first question referred by the resolution is – “what are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations?” Ideally, the Court’s opinion would re-emphasize that responsibility flows from cumulative emissions, which is a scientific fact noted in the preamble to the UNFCCC and multiple reports of the Intergovernmental Panel on Climate Change. That fact is often treated in negotiations as an anachronistic distraction, because it necessitates historically large emitters acting at a much greater speed and scope than they are willing to.
Another key pitfall for the Court to avoid would be picking between the two temperature thresholds in the Paris Agreement. The Agreement commits Parties to “holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels.” The latter threshold requires the world to reach net zero emissions by 2050. If responsibility flows from cumulative emissions, nations that have been contributing to the problem since the early 1900s should decarbonize well before 2050. This is currently not the state of affairs. The most generous interpretation of the net zero deadlines published by major emitters – US and the European Union (2050), China and Russia (2060), and India (2070) – is that they are in line with the 2°C threshold. Particularly for large developing countries, that trajectory represents an acceptable trade-off between climate ambition and economic development.
This is of limited consolation to small island states, who fought successfully for the inclusion of the 1.5°C threshold in the Paris Agreement. If the globe breaches it – which looks highly likely – the loss and damage borne by island states will need to be addressed. This is the probable motivation behind the second question referred to the Court – “What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to […] in particular, small island developing States?”
It is difficult to see how the Court can approach this question in anything other than the most general terms since successive decisions at the Conference of the Parties to the UNFCCC have diligently avoided any specification of quantifiable responsibility. One possible source of hope is the Court’s 2018 decision in a dispute referred to it by Costa Rica and Nicaragua – the first time it quantified compensation for environmental damage. The legal terrain in this referral is very different – Costa Rica and Nicaragua specifically asked the Court to decide on the quantum of compensation, which is not the case here. Nevertheless, if the Court can draw on estimates of the cost of climate change to climate-vulnerable nations to guide negotiations on the newly established loss and damage fund, it would count as significant progress.
Finally, the Court could strengthen the core of the Paris Agreement – the nationally determined contributions (NDCs), i.e., self-determined national climate targets. Countries are required to submit NDCs every five years but are not obliged by the Agreement to adhere to these targets. Hence, there is a massive implementation gap between countries’ NDCs and actual policies - efforts in courts around the world are pushing to narrow this gap by holding governments accountable to their own citizens for targets that they publish. The Court cannot make states legally responsible to other states for anything not explicit in the Paris Agreement. It could, however, construct legal reasoning that domestic courts could borrow from to hold their own governments responsible for achieving published national climate targets.
Tarun Gopalakrishnan is a Predoctoral Research Fellow at Climate Policy Lab at The Fletcher School.