The 2022 United Nations Climate Change Conference, also known as COP27, is yet another attempt by world leaders to tackle the issue of climate change. The yearly meeting will be held in Sharm El-Sheikh, Egypt, and will be attended by approximately 200 countries.
The question remains whether this conference will result in any constructive change with regard to climate change, or will it be another greenwashing event? Indeed, despite the disastrous effects of climate change, little progress has been achieved in tackling it on an international scale. Although several treaties and summits exist, citizens and civil society organizations are now turning to courts to combat this issue.
One such example is found with the pacific nation of Vanuatu which is leading the charge in obtaining legal advice from the International Court of Justice (ICJ) on protections needed due to the detrimental effects of climate change. It is important to assess the extent to which the benefits of an advisory opinion by the ICJ on this matter outweigh the risks. This can be done by looking at the ICJ’s relationship with national courts, previous advisory opinions by the ICJ, and the focus of the question which is presented to the ICJ. Indeed, this question presented to the ICJ should emphasize the link between climate change and its effect on human rights.
ICJ—the principal legal organ of the United Nations— is seen as “first among equals” within the international judicial system, rendering its judgments to have “great legal weight and moral authority.” Its advisory opinion plays an important role in both setting precedents for national courts and inspiring political mobilization among the general populace. Regarding the former, an opinion clarifying the responsibility of states under international law would give national and regional courts administering climate change cases against corporations and governments a foundation to rely on.
This is especially pivotal given the recent increase in climate change litigation cases brought forth by private citizens and NGOs who are becoming increasingly disillusioned with their governments. As of July 2020, there have been approximately 1550 cases filed in 39 countries. Although 77% of the cases were filed in the US, there is an upward trend of cases filed in Latin America, Asia, and Africa. Thus, a helpful advisory opinion by the ICJ could result in initiating an “international public consciousness” on the urgency of climate change and could prompt the public to act.
It is important to keep in mind that the ICJ does not possess any mechanism for the enforcement of its rulings, and rather relies on states. This drawback, however, does not affect this case as the intention of the advisory opinion is not to place blame on a certain state but rather provide non-binding legal advice. In fact, this is in line with the Paris Agreement which is both “non-adversarial and non-punitive,” allowing states to set their own goals through the Nationally Determined Contribution (NDC). Moreover, differing from the contentious opinion case which only applies to states involved in the dispute, an advisory opinion allows inputs from all state parties, capturing collective state interests.
Although the ICJ has not taken on a climate change case before, it does have experience with environment-related cases underscoring its ability to handle complex scientific information. Indeed, the Threat or Use of Nuclear Weapons advisory opinion of 1996 was a monumental case of international law where the ICJ ruled that there was no law prohibiting the use of nuclear weapons as long as it complied with humanitarian and self-defense laws.
An important aspect of obtaining an advisory opinion is formulating a question that is put forth to the ICJ. In this case, Vanuatu would develop a question to be voted on by the UN General Assembly; it would need a majority for the case to be referred to the ICJ. The phrasing of the question is key in that it should fall under international law and be specific enough that the court can give a pointed answer. Moreover, the question could fall under one of the three areas—state responsibility, loss and damage, and human rights.
State responsibility would ask the court to clarify state obligations to ensure that their greenhouse emissions do not severely affect other states. Loss and damage would be concerned with the issue of compensation for damage caused by climate change. Lastly, human rights would identify the state’s obligation to combat climate change due to its effect on human rights. Framing the question in accordance with the last area, human rights, would be most beneficial due to the precedence it could set for future litigation.
The link between climate change and human rights was recognized on 8th October 2021 by a UN Human Rights Council resolution which stated that “having a clean, healthy and sustainable environment is a human right.” Furthermore, the UN Committee on the Rights of the Child also declared that “failure to take measures to prevent foreseeable human rights harm caused by climate change…could constitute a violation of States’ human rights obligations.” This demonstrates the growing acceptance by courts and international institutions of the damaging effects of climate change on human rights: taking away the right to life, right to health, and right to housing among others.
Indeed, Urgenda v The Netherlands is a landmark case wherein 886 Dutch citizens asserted that the government had a legal duty to mitigate climate change. Despite several appeals by the government, the Supreme Court upheld the decision and asked that Netherlands reduce its emissions by at least 25% in comparison to 1990 levels before 2020. The significance of this case and its potential replication in other countries was emphasized by Michelle Bachelet, the UN High Commissioner for Human Rights. Thus, if the ICJ’s advisory opinion clarifies the state’s responsibility on mitigating climate change due to its effect on human rights, it would set precedent for national courts making replication of Urgenda v The Netherlands easier.
In addition to providing national courts a basis for litigation, an advisory opinion highlighting the human dimensions of climate change would give climate-vulnerable states more leverage while engaging in international climate negotiations. Specifically, it would oblige states to have climate targets that are in line with international human rights standards and also entitle “victims of human rights violations” to some compensation. In the court, violations considered could be loss of land or forced displacement, both of which could warrant reparations. Indeed, this goes back to John Locke’s theory of natural rights wherein human beings are born with certain fundamental rights such as that of life, liberty, and property that the government has a responsibility to protect. Therefore, climate change’s effect on the right to life—through dangerous weather-related events—or on the right to property—through the displacement of people’s homes—requires government intervention.
Furthermore, this reliance on courts is especially essential as international climate negotiations at times result in a deadlock, with no incentive for a state to cooperate unless they are experiencing a tangible risk from the climate crisis. In fact, an example is the ongoing debate between developed and developing countries on who has contributed the most to global warming and how the cost of mitigating climate change should be divided. Developing countries argue that the industrialization undertaken by the developed countries over time has led to the accumulation of greenhouse gasses (GHGs) in the atmosphere, transferring the responsibility of tackling global warming onto them. Developed nations, however, argue that current polluting nations—such as India and China—should cut down on their emissions to play their part.
This illustrates the collective action problem wherein it would be advantageous for nations to cooperate to alleviate climate change, but they do not do so and instead expect each other to take charge. Thus, holding governments and corporations accountable through judicial means has become an attractive option. Climate-vulnerable countries like Vanuatu have a lot to gain from a favorable ICJ ruling. An ICJ’s advisory opinion has the ability to establish the link between human rights and climate change, potentially allowing national courts to litigate based on this precedent. However, given all the benefits, it is important to underscore that if nations, especially powerful ones in the global North, do not comply with the ICJ’s ruling, it would ultimately harm the legitimacy of international law.
