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What legal obligations do states have to fight climate change? Should high-emitting countries be held responsible for the harm they’ve caused? And should states safeguard the climate for future generations?
The international court of justice (ICJ) is considering similar questions to these in hearings ahead of issuing an advisory opinion on the obligations of states concerning climate change. Over the next two weeks, the court will hear statements from 98 countries.
The ICJ is the principal judicial organ of the United Nations and is concerned with states. It is not to be confused with the international criminal court (ICC), which prosecutes individuals. Both courts are based in The Hague, Netherlands.
Unlike court judgements, advisory opinions are not binding under international law. Yet, they can be instruments of preventive diplomacy and peace.
Often, people associate courts with a solely reactive approach to disputes and reparation of harms. For the ICJ this has meant, for instance, a 2018 order for Nicaragua to compensate Costa Rica after it damaged rainforests and wetlands in an unlawful incursion.
But courts can also play a critical role in preventing mass violations of human rights and injustices in the first place. For the ICJ, this might involve ruling that states have obligations to carry out due diligence before the approval of a new mine or dam. To fully realise our human rights, the ICJ must take this sort of preventive approach to climate change.
The ICJ faces a pivotal choice. It can either address climate change narrowly and reactively, or it could examine state obligations from a broader perspective.
That broader perspective might find that states are obliged to take full stewardship of the environment for both present and future generations. This would go beyond global climate change agreements.
The problem currently is that certain state actions (and inactions) may be considered sufficient under the UN’s Paris agreement, but that does not mean those states are complying with their duties to tackle climate change under international human rights law. Climate change and ecosystem degradation can, of course, violate a wide range of human rights. If the ICJ were to legally clarify that states do have climate obligations that go beyond the Paris agreement, that would represent a significant step forward in international law.
There are some precedents. For instance, the international tribunal for law of the sea (Itlos), through a recent advisory opinion of its own, has already recognised that greenhouse gas emissions are a form of marine pollution. States, it says, have specific legal obligations to address such pollution under the UN convention on the law of the sea.
The ICJ would also be building on the pioneering ideas of one of its former judges, Christopher Weeramantry of Sri Lanka. He argued that humanity is not in a position of dominance but is a trustee of the environment and that this carries weight as international customary norm.
Listen to scientists and traditional knowledge holders
Although some courts worldwide have used findings from the IPCC (a global scientific advisory body) in their climate-related rulings, these findings are yet to play a major role in the ICJ. However, the IPCC was explicitly mentioned in the UN general assembly resolution requesting the advisory opinion, and the court now has the opportunity to elevate these critical insights.
It should also factor in the IPCC’s less well-known sister organisation, the Intergovernmental Platform on Biodiversity and Ecosystem Services (Ipbes)). Unlike the climate panel, the biodiversity platform weaves together science, practical and traditional knowledge-backed insights.
Peace with nature
Another way the ICJ can foster prevention is to focus not only on the symptoms of climate change and ecosystem degradation – the hurricanes, the enforced migrations and so on – but on their root causes.
This includes issues like inequality. After all, small island states such as the Seychelles face disproportionate impacts from climate change, despite doing very little to cause it. At the UN general assembly, the representative of Seychelles argued that the ICJ’s advisory opinion can help put a spotlight on the obligation of states to ensure that people in all countries have a right to a healthy environment.
This preventive approach can help foster peace with nature – the theme of the 2024 UN biodiversity conference – and thereby peace among people. This would set a powerful example for other courts, like the human rights courts of Europe, Africa and the Americas. It could inspire them to specify international and regional obligations in a way that promotes environmental justice and peace.
Collective action for future generations
The court should also take seriously the concerns of future generations. There is a vibrant social movement aiming to advance ambitious, rights-based societal action to address the root causes of planetary challenges. Spearheaded by the Pacific Islands Students Fighting Climate Change, this campaign has united youth and children civil society organisations, nature conservation and human rights groups, and other groups forming the Alliance for a Climate Justice Advisory Opinion. The Vanuatu government added its support to this call through its leadership and collaboration within the wider UN membership.
The passing of the UN general assembly resolution requesting the ICJ’s advisory opinion is in itself an achievement showing that the ICJ is not solely the domain of senior international lawyers. Instead, it can become an intergenerational space where vibrant social movements can also contribute to transformative international law.
If the ICJ does take a preventive and systemic approach, it would be a turning point for global intergenerational and interspecies justice and peace. The world now waits to see whether the court will seize this critical opportunity.
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Dr. Claudia Ituarte-Lima receives funding from the Prevention Project, housed at the Center for Human Rights and Global Justice of the School of Law at New York University, as part of a collaboration with the Raoul Wallenberg Institute. She also receives funding by the Swedish Research Council for Sustainable Development for project Environmental Human Rights Defenders (2022-697 01684) and by the Swedish Environmental Protection Agency for project Protecting Biodiversity through Regulating Trade and Business Relation (01003777). Dr. Ituarte-Lima serves as Director of the Global Network for Human Rights and Environment. The author would like to thank Mikhal Shachar and Dr. Britta Sjöstedt for comments to an earlier version of this article.
