Bloomberg Law
Oct. 25, 2021, 8:00 AM

Taking Climate Change to the World Court

Michael B. Gerrard
Michael B. Gerrard
Columbia Law School

Pressure is growing to take a question about climate change to the International Court of Justice (ICJ)—the World Court—in The Hague. A decision, though not binding, could exert powerful influence on many national courts that could issue binding orders.

The past year has seen a rise in wildfires, heat waves, extreme precipitation, and flooding in many parts of the world. Scientists widely agree that climate change has made extreme weather events more frequent and intense.

After a brief downturn due to the pandemic, global greenhouse gas emissions have continued their upward rise. These physical conditions are adding to the global alarm over climate change.

The nations of the world agreed in Paris in 2015 that global average temperatures need to stay within 1.5 - 2 degrees Celsius (2.7 – 3.6 degrees Fahrenheit) above pre-industrial conditions. Then, in 2018 the Intergovernmental Panel on Climate Change showed that is not good enough; even 2 degrees Celsius risks catastrophic climate change, and we need to keep to 1.5 degrees.

Yet the pledges that nations have made add up to about 2.7 degrees Celsius. One study found that the only country whose climate actions are compatible with a 1.5 degree goal is The Gambia.

If Countries Don’t Act, People Will Turn to the Courts

If governments and parliaments are not taking the necessary actions, many people will look to the courts. More than 1,800 lawsuits have been brought about climate change. In the last several years courts in the Netherlands, Germany, France, Australia, Nepal, Pakistan, and Colombia have issued rulings demanding governmental action on climate change based not just on statutes enacted by legislatures, but based on constitutional provisions and human rights doctrines.

On Oct. 8, the U.N. Human Rights Council passed a resolution declaring a human right to a clean environment. The same day, the U.N. Committee on the Rights of the Child declared that “failure to take measures to prevent foreseeable human rights harm caused by climate change, or to regulate activities contributing to such harm, could constitute a violation of States’ human rights obligations.”

ICJ Has Yet to Hear Climate Change Case

No climate change case has ever gone before the ICJ, the principal judicial organ of the U.N. The ICJ can issue two kinds 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 seek such an opinion on climate change.

The U.N. General Assembly could request an advisory opinion. The entire membership would vote. It would probably require a simple majority of those present and voting (though under one theory a two-thirds vote would be needed). Either way, the vote would not be subject to veto by any country, unlike 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 just what question to ask.

Once the ICJ takes an advisory case, it invites all states to make written submissions. Any small state that wanted to take a position could readily find NGOs and academics that would be very happy to draft submissions for it at no charge. So the ICJ would be flooded with detailed briefs and factual statements.

The ICJ usually holds oral arguments if any state requests it, which would certainly be the case here. The states and some other organizations that made submissions may argue. So the arguments, which are held in front of all 15 judges, may become quite protracted.

The court renders its decisions by a simple majority vote of the members. Individual judges may and often do submit concurring or dissenting opinions.

Influence of First Ruling

Once the opinion is issued, what impact would it have?

Advisory opinions from the ICJ are not binding, and the court has no enforcement power. However, they can have great impact. Numerous advisory opinions have shaped the development of international law on the subject matters 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 convention on genocide; and the self-determination of the people of the Western Sahara.

An ICJ decision on climate change could be the most authoritative statement to date of the obligations that international law imposes on states to control their greenhouse gas emissions. States that care about international law and international opinion—which is not every major state today, but many of them—would take this very seriously.

An increasing number of domestic courts around the world are considering the issue of climate change, and citing to international agreements and to the decisions of the courts of other countries. An ICJ opinion, if it got to the merits, would surely become the leading authority to which these domestic courts would look in framing their own decisions.

A decision would also be looked to by the international human rights bodies and tribunals that are considering climate change and its impacts.

Such an opinion would also help guide the actions of corporations that seek to be socially responsible, and would assist shareholder activists and others in pressuring companies that were not acting in a responsible manner.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Michael B. Gerrard is a professor of environmental law at Columbia Law School and faculty director of the Sabin Center for Climate Change Law.

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