Courts May Be More Effective on Climate Action than the UN

Countries will soon argue before the International Court of Justice in the Hague about their legal obligations to address climate change. The oral hearings on nations’ obligations could prove more consequential for climate action and justice than the United Nations annual climate summit that closes today.

Driven by a youth movement in the Pacific Islands and under the leadership of Vanuatu and a core group of other states, countries turned to the world’s highest court for answers to one of the world’s biggest problems: climate change.

Climate change lawsuits are making waves in courtrooms across the globe, shaping the conduct of states and corporations. More tribunals, domestic and international, are signaling that governments and companies must tackle the fossil-fueled climate crisis, and that polluters may be liable for escalating climate damages.

Last year, a unanimous UN General Assembly resolution asked the ICJ to clarify, in an advisory opinion, what states’ legal obligations are under international law to protect the climate system, and what legal consequences they face when failure to do so results in harm.

ICJ climate proceedings have seen unprecedented levels of participation—with a record 91 written submissions in the initial phase and 62 follow-up comments. As of publication, 98 states and 12 international organizations have registered to participate in oral hearings at the court Dec. 2–13. The engagement conveys the urgency and gravity of the climate crisis, and the importance states place on setting straight what international law requires.

The power of bringing climate issues to the ICJ lies as much in the unfolding process as in the anticipated outcomes. Both inside and outside courtroom, through initiatives like the Witness Stand and a global petition to the court, hearings are a platform for countries and communities. There, they can spotlight impacts they face and the responsibility of those countries whose action and inaction have fueled the crisis most.

The court’s opinion could prove an antidote to political inertia at COP summits. Clarifying states’ legal obligations doesn’t depend on negotiated outcomes that can be diluted, obstructed, or reduced to a lowest common denominator, as they have so often in three decades of UN climate talks.

And the ICJ isn’t confined to the text of the UN climate convention or the Paris Agreement. In identifying state duties, the court may look to multiple sources of law, including human rights treaties and longstanding customary international law.

The court’s pronouncements can have concrete effects. Although they don’t resolve a specific dispute between two or more states, advisory opinions carry weight as authoritative interpretations of binding law, and have been called tools of preventive diplomacy.

Following the court’s 2019 advisory opinion on the Chagos Islands, for example, the UK recognized Mauritian sovereignty over the archipelago, ending decades of what the ICJ called “unlawful” UK control.

The ICJ is one of three international tribunals asked for guidance on legal obligations to address the climate emergency. In May, the International Tribunal for the Law of the Sea issued a first-ever advisory opinion on climate change from an international court, stating that to protect oceans, countries must cut greenhouse gas emissions, which pollute the marine environment.

The opinion sets the bar for future court judgments and policy decisions. The Inter-American Court of Human Rights is also developing a forthcoming advisory opinion on climate, following hearings earlier this year in Barbados and Brazil.

The ICJ opinion, expected in 2025, will undoubtedly sway—but can’t stop—the rising tide of climate litigation. This year alone has seen momentous decisions. Take for instance a pivotal ruling by the European Court of Human Rights this April. In a major victory for the climate justice movement, the court found Switzerland’s failure to take rapid and effective action to tackle climate change violated its human rights obligations.

The decision exposes all 46 members of the Council of Europe, which are parties to the European Convention on Human Rights, to similar legal consequences if they don’t align their climate policies with what science shows is necessary to protect human rights.

In June, the UK Supreme Court ruled that decisions about new fossil fuel extraction must consider the emissions from burning the fuels produced. The judgment, issued in Finch v. Surrey County Council, follows a similar court ruling in Norway earlier this year that invalidated three oil and gas field development permits due to failure to consider the downstream emissions from the use of the oil and gas.

And on Nov. 12, a Dutch court ruled on the appeal from a historic 2021 judgment in the case of Milieudefensie v. Shell, which held that the fossil fuel producer has an obligation to cut greenhouse gas emissions across its operations and the use of its products, because of their climate and human rights impacts. While it rejected a specific target for those cuts, the appeal court affirmed that corporations have independent legal duties to reduce emissions.

The forthcoming legal opinions on climate change from the ICJ and Inter-American Court of Human Rights, should further clarify states’ obligations to curb drivers of the crisis—including through regulation of companies—and remedy mounting climate harms. They will also affirm the critical role of courts in enforcing ambitious climate action and accountability.

Recent developments indicate that strong advisory opinions from the ICJ and Inter-American Court may fuel rising backlash against judicial institutions from states inconvenienced by their legal conclusions. Unable to win on the facts and the law alone, governments and companies are increasingly attacking those who bring climate suits and the courts that hear their claims.

The answer isn’t to back away from those institutions but to back them up, and secure the rights of individuals, populations, and states to use them. Communities will continue to turn to courts to compel polluters to change course and pay up. Independent judiciaries are critical checks against the whims of changing political administrations and shifting corporate priorities.

We need to protect them—and those who have the courage to stand up to power and demand justice and a livable future for all.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Nikki Reisch is director of the climate and energy program at the Center for International Environmental Law, where she leads legal and policy effors.

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