On Tuesday, I was on my way to the Law Café to get myself a cappuccino, as usual. In the background, the TV was not playing the usual faculty announcements; instead, the feed was live from The Hague. 2 December 2024 marked the start of the oral proceedings at the International Court of Justice for the Advisory Opinion on the “Obligations of States in respect of Climate Change”. My coffee suddenly tasted sour; I remembered the coffee beans, the dairy production, and how it ties into everything else.
News has circulated about climate change reaching the benches of international and regional courts, but the complexity of procedures and outcomes can make it very inaccessible to those who do not specialize in law or sustainability studies. Yet, the result of these lengthy proceedings might very well change the way states combat climate change in the coming years.
From a small group of students to a major international court.
The story started in 2019. Twenty-seven students from the University of the South Pacific, which has campuses spread throughout various Oceanian countries, campaigned for support from Pacific states to request an advisory opinion from the International Court of Justice about climate change. In 2022, the Pacific Island Forum unanimously endorsed the initiative during its 51st meeting. Indeed, countries in the Global South, particularly Pacific Island states, are extremely vulnerable in the face of climate change: NASA predicted that their sea levels will rise by at least 15 centimeters in the next 30 years. Floods to the point of disappearance of these islands is no longer a far-fetched theory.
The campaign traveled from the Global South to the Global North as Vanuatu, on behalf of 17 other states, presented to the UN General Assembly a draft resolution on the request of an advisory opinion at the ICJ. This request was motivated by the impending threat of climate change and the need for clarification of international legal instruments currently in force, such as the UNFCCC and the Paris Agreement. The resolution was adopted by the UN General Assembly on 29 March 2023, and the request was introduced to the ICJ on 12 April 2023. Fast-forward to now, over a year-and-a-half later, and oral proceedings have just started.
“World’s biggest legal case”, “landmark case” at the “top UN court”: newspapers have been emphasizing how important the case is. If you are walking by the Law Café, hearing the complex statements of state representatives in passing, you might be wondering: what does it all mean? Why does it even matter, and will it change anything?
Explaining the buzzwords
The International Court of Justice is empowered to give advisory opinions at the request of a body authorized to do so by the UN Charter. This opinion specifically will answer a question formulated by the UN General Assembly, but the final opinion given is not binding, meaning that its recipients are not under a legal obligation to abide by it. However, given the weight and force of the Court’s opinions, it will most likely, if not definitely, shape international law, but the extent to which it will take shape remains to be determined. It will depend on the Court’s willingness to lay down concrete obligations in a realm where they are not scientific experts and where decisions heavily rest on the will of political actors.
The Court is concretely asked to determine, with regard to various international agreements, the obligations of states when it comes to protecting the climate system and the environment, as well as the legal consequences if they do not fulfill their obligations. The question is further specified concerning particularly vulnerable states and future generations – not just present ones.
These seemingly simple questions do not have a straightforward answer. The ICJ is not free to decide however it wants: it is constrained by international agreements and the central fact that the proper functioning of international law depends on the consent of states. In essence, the ICJ rules what states have themselves decided to do; they cannot be forced into complying with rules that they have not agreed to. Combating climate change requires states to cooperate and coordinate their action while taking into account the past so they can determine how to presently act to limit future impacts. Such cooperation is already in action; the issue is that what states must do exactly in the context of their agreements is unclear. If states are unsure of the roadmap to follow, it might become harder to hold them accountable for their failures down the line. There can be no climate justice if the lack of clarity in international law allows states to get away with actions that further endanger the planet.
What we know and what we don’t know
In the face of uncertainty, there are some things we can be sure of. Firstly, (most) states are legally bound by international agreements such as the 1992 UN Framework Convention on Climate Change (UNFCCC) and the 2015 Paris Agreement. The latter specifically lays down the target to limit global warming to 2°C, with ambitions to limit it at 1,5°C – an obligation which, nonetheless, remains somewhat unclear. Secondly, the ICJ has previously ruled on environmental responsibilities, albeit not as far-reaching as this present opinion. It has recognized the need for states to act in a way that prevents damage from being caused to the environment. Hence, there is a certain threshold that the ICJ cannot and will not go below. Thirdly, over 80 states and international organizations have submitted written comments, in addition to the scientific consensus around the action needed to combat climate change (and it has been announced that the judges have met with the Intergovernmental Panel on Climate Change), so there is a variety of opinions that the Court will take into account to balance interests. Lastly, the ICJ is not the only international court tasked with untangling the mess of climate justice: the Inter-American Court of Human Rights and the International Tribunal for the Law of the Sea, the latter of which has already delivered their opinion, have also received requests for opinions on climate change. The findings will certainly inform the ICJ, and some predictions might be gleaned from that.
Other than that, the outcome of the proceedings is fairly unpredictable. International law is not as clear-cut as words on paper, especially when language is always up for debate. The system also rests on the assent of states to bind themselves, so we cannot expect dramatic upheaval either. Despite these many tools, one might wonder if this panel of 15 judges will not have to craft their own needle in a haystack. All eyes are on The Hague and whether the Court will resort to legal creativity, revolutionize the current climate of international law, or deliver a more reserved opinion akin to their Opinion on the Legality of the Threat or Use of Nuclear Weapons. The final opinion is expected sometime in 2025 – no specific time frame has been announced.
Until then, all we can do is wait and see. Climate change is a question of ripple effects and not necessarily reaping what you sow: in the name of justice, those most affected must receive their dues. While we wait, we should place hope in one last butterfly effect before extinction.
If you want to follow the proceedings more closely, the Pacific Islands Students Fighting Climate Change and the World’s Youth For Climate Justice are among the organizations campaigning for this advisory opinion. You can always drop by the Law Café until 13 December to watch the hearings.
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