Top UN court says countries must act on climate change

The International Court of Justice called global warming an “urgent and existential threat” at a closely watched case in The Hague. The following is the report from the Earth Negotiations Bulletin from the International Institute for Sustainable Development.

International Court of Justice Advisory Opinion on the Obligations of States in Respect of Climate Change

The International Court of Justice (ICJ) released its much awaited advisory opinion on States’ obligations with respect to climate change and the legal consequences for failing to live up to these obligations. Civil society representatives were quick to laud the opinion, which responds to a request by the UN General Assembly, as it “lays a path to climate justice.”

At the outset, the ICJ advisory opinion underscores the role of the Intergovernmental Panel on Climate Change in providing best available science. The Court recalls that every increment of global warming matters and even a warming of 1.5°C is not considered safe for most nations, communities, ecosystems, and sectors. Pointing to decisions adopted by the Conference of the Parties serving as the Meeting of the Parties to the Paris Agreement (CMA), the Court considers the 1.5°C threshold to be the agreed primary temperature goal under the Paris Agreement.

With regard to obligations under the Paris Agreement, the Court emphasizes that the mere preparation of nationally determined contributions (NDCs) is not sufficient, their content is relevant to determine compliance, and this content is not entirely up to parties’ discretion. The advisory opinion underscores that parties to the Paris Agreement have to do their utmost to ensure their respective NDCs represent the highest possible ambition, with the standard depending on aspects such as the countries’ contribution to cumulative greenhouse gas (GHG) emissions and their national circumstances. The Court also specifies that NDCs must, when taken together, be capable of achieving the temperature goal and the purposes of the Agreement and that parties have an obligation to undertake best efforts to achieve their NDCs. The judges further highlight obligations related to adaptation and cooperation in the form of finance, technology transfer, and capacity building.

Importantly, as this was subject to debate during the hearings, the Court emphasizes that States’ legal obligations are not only derived from the UN Framework Convention on Climate Change (UNFCCC), Kyoto Protocol, and Paris Agreement. In their advisory opinion, the judges consider various other sources of “most directly relevant law,” including the UN Convention on the Law of the Sea (UNCLOS), human rights law, and customary international law.

They emphasize that compliance with the climate treaties is not necessarily sufficient to fulfill other relevant obligations. Citing the International Tribunal for the Law of the Sea, the ICJ notes, for example, that UNCLOS parties are under an obligation to take all necessary measures to reduce and control marine pollution—under which GHG emissions fall—with the ultimate aim of preventing its occurrence altogether. The advisory opinion further specifies that obligations under customary international law are the same for all States and exist regardless of whether a State is a party to the climate change treaties—a key point, considering the US’ withdrawal from the Paris Agreement.

The Court specifies that State responsibility for breaches of obligations may be invoked by any State under customary international law. It underscores that the failure of a State to take appropriate action to protect the climate system from GHG emissions—including through fossil fuel production, fossil fuel consumption, the granting of fossil fuel exploration licenses, or the provision of fossil fuel subsidies—may constitute an internationally wrongful act which is attributable to that State. It also notes that a State may be considered responsible for not taking the necessary regulatory and legislative measures to limit the quantity of emissions released by private actors under its jurisdiction.

While the Court makes no pronouncement on the responsibility of individual States, which has to be assessed on a case-by-case basis, the advisory opinion lays out the remedies that are available. It highlights that breaches of States’ obligations may give rise to “the entire panoply of legal consequences provided for under the law of State responsibility,” including non-repetition, restitution, and compensation.

The advisory opinion also highlights that:

• the human right to a clean, healthy, and sustainable environment is essential for the enjoyment of other human rights; and
• once a State is established, the disappearance of one of its constituent elements would not necessarily entail the loss of its statehood, which is important for small island States whose territorial integrity is threatened by sea level rise.

Concluding the reading of the advisory opinion, ICJ President Judge Yuji Iwasawa emphasized that the questions posed by the General Assembly represent more than a legal problem: “they concern an existential problem of planetary proportions that imperils all forms of life and the very health of our planet.” He expressed hope that the Court’s conclusions will inform and guide social and political action to address the ongoing climate crisis.

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