Is it time for the International Court of Justice to give its opinion on climate change?

October 8, 2015

Posted by: Frances Lawson

Between 17th and 19th September 2015, lawyers from around the world converged on London for a 3-day climate change symposium hosted and organised by King’s College London. In light of the recent Dutch Urgenda case (see earlier post on that subject), one of the underlying themes of the symposium was the potential for the far greater use of climate litigation in national courts as a way of driving forwards action both at that level, and in the international realm of the UNFCCC.

The symposium featured a keynote speech by Professor Philippe Sands QC at the Supreme Court which outlined his shifting views on the role of international courts in advancing the climate change cause. Professor Sands explained how, when asked three years ago if he would support the small-island state of Palau lobbying the UN General Assembly for the International Court of Justice (ICJ) to give an Advisory Opinion on the responsibilities of States to ensure that their greenhouse gas-related activities do not harm other States, he answered in the negative. His scepticism seems to have stemmed from concern that the ICJ could fail to give an opinion, having skirted around similarly contentious questions in other cases, or worse still, deliver an opinion that was unhelpful in climate terms.

His opinion now appears to have shifted, and as one of the most eminent lawyers and scholars in the international environmental law field, the shift is an important one. It appears to be due in part to the courage of the Dutch courts in bringing climate change within their purview, and in part due to the overwhelming scientific evidence that climate change is not only occurring but represents a major concern for the international community. In addition, the frustrating and fraught progress of the UNFCCC negotiations means that there is a growing body of opinion that other avenues need to be explored in order for climate change to be given the legal attention that it urgently needs.

Occupying as it does a de facto pole position in the sprawling international legal hierarchy, the potential significance of the ICJ pronouncing on climate change obligations is difficult to overstate. As Professor Sands pointed out, there are numerous examples of where an ICJ judgment has heralded a watershed both in international legal discourse and in state practice. An ICJ judgment on, for example, the extent, scope and nature of states’ obligations to mitigate climate change, or as to what the scientific evidence does or does not require of states, could, more than any other single initiative, assist in decisively answering some of the questions that reverberate endlessly like squash balls around the negotiating rooms of UNFCCC meetings. Such a statement would also have a likelihood of contributing to further change in wider public attitudes and behaviour in respect of climate change, and could both inspire and facilitate domestic climate change litigation by setting out useful legal principles and parameters. In Professor Sands’ view, an ICJ pronouncement could also silence once and for all those who continue to doubt the climate science – “it is one thing for the IPCC to come to such conclusions as a matter of scientific opinion, but quite another for an international court to give them the authority of a judicial determination of the facts”. It may be a little optimistic to imagine that those who are strongly opposed to the scientific consensus will be so easily satisfied or silenced, but an authoritative legal endorsement of the science would undoubtedly be useful nonetheless.

The case for ICJ intervention is therefore persuasively put. The prospects for securing such an intervention, however, are more obscure. Professor Sands outlined the two types of intervention that could be sought. The first, a contentious case to litigate some of the key issues, remains a remote prospect. Only states have standing before the ICJ, and of the 194 Parties to the UNFCCC, only two – Cuba and The Netherlands – have accepted the ICJ’s jurisdiction to resolve disputes under the Convention. An equally significant challenge is the watery nature of the legal obligations in the Convention, which have been carefully drafted so as to make their enforceability as awkward as possible. A potent example is a footnote in the Convention to the Chapter entitled ‘Principles’ which states that such chapter titles are only to assist the reader, and by implication that the principles thereunder are not to be considered as legal principles that can be litigated and adjudicated upon.

A more auspicious avenue for exploration therefore lies in the potential for the ICJ to give an Advisory Opinion on key climate change contentions. The UN General Assembly and other specialised agencies such as the WHO are empowered to request the ICJ to give an Advisory Opinion, a request that is normally acceded to. Professor Sands ventured that the ICJ could then open up its rules of procedure to allow non-state actors to participate in the advisory opinion process.

Having made the case so convincingly and eloquently for such an Advisory Opinion, the only topic omitted from Professor Sands speech was a road map to its achievement. The UN General Assembly is unlikely to instigate such a request of its own motion for the foreseeable future. Only a sustained campaign from all those engaged and interested in the advancement of climate change law is likely to trigger such a request. In this regard, the legal community arguably has a vital role to play. On this vitally important issue, it is time for international lawyers with environmental convictions to move beyond analysing and discussing into the realm of influencing and lobbying on the international stage. A request for an Advisory Opinion on essential climate change contentions will not be achieved in a short timeframe. However, whether it becomes a reality at all depends on taking the idea, for which Professor Sands deserves great credit, out to the very audience that needs to hear it most; those in a position to bring about its fulfilment.

The full text of Professor Sands’ speech at the Supreme Court can be found here

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