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It’s time for climate change to reach the International Court of Justice

FILE – People arrive at a displacement camp on the outskirts of Dollow, Somalia, on Sept. 21, 2022. In many Middle Eastern and African nations, climatic shocks killed hundreds and displaced thousands every year, causing worsening food shortages. With limited resources, they also are among the world’s poorest and most vulnerable to climate change impacts. (AP Photo/Jerome Delay, File)

For several decades, powerful governments and corporations have possessed detailed knowledge regarding the catastrophic risks posed by human-caused climate change. Yet, during those same decades, many holders of public and private power have aggressively resisted efforts to steer human technologies and activities to a less destructive, more sustainable path. Instead, they have doubled down on practices they knew would endanger the very ability of the atmosphere to support stable human existence. 

The consequences are now being felt throughout the world, especially within nations that are least responsible for causing climate change. Consider Pakistan, which this year suffered devastating floods likely exacerbated by climate change, but which has emitted fewer tons of greenhouse gases over its entire history than the United States emits in one year. Is it any wonder that youth today around the world are furious, in addition to being fearful for their futures?

In 2019, a coalition of law students from the University of the South Pacific took that anger and concern and channeled it into an inspiring and urgent campaign — an initiative to bring the issue of climate justice to the International Court of Justice (ICJ). Under United Nations procedures, a majority of member states in the General Assembly can request an advisory opinion from the ICJ, essentially calling on that tribunal to clarify states’ rights and responsibilities on matters of international significance. An advisory opinion from the ICJ could make clear that nations whose emissions of greenhouse gases contribute to serious harm in other countries have a duty under international law to cease or alter their harmful activities.

In quick order, the Pacific island students earned the attention and support of their governments and expanded the initiative into a global youth climate justice campaign. Recognizing that endless political negotiations through the United Nations Framework Convention on Climate Change have generated little progress, these actors believe climate change must become governed by law and justice, rather than merely politics and power.

The Pacific island students were inspired by the nation of Palau’s similar ICJ climate change campaign of 2011-2012. Representing Palau within the United Nations at that time was Ambassador Stuart Beck, a fearless lawyer and civil rights advocate who devoted most of his career to helping the people of Palau first achieve independence and then advocate for themselves and their environment on the international stage. Beck was gravely concerned about climate change and the existential threat it posed to Palau and other vulnerable small island developing states. 

Despite garnering substantial support from other nations for the ICJ campaign, Palau ultimately did not introduce its resolution due to considerable pressure from the United States. The draft Palau resolution studiously avoided raising issues of liability for past conduct, but the United States was concerned that recognition of a duty to avoid substantially contributing to climate change might open the door to financial responsibility for climate-related harms.

In the time since the Palau campaign and Beck’s passing in 2016, the need for clear, legally enforceable principles of climate justice has only become more urgent. Beck believed passionately that the powerful can be held to account and that the rule of law can help ensure a fair and sustainable world for all. 

Urged on by its youth climate justice advocates, the Pacific island nation of Vanuatu has now taken up the torch on the ICJ campaign, sharing last month a draft resolution to the General Assembly membership that is said to have the backing of over 100 countries — enough for the resolution to pass and for the ICJ to be formally asked to address fundamental matters of climate accountability under international law. 

Significantly, the draft resolution asks the ICJ not only to define “the obligations of States . . . to ensure the protection of the climate system,” but also to spell out “the legal consequences under these obligations for States which, by their acts and omissions, have caused significant harm to the climate system.”

All nations should support the Vanuatu effort to bring the rule of law to the climate change problem, even those like the United States that fear they may someday be on the hook for substantial monetary damages. Any advisory opinion released by the ICJ will be non-binding — at most, it will begin a lengthy process whereby reducing the threat of climate change and addressing its impacts come to be seen as governed by international rule of law. Whether or not climate damages liability becomes part of that body of law, such a transformation is essential for climate progress to be achieved. 

The surprise acceptance of “loss and damage” as an independent pillar of need for the most vulnerable nations during the recent climate negotiations in Egypt was seen by many as an important step forward. But contributions to the new “loss and damage” pillar are purely voluntary and the world’s nations failed to take any steps in Egypt to strengthen obligations to reduce greenhouse gas emissions or otherwise avert our current disastrous climate pathway. Those two shortcomings were not unrelated. In the end, despite the headlines, the most recent climate talks were just more of the same.

The world cannot endure more of the same. The time has come for the ICJ to join the cause of climate justice.

Douglas A. Kysar is Joseph M. Field ’55 Professor of Law at Yale University and faculty co-director of the Law, Ethics, and Animals Program at Yale Law School.

Tags Climate change COP27 climate summit International Court of Justice International law Politics of the United States Vanuatu

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