The International Court of Justice will assess the legal obligations of states to protect current and future generations from climate change after countries backed a resolution at the UN.
The advisory opinion of the ICJ, the UN’s top legal body, could increase the risk of litigation for countries failing to adhere to existing international laws and treaties, while providing guidance to governments about what they must do to defend human rights and the environment from climate harm.
Countries approved the resolution by consensus without a vote, following a years-long campaign led by Vanuatu, the Pacific island nation that is at risk from rising sea levels. More than 100 nations co-sponsored the resolution but the US and China — the world’s largest two annual emitters — did not.
Delta Merner, lead scientist at the Science Hub for Climate Litigation at the Union of Concerned Scientists, said Wednesday’s decision at the UN General Assembly marked “a historic moment for international climate justice”.
The ICJ, which could take a year or more to deliver its findings, would “alter how we think about emissions responsibilities and accountability, including corporate accountability”, and “reinforce” the legal rationales for “thousands of climate litigation cases currently filed”, she added.
Addressing the UN, its secretary-general António Guterres said the ICJ’s opinions had “tremendous importance and can have a longstanding impact on the international legal order”, though they are not legally binding.
Support for what began as an initiative led by Vanuatu students has grown over the past year as many countries have suffered devastating extreme weather events. With emissions remaining stubbornly high, the world’s top climate scientists recently warned that average temperatures were likely to reach 1.5C above pre-industrial levels in the near term.
Although activists have turned to the courts to force both governments and companies to make faster cuts to emissions, officials said the ICJ opinion was not seen as a route to new lawsuits but a way to give governments greater clarity on their responsibilities.
Ralph Regenvanu, Vanuatu’s minister of climate change, said the initiative was “not directed at any [individual] state”, nor was it “intended to blame, shame or seek any judgment”.
However, experts said it could affect climate lawsuits more directly. Lavanya Rajamani, professor of international environmental law at Oxford university, who supported the Vanuatuan initiative, said the findings could “support national and regional climate litigation” by identifying “a standard or benchmark for what is expected of states”.
Wednesday’s decision comes months after a coalition of small island states, including Vanuatu and Antigua and Barbuda, asked another intergovernmental body for an opinion on countries’ legal obligations to protect ocean environments from climate change.
Findings from the International Tribunal for the Law of the Sea are expected to be delivered in 2024, before the ICJ concludes its work.
Payam Akhavan, a lawyer supporting the oceans initiative, said the tribunal’s opinion could result in legal challenges against countries, but a “more important” outcome would be using it to apply pressure on big polluters at COP climate summits and “put some teeth into the Paris agreement”.
The ICJ’s work will include a particular focus on small island nations’ vulnerability to climate change. At last year’s COP27 summit, countries agreed to the creation of a “loss and damage” fund to help the most vulnerable nations.
Regenvanu said the ICJ opinion may have “implications” for the creation of the fund.
Also on Wednesday, the European Court of Human Rights held a hearing in a case centred on whether Switzerland must do more to reduce greenhouse gas emissions in order to protect its citizens’ rights.