Can International Law Save the Planet from Climate Change?

March 24, 2023 | 3:05 pm
L. Delta Merner
Lead Scientist, Science Hub for Climate Litigation

For the first time, the International Court of Justice (ICJ)—the world’s highest court—may be ruling on climate change. Ranging from human rights violations to border disputes, conflicts among nations are often complex and contentious. When diplomacy needs backup, countries turn to resolve their disputes at the ICJ, the United Nations’ principal judicial organ, to set the tone for international law.

On March 29, the UN General Assembly will vote on a resolution to bring climate change before the ICJ. Doing so would be a critical step forward, especially in light of the new UN Intergovernmental Panel on Climate Change (IPCC) summary report, which made it clear that the world is at a critical crossroads with a rapidly closing window to act.

But what is the ICJ, and how can an opinion from this court, known as an advisory opinion, pave a pathway for climate justice?

What is the International Court of Justice?

Also known as the World Court, the ICJ is responsible for settling legal disputes among countries and providing advisory opinions on legal questions referred to it by the UN. It is composed of 15 judges from different countries who are elected by the UN General Assembly and the Security Council for nine-year terms.

The ICJ functions as a judicial body and an advisory body. As a judicial body, it decides legal disagreements among states, including boundary disputes, territorial claims, and diplomatic conflicts. As an advisory body, the court provides legal opinions on international law questions. Since the UN was founded in 1945, the ICJ has played a significant role in developing international law, and its decisions have contributed to resolution of some of the world’s most complex legal disputes.

What is an advisory opinion?

An ICJ advisory opinion is a legal opinion in response to a request from the UN for guidance on a legal question. It is not a decision on a dispute among nations, but rather a nonbinding legal opinion on a specific question of international law. Advisory opinions do not favor any party, but they carry significant weight and influence international law.

For instance, the ICJ’s landmark 1996 advisory opinion on the legality or threat or use of nuclear weapons ruled that the use of nuclear weapons would generally be contrary to the rules of international law applicable in an armed conflict. The opinion did not lead to an immediate prohibition on the use of nuclear weapons, but it did contribute to a shift in the international debate on nuclear weapons, which intensified pressure on nuclear-armed states to comply with international law and pursue disarmament efforts. It also played a role in the development of the Treaty on the Prohibition of Nuclear Weapons, which bans countries from developing, testing, producing, possessing, using or threatening to use nuclear weapons. The impact of an ICJ advisory opinion on climate change could be similarly significant and help shape international law and policy on this critical issue.

The ICJ and climate change

More than 115 countries have pledged to vote yes next week to ask the ICJ to issue an advisory opinion on climate change. Spearheaded by the Republic of Vanuatu, they want the court to clarify how existing International Law can strengthen governmental action on climate change, protect public health and the environment, and save the save the Paris Agreement. This advisory opinion request is so powerful and strategic because it works with existing laws and agreements to strengthen and generate inclusive climate action.

Originally initiated by Vanuatu youth leaders and now led by Indigenous lawyers at Blue Ocean Law, the resolution for an advisory opinion calls to uplift the protection of fundamental human rights for present and future generations in the face of catastrophic climate change-related impacts that threaten the very existence of countries, peoples and cultures. An island nation in the southwestern Pacific Ocean, Vanuatu led an inclusive process to ensure global participation in this request. It spent years building an international coalition to participate in drafting the resolution for an advisory opinion and engaged with more than 1,500 civil society groups from 130 nations. Nations large and small contributed to the current resolution, including Australia, one of the world’s largest fossil fuel exporters, and the United Kingdom.

Remarkably, the United States has not supported Vanuatu’s resolution, despite that fact that it directly complements global efforts to address climate change and strengthen the process to secure loss and damage funds. Given low-income countries bear the brunt of climate impacts caused primarily by emissions from the United States and other richer nations, the US government should step up to be part of the solution.

Even without US approval, an ICJ advisory opinion based on the resolution has the potential to modernize the fight for climate justice by helping protect the most vulnerable nations as well as help incorporate intergenerational equity more robustly in climate litigation, a growing movement for climate justice.

This month’s UN vote is just the first step, but as the world increasingly understands the connections between climate change and human rights, there’s an opportunity for our political systems to stand up and truly address the crisis.