Rising Seas, Rising Stakes: The Case for an International Court of Justice Advisory Opinion 

March 24, 2023 | 6:18 pm
Shaina Sadai
Hitz Fellow

Heat-trapping emissions are continuing to rise while the gap between what is needed to keep Paris Agreement goals in reach and adapt to ongoing climate impacts is ever-widening. This dire state of affairs is just one of the reasons why the Republic of Vanuatu and more than 100 other nations have drafted a resolution asking the International Court of Justice (ICJ) to issue an advisory opinion on climate change.

The Vanuatu-led effort, which was initiated several years ago by law students at the University of the South Pacific, is now coming to fruition. On March 29, the UN General Assembly will vote on whether to support Vanuatu’s resolution. If successful, the vote will invite the ICJ to issue an advisory opinion to clarify how existing international laws can be applied to strengthen action on climate change. Such an advisory opinion would be a major step forward in understanding how to use the courts to promote climate justice and human rights

My research looks at issues of climate justice internationally, particularly as they relate to sea level rise and the Paris Agreement. An ICJ advisory opinion could clarify many of the climate justice issues my work identifies.  

Let’s take a look at the questions a climate advisory opinion would answer. 

Protecting the climate for current and future generations 

The island nation of Vanuatu and a core group including 17 other countries have been working over the past few months to draft the resolution inviting the ICJ to issue an advisory opinion. In an effort to be as inclusive as possible, they invited all nations to participate in the drafting process. The final resolution, which they recently released, includes a list of current human rights and climate change documents, including the Paris Agreement and UN Framework Convention on Climate Change, for the ICJ to consider in its advisory opinion as well as two questions they would like the court to answer. Here is the first question: 

“(1) What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations?” 

An answer to this question would help governments (referenced in the question as “States”) understand what they need to do to protect the climate and environment for all people, those living today as well as future generations. The Paris Agreement spells out a process by which nations try to prevent worsening climate damage. In this process, governments submit pledges, called nationally determined contributions, which detail what they plan to do to reduce heat-trapping emissions, transition to renewable energy, adapt to changes, and more. However, there is no standard format for these pledges to take, and there are no penalties for nations who fail to achieve everything stated within them. Instead, their commitment is to keep participating in the process with the shared hope that, when taken together around the world, these pledges will be sufficient to meet the long-term temperature goal of holding the temperature rise to less than 2 degrees Celsius (3.6 degrees Fahrenheit), and preferably less than 1.5 degree C (2.7 degrees F) above the preindustrial average. The ICJ’s input could be useful in determining how effectively nations are implementing the Paris Agreement and ensuring that they do it in a way that centers human rights.  

Currently, the pledges collectively are not sufficient and most nations have not strengthened them over time, which they are supposed to do. The gap between what the combined pledges would commit nations to do and what is needed to limit warming is a source of concern for many communities and nations that are hardest hit by climate change. It is particularly an issue for future generations, because reducing emissions in the near term rather than relying on overshooting the targets and fixing the issue later is an issue of intergenerational equity and distributive injustice. An advisory opinion could help guide courts that are ruling in climate litigation cases on whether nations’ commitments under the Paris Agreement are strong enough, and what would be needed for them to center human rights and intergenerational justice. 

Special considerations for island nations 

Here is the resolution’s second question, which has two components: 

“(2) What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to: 

(a) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change? 

(b)  Peoples and individuals of the present and future generations affected by the adverse effects of climate change?” 

The first part of the second question is asking what legal consequences exist for nations that have harmed the climate or environment, particularly when that harm has been suffered by other nations that are disproportionately impacted by these changes. Importantly, this question highlights island nations’ special considerations as well as the role geography plays in climate impacts. Island nations, particularly members of the Alliance of Small Island States, have contributed virtually nothing to global heat-trapping emissions, yet are disproportionately threatened by sea level rise.  

Justice for future generations 

The second part of the second question requests the ICJ to provide guidance on the consequences for nations that damage the climate and environment and harm current and future generations. People who are currently experiencing the harmful impacts of climate change are trying to adapt to the changes and deal with the fallout when those changes lead to loss and damage. International law was developed largely before climate change was an issue anyone was thinking about, and so it can be very unclear how laws apply to adaptation and recovery after damage. Both adapting and recovering cost money. Who pays is an open question and ongoing conversation. The advisory opinion could help courts around the world understand how to address questions of adaptation and loss and damage in a way that centers human rights.   

The inclusion of future generations in this question is critically important. Sea levels will continue to rise for hundreds of years from just the heat-trapping emissions that are happening today, and once they rise the levels will remain that way for thousands of years. My own research shows that this is an issue of distributive climate injustice, meaning an impact that plays out in unjust ways over space and time. When taken together, parts a and b of this second question Vanuatu’s coalition submitted to the ICJ show that climate change impacts, such as sea level rise, will be a particular concern for future generations in communities with geographic vulnerability to climate change.  

There is a real concern that some islands could become fully submerged as sea levels rise. This raises issues of recognition justice, including whether a nation that has lost all of its territory can still be considered a state and hold a seat in the United Nations and where and how its people may migrate to escape climate damages. The ICJ advisory opinion could clarify what happens under these circumstances and address what obligations nations that are causing heat-trapping gas pollution have to people who are shouldering this burden already, as well as the people who will eventually experience these impacts long into the future. Such clarity would help promote human rights and intergenerational justice. 

Looking ahead 

Climate change will continue to play out over the coming centuries, impacting both current and future generations. Increasingly we see climate litigation cases asking courts to rule on nations’ obligations to dramatically reduce the pollution that causes climate change and assist in upholding the human rights of people around the world harmed by climate change. Law students from the Pacific Islands started the journey to get the ICJ to issue an advisory opinion on climate change, and the nation of Vanuatu along with 17 other core group members have worked tirelessly to push this initiative all the way to the UN General Assembly. This is a promising development in working to promote climate justice and human rights that all nations should support. To show your support for the resolution, please sign this petition and spread the word on social media about this incredibly important work.