On July 23rd the International Court of Justice (ICJ) issued its long-awaited advisory opinion on climate change. This was in response to the United Nations General Assembly asking it to clarify states’ responsibilities under international law to prevent excessive release of greenhouse gases, and what consequences they face if they do not.
Last December, over the course of more than a week, nearly 100 countries presented the court with their views on the issue. Many of the most developed countries, which are responsible for the majority of greenhouse gas emissions, claimed that the only relevant international law instrument is the Paris Climate Agreement, with its loose and non-binding commitments. They also claimed that it is impossible to trace any particular harm to a specific country’s emissions, so in this case there should be no liability for damages at all.
The unanimous decision of the court was a clear rebuke of these positions. The ICJ decided that greenhouse gas emissions violate numerous principles of international law, and that emitting greenhouse gases is included in the general prohibition of causing harm via pollution. The court made clear that a healthy, sustainable environment is fundamental and necessary for the enjoyment of all other human rights.
The ICJ therefore declared that countries have to, “act with due diligence and use all means at their disposal” to prevent harm to the climate system. That’s in addition to the specific requirements of the Paris Agreement, and applies even to countries such as the United States that withdraw from or refuse to sign the Paris Agreement at all. The court also decided that in principle countries that do not take due diligence to curb their emissions can be liable to pay damages for harm caused by the changing climate.
But nearly at the same time as the ICJ released its ruling, the United States Environmental Protection Agency (EPA) released a proposal to repeal an earlier determination that greenhouse gases are harmful. Under this proposal, the United States would do away with any and all restrictions on greenhouse gas emissions. EPA Administrator Lee Zeldin was quoted as saying, “Today is the greatest day of deregulation our nation has seen. We are driving a dagger straight into the heart of the climate change religion.” In other words, the Trump administration is attempting to do exactly the opposite of what the ICJ said countries are required to do under international law.
In order for countries to take effective action, both its leaders and citizens must believe that climate change is truly a threat. They need to be convinced that the science behind climate change is objective and real, not politically tainted, and that ignoring the consequences of climate change in the hope that future science will develop a painless solution is imprudent and unwise. A decision by an organ of the highly politicized United Nations is unlikely to do that, and neither the ICJ nor any other international body has the ability to force countries to comply with its rulings. Even the threat of being held liable for potential damages hardly amounts to much since there is no effective way to carry it out.
So what is the solution? One tactic being tried is lawsuits in domestic courts attempting to compel governments to take their climate obligations more seriously. But while these judgments may be somewhat more binding in individual countries, they cannot provide a path towards coordinated, global action.
Political pressure may push governments to action, but this also risks making climate change a political football with policies shifting radically depending on who is in power. This is the opposite of what the ICJ attempted to achieve by declaring that combating climate change is an overarching imperative related to basic human rights.
We could wait for even more scientific proof, but science is always subject to new information and debate, and therefore can never produce certainty. If the data we already have isn’t enough to convince people to take action, it’s hard to see how more research will make a difference. And in the meantime, delay makes the problem worse.
So to what extent can international law be a tool to fight climate change? If international law is the answer, why are major greenhouse gas emitters such as the U.S. doing exactly the opposite of what it requires? If international law isn’t the solution, what is? Is there any other means of compelling a coordinated, international response to a global crisis? I’m anxious to hear your thoughts.