Will International Climate Law Change the International Legal Climate?
Introduction
On July 23rd, in a rare unanimous Opinion the International Court of Justice (ICJ) for the first time pronounced on the question if state failures to take climate action may constitute ‘an internationally wrongful act’. Although the ICJ Opinion is non-binding, it undoubtedly will profoundly impact climate litigation in a steadily growing number of lawsuits around the world. Initiated by the tiny Pacific Island nation of Vanuatu, the ICJ was requested to address two questions:
(1) what are the legal obligations of states under international law to protect the climate system and the environment from greenhouse gasses; and
(2) what are the legal consequences if, by their acts or omissions, they have caused significant harm.
The ICJ, in essence, opined that states must protect humans from the ‘urgent and existential threat’ of climate change. It found that states have binding obligations to protect the climate system, stemming from UN climate treaties, human rights law and other environmental treaties
but also from international law more generally. The latter includes the duty to prevent significant harm to the environment.
This was the first time that the ICJ ruled on the issue of climate change, but its Opinion comes in the wake of a body of climate judgments issued by international tribunals earlier this year. The International Tribunal for the Law of the Sea, the world’s highest court dealing with the oceans, concluded that governments must take measures to address greenhouse gas emissions. The European Court of Human Rights found that the Swiss government had violated its citizens’ human rights by not doing enough to address climate change. Most recently the Advisory Opinion 32/25 of the Inter-American Court of Human Rights ruled on the scope of the state obligations for responding to the climate emergency.
Immediately after its release, the Opinion predictably ignited both acclaim and critique. In this blog, rather than engaging in a debate predominantly concerned with doctrinal legal issues associated with state responsibility for climate harm, we focus on the Court’s approach in respect of four conceptual conundrums that pose obstacles to the resolution of international environmental cases such as these. Those conceptual intricacies are associated with what is widely referred to as the Anthropocene, i.e. the epoch in which Earth systems that are the public infrastructure for (human) life, including the climate system, as a result of local (oftentimes private) human activities, are damaged and destroyed globally, compromising the futures for generations to come.
A great deal has already been said and written about (environmental) law in the Anthropocene, but the most pressing concern probably is law’s apparent inability to reflect the systemic temporal, spatial and material entanglements that mark life in the Anthropocene. Indeed, law for its life-blood essentially still relies on four false dichotomies: human/nature, local/global, private/public and present/future. Not only do such dualisms defy scientific reality, law also often structurally privileges one over the other, formalizing a bias in favour of local, human, private concerns of present generations.
Climate litigation exposes this distorted legal imaginary in full glare, and thereby confronts the ICJ with the difficult dilemma either to resign to law’s a priori impotence to address a crisis of existential proportions, or to stretch international law’s conceptual foundations beyond what many may argue is teleologically feasible.
In its Opinion the ICJ appears to subtly distance itself from the aforementioned dichotomies that preempt the effectiveness of climate law, purposefully employing a more appropriate relational logic and vocabulary instead. Such a relational paradigm is espoused, inter alia, in para. 127: ‘Article 2 of the Biodiversity Convention defines “biodiversity” as comprising not only “the variability among living organisms from all sources”, but also “the ecological complexes of which they are part”, meaning their ecosystems.’ The Court concludes that, in certain instances, ecosystem protection measures may simultaneously operate as climate change mitigation or adaptation measures.
In similar vein and realistically, the ICJ emphasizes that law plays only a limited role, and that averting climate catastrophe requires full involvement and commitment of all regulatory agents at local, global, private and public levels (science, technology, markets, societies, as well as private individuals):
‘[environmental problems pose an] existential problem of planetary proportions that imperils all forms of life and the very health of our planet. International law, whose authority has been invoked by the General Assembly, has an important but ultimately limited role in resolving this problem. A complete solution to this daunting, and self-inflicted, problem requires the contribution of all fields of human knowledge, whether law, science, economics or any other. Above all, a lasting and satisfactory solution requires human will and wisdom — at the individual, social and political levels — to change our habits, comforts and current way of life in order to secure a future for ourselves and those who are yet to come.’ (para. 456)
In the remainder, we briefly explore how the ICJ intentionally and productively blurs the four dualisms mentioned that will otherwise continue to thwart the effectiveness of international environmental law.
1. The Humane/Nature Dichotomy
By assigning fundamental rights exclusively to humans, constitutional frameworks cement human/nature dualisms even though these directly undermine humankind’s chances of survival. Recent international acknowledgment of a human right to a clean environment goes some way towards correcting law’s anthropocentric bias, however, more faithfully reflecting factual entanglements between humans and nature.In the words of the ICJ: ‘[t]he right to a clean, healthy and sustainable environment results from the interdependence between human rights and the protection of the environment.’ (para 389).
The ICJ is adamant that protecting this right is an essential prerequisite for the enjoyment of all human rights (para 393). In language inviting comparison with academic references to ‘a safe operating space for humanity’, the Court underscores that ’the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn.’ (para. 153).
The ICJ confirms that international rights law obliges every state to prevent environmental harm, and confirms it’s status as customary international law. A small group of States (among them the USA and the UK) had argued that the only applicable international law was climate lex specialis, in particular the UNFCCC, the Kyoto Protocol, and the Paris Agreement. The ICJ unanimously rejected this lex specialis argument (paras. 162-171), noting that international human rights law, the climate change treaties and other relevant environmental treaties, as well as the relevant obligations under customary international law, inform each other.
That reasoning is informed by a scientifically sound holistic, integrated conception of the relationship between climate, humans and the environment, according to which the climate crisis is closely linked to the ecological crises more generally. Judge Charlesworth in her Separate Opinion elaborated on this, specifying procedural rights of access to information, public participation in decision-making and access to justice, in addition to clean air, safe and sufficient water, adequate sanitation, healthy and sustainably produced food, a non-toxic environment, healthy ecosystems and biodiversity, and a safe climate (para. 8).
The ICJ emphasizes that states must act in accordance with a ‘stringent’ standard of due diligence in respect of their obligations concerning the climate and the environment (para. 246). Crucially, this implies that states must apply the precautionary principle, exercise control over corporate actors, and conduct environmental impact assessments. (para 246)
2. Global versus Local
Unsurprisingly, the ICJ found that States should not be allowed to escape legal obligations for actions originating within their jurisdictions. The ‘duty to cooperate’ similarly serves to take the sharp edges off the global/local dualism:
‘This duty to co-operate is intrinsically linked to the duty to prevent significant harm to the environment, because uncoordinated individual efforts by States may not lead to a meaningful result. It also derives from the principle that the conservation and management of shared resources and the environment are based on shared interests and governed by the principle of good faith.’ (para.141)
In this spatial context the ICJ also addresses complex legal notions such as ‘reparations’, ‘restitutions’ ‘causality’, and ‘attribution’, a discussion which in view of its doctrinal technical nature we shall not explore further. Fundamentally, however, states thus have an obligation to compensate if it can be shown that the actions of a state resulted in harm to others. While the Court observes that restitution as reparation for damage suffered by states in relation to climate change could include ‘reconstructing damaged or destroyed infrastructure, and restoring ecosystems and biodiversity’ (para. 451), it does not elaborate on the substantive or procedural steps remedies at stake.
Vice-President Sebutinde specifies that this ‘may include such remedies as monetary compensation, reforestation, biodiversity recovery, coastal erosion prevention, disaster or debt relief, technological transfer and infrastructural rebuilding.’ (para. 12). Judge Bhandhari, in his separate opinion, also discusses different pathways for reparations.
3. the Public/Private Divide
One elephant in the room is that, climate commitments notwithstanding, many states still subsidize coal, oil or gas and issue drilling permits. Such states, supported by big industry, claim that international law does not impose specific obligations pertaining to the production of fossil fuels, including subsidies. The Opinion firmly lays that argument to rest, insisting that states are under a legal obligation to regulate private companies within their jurisdictions:
‘Failure of a State to take appropriate action to protect the climate system from GHG emissions — including through fossil fuel production, fossil fuel consumption, the granting of fossil fuel exploration licences or the provision of fossil fuel subsidies — may constitute an internationally wrongful act which is attributable to that State.’ (para. 427).
Similarly, the Court considers that the diffuse and multifaceted (private and public) nature of various forms of conduct which contribute to anthropogenic climate change does not preclude the application of the state duty to prevent significant harm to the climate system and other parts of the environment. This duty arises as a result of the general risk of significant harm to which states contribute, in markedly different ways, through the activities undertaken within their jurisdiction or control.
Although the ICJ does not further specify the conditions for constituting such an act, its findings provide additional ammunition for future challenges of authorizations for fossil fuel exploration and infrastructure.
Striking for an international court, also, is the fact that the ICJ in its Opinion underscores private responsibilities: ‘a lasting and satisfactory solution requires human will and wisdom — at the individual, social and political levels.’ (para. 456).
4. Present versus Future
Regarding, the rights of future generations, the ICJ discussed this issue in terms of the principle of intergenerational equity as ‘a manifestation of equity in the general sense’ (para. 156). It observed that whilst this principle does not give rise to new rights or obligations, it must nonetheless shape states’ policies (para. 157).
Intergenerational equity is an expression of the idea that present generations are trustees of humanity tasked with preserving dignified living conditions and transmitting them to future generations. The IPCC has underscored that the effects of global warming will cut across generations. Due regard for the interests of future generations and the long-term implications of conduct are equitable considerations that need to be taken into account where states contemplate, decide on and implement policies and measures in fulfilment of their obligations under the relevant treaties and customary international law.
Finally, also crucial in a temporal sense is the fact that, according to the ICJ, states can pursue legal action for cumulative historical emissions, noting that: ‘while climate change is caused by cumulative greenhouse gas emissions, it is scientifically possible to determine each state’s total [historical] contribution to global emissions.’ (para 429).
The customary duty to prevent transboundary environmental harm, which requires States to ‘use all the means at [their] disposal in order to avoid activities which take place in [their] territory, or in any area under [their] jurisdiction, causing significant damage to the environment of another State’, also applies to the climate system, which is an integral and vitally important part of the environment and which must be protected for present and future generations.
Conclusions
This Opinion fits in a string of domestic and international climate cases that assign state responsibility for the deleterious consequences of climate change, and in that sense arguably is unremarkable. Nonetheless, we feel that the Opinion may accelerate the emergence of a constitutional conceptual imaginary heralding new futures not merely for climate and environmental law specifically, but for law more generally.
First, the ICJ legally acknowledges that climate obligations cannot be sensibly severed from various environmental treaties, which in turn cannot be understood in isolation from human rights, and vice versa. It thereby brings law more into sync with insights from the natural sciences, but more practically also ensures that a state cannot escape its climate obligations simply by withdrawing from international climate treaties.
Second, and spatially, the duty to cooperate serves as a correction of the principle of territorial sovereignty, its status of customary international law again implying a range of state duties pertaining to the climate also for states non-party to climate treaties.
Third, in an age when industrial moguls unashamedly rival or co-opt elected representatives of even the most powerful states, it is of paramount importance that the ICJ emphasizes state duties to preventatively regulate an open-ended class of environmentally/climate-destructive private behaviour.
Fourth and final, resonating case law such as Klimaseniorinnen, somewhat abstractly but promisingly, the ICJ in its Opinion gives voice to the unborn by means of a general principle of intergenerational equity.
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