The International Court of Justice issued a landmark opinion that could leave the door open for countries pursuing future litigation for climate related reparations.
The United Nations’ International Court of Justice issued a striking opinion this week that opened the door for countries to potentially sue each other over the impacts of climate change and historically generated greenhouse gas emissions.
The ICJ’s decision was only an advisory opinion, which means it’s not binding but is instead meant to advise the U.N. moving forward. However, Sonia E. Rolland, a law professor at Northeastern University, says it is destined to be a landmark opinion that will be used in court cases worldwide and “carries significant political weight.”
“It is absolutely remarkable that the court took such a holistic approach to the implications of climate change for such a broad range of state rights and obligations, as well as individual and collective human rights,” Rolland says.
The court’s 15 judges issued their unanimous opinion after a two-week hearing in December requested by the U.N. General Assembly. During that hearing, the ICJ was asked to consider, one, what obligations countries have under existing international treaties to protect the climate from greenhouse gases and, two, what the consequences are if they cause climate-related damage.
Countries like the U.S. –– major fossil fuel producers –– argued before the court that the Paris Climate Agreement, which the U.S. recently withdrew from under the Trump administration, was enough to address the impacts of climate change. Many others countered that the Paris Agreement cannot be enforced and there need to be more measures to stem the rising tides of climate changes.
More specifically, some countries, like Pacific Island nations, argued that states generating the most emissions should pay reparations to the countries most impacted by climate change.
The judges ultimately stated that every country has an obligation to “prevent significant harm to the environment,” not just countries that have signed a specific treaty. It also said that any country’s failure to take action would constitute an “internationally wrongful act.”
Interestingly, the ICJ also stated that a country’s climate responsibilities also extends to the behavior of companies under its jurisdiction.
“This is not a new principle in international law, but it is unusual for the court to explicitly make that connection in a case that does not specifically involve the actions of a company,” Rolland says.
However, the court went even further, clearing the way for countries to sue one another over damages caused by historical greenhouse gas emissions.
“While climate change is caused by cumulative greenhouse gas emissions, it is scientifically possible to determine each state’s total contribution to global emissions,” the court said.
Rolland says when it comes to countries breaking international treaties, countries will more often settle disputes through negotiations rather than lawsuits. The court’s opinion leaves open the question of “whether it will spur more suits by states against other states and how it will affect ongoing negotiations.”
Beyond inter-state litigation, Rolland explains the court importantly embedded basic facts around climate change into international law.
“The facts are not surprising and well in line with scientific consensus, but they are now being elevated to legally operative facts,” Rolland says.
Rolland also notes the court’s decision explicitly links human rights with climate change in what amounts to a major win for environmental lawyers and activists.
“It builds on what many domestic and international courts have said regarding climate change obligations, but it goes beyond what courts with more limited jurisdiction (such as human rights courts, or the Law of the Sea Tribunal) could say,” Rolland says.
“In a political context where a number of states and companies are pulling back from environmental and climate commitments, the ICJ’s opinion unambiguously reminds all of us that climate realities transcend politics.”