The world is currently off-track to hold global temperature rise to 1.5 degrees and avert the most dangerous consequences of global warming. In response, societies are developing various incentives and disincentives to move us closer to this goal, including using legal avenues.
Although this article will focus on three international-level judicial mechanisms to fight global warming, domestic and regional litigation has also gained momentum. As of May 2021, 1,841 climate litigation cases had been filed around the world. Of these, 1,387 were filed before courts in the United States, while the remaining 454 were filed before courts in 39 other countries and 13 international or regional courts and tribunals. Most cases have been brought against governments, typically by corporations, non-governmental organizations (NGOs), and individuals. This shows the pressure governments have been facing at all levels to enforce and enhance their own commitments to fight climate change.
An Advisory Opinion from the International Court of Justice (ICJ)
Led by the Republic of Vanuatu, a growing coalition of states is seeking an advisory opinion on climate change from the International Court of Justice (ICJ). The ICJ is the principal judicial organ of the United Nations, and its role is to settle, in accordance with international law, legal disputes submitted to it by states and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies. The General Assembly and the Security Council are explicitly authorized to ask the ICJ to take up a question.
As the General Assembly is the more likely candidate to put forward a resolution that requests an ICJ advisory opinion on climate change, the coalition led by Vanuatu is working toward that aim. While advisory opinions are not binding, they do inform the development of international law. According to the ICJ, advisory opinions “carry great legal weight and moral authority. They are often an instrument of preventive diplomacy and have peace-keeping virtues. Advisory opinions also, in their way, contribute to the elucidation and development of international law and thereby to the strengthening of peaceful relations between states.”
Advisory Opinion from the International Tribunal of the Law of the Sea (ITLOS)
After a campaign led by the prime ministers from Tuvalu and Antigua and Barbuda at the COP26 last year, an agreement for the establishment of the Commission of Small Island States on Climate Change and International Law was signed. The commission, a vehicle through which states can collaborate on achieving a more progressive international law system, has as one of its mandates the submission of a request for an advisory opinion on climate change from the International Tribunal of the Law of the Sea (ITLOS), which adjudicates disputes around the law of the sea.
Like ICJ advisory opinions, ITLOS advisory opinions are not legally binding. Also, advisory opinions from ITLOS have been rare—only two requests for advisory opinions are counted among the tribunal’s list of cases, and only one other international agreement is known to have specifically authorized an entity to bring legal matters before ITLOS for an advisory opinion. However, an ITLOS advisory opinion could help shift the current discretionary political environment to binding legal obligations on climate change. Advisory opinions would have an authoritative and prospective nature, providing guidelines to the requesting entities and the international community on their obligations to tackle the impacts of climate change, and bringing clarity to their behavior moving forward.
Ecocide as an International Crime
There has been political and popular support for a new international crime of destroying the environment, or “ecocide.” Such a crime would convey that massive unsustainable harm is not just a regulatory issue or business externality, but rather one of the greatest global challenges to the survival and well-being of present and future generations. Currently, the only provision with regard to the destruction of the environment as an international crime is in relation to armed conflict under Article 8(2)(b)(iv) of the Rome Statute of the International Criminal Court.
In 2020, in the face of accelerating and interrelated biodiversity changes, vast use of toxins, and impacts from the climate crises, a private initiative was launched to formulate a new international crime that would protect the environment in times of both war and peace. The Stop Ecocide Foundation convened an international panel of 12 eminent jurists, and in June 2021 they launched their proposed definition of the crime of ecocide, to be put forward as an amendment to the Rome Statute. Broadly understood as the mass damage and destruction of ecosystems, examples of activities that might qualify are overfishing, oil spills, fracking, chemical disasters, and deforestation. The new crime is defined as follows:
“Unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.”
Besides amending the Rome Statute, other paths forward on ecocide are possible. There has been support for the European Commission to include a crime of ecocide in its revised Environmental Crime Directive. Adoption of the crime of ecocide at the national level, as well as resolutions and declarations from international and regional bodies, or even the creation of a new treaty among a group of interested states, are all potential steps toward fulfilling the original vision of the International Law Commission and creating an international crime of ecocide in time of war or peace.
More Clarity Brings More Action
Climate change litigation is on the rise. There are now judicial decisions looking at the responsibility of governments in tackling climate change, such as the April 2021 German Federal Constitutional Court order for the government to lay out a clearer strategy toward achieving its climate targets for the period after 2030, arguing that the German constitution obliges the country to protect the health and lives of minors and future generations against the risks of climate change. Additionally, there have been decisions on the role of corporations in the net-zero goal. In May 2021, the District Court of The Hague ruled that the energy company Royal Dutch Shell must reduce its carbon emissions by 45 percent by 2030 compared with 2019 levels, arguing that the high level of current emissions by the group might contribute to imminent environmental harm to Dutch citizens. International organizations are also declaring their positions with respect to climate change: in 2022 the United Nations General Assembly passed a resolution recognizing the human right to a clean, healthy, and sustainable environment.
More clarity is needed, and the three legal avenues described here can provide guidance on how international and domestic courts should decide cases regarding public and private parties’ climate change responsibilities. Although non-binding, the advisory opinions from the ICJ and ITLOS would entail authoritative statements of law with legal effects. They can assist in the compliance of international obligations to tackle the climate emergency by setting their principles and specific content, which is valuable in situations where the law seems unclear. Also, if the destruction of the environment, or ecocide, becomes an international crime, a legal limit of action will be set for governments and the private sector, especially if actual punishment, such as fines and restitution, is previewed for when those acts occur.
Addressing climate change is now a matter of survival for the most vulnerable countries, such as low-lying island nations. Pursuing legal avenues is one more instrument in the necessary toolkit to be used in the fight against climate change. By bringing those judicial mechanisms to life, private and public parties will be more willing to start legal cases on climate change, and international, regional, and domestic courts will be able to decide much more effectively on cases around climate change. Furthermore, businesses and financial actors will be much more aware of the litigation risk climate change might potentially bring to their activities, making them much more willing to comply with environmental standards.
Julia Almeida Nobre is a Non-resident Adviser at the International Peace Institute (IPI).