By Michael B. Gerrard
Note: On September 26, 2019, the Vanuatu Permanent Mission to the United Nations hosted a workshop on seeking an advisory opinion on climate change from the International Court of Justice. Professor Michael Gerrard gave a presentation about the legal and procedural issues that would be involved. In view of recent press interest in Vanuatu’s effort to obtain such an opinion, a slightly edited version of this presentation is provided below.
The International Court of Justice (ICJ) is the principal judicial organ of the United Nations. It was created in 1946 as successor to Permanent Court of International Justice. It sits in the Hague. It has 15 judges. They are elected to nine-year terms by the General Assembly and the Security Council upon the nomination of their home governments.
The ICJ can issue two kinds of decisions – contentious and advisory. To my knowledge every lawyer and scholar who has looked at the issue of presenting a climate change case to the ICJ has concluded that an advisory opinion is the way to go. Contentious cases can only be brought by and against countries that have voluntarily accepted the jurisdiction of the ICJ for this kind of case, which is very limiting. For example, the world’s two largest emitting nations – China and the U.S. – have not accepted the ICJ’s jurisdiction here. Contentious cases also pose additional procedural hurdles and limitations. The ICJ’s decisions in contentious cases have more limited applicability and may not go as far as advisory opinions. In the case of climate change, a contentious case that attempted to assign responsibility to particular countries would face many problems of causation and proof that are not present in advisory cases.
Requests for advisory opinions go the ICJ from an authorized body of the United Nations. The General Assembly is explicitly authorized to ask the ICJ to take up a question. The ICJ has never denied such a request from the General Assembly. Various other specialized agencies of the UN may also ask the ICJ to take up questions; the World Meteorological Association is one of them, but it does not appear ever to have presented a question to the ICJ.
At the General Assembly, the entire membership would vote on whether to present a question to the ICJ. It is not entirely clear whether that would require a simple majority of those present and voting, or a two-thirds vote of those present and voting. The United Nations Charter provides that certain “important questions” require a two-thirds vote. The types of important questions that fall within this category do not include requests to the ICJ for advisory opinions. Most commentators seem to think a simple majority is needed, but some say it’s two-thirds because climate change involves “the maintenance of international peace and security,” which is one of the bases for requiring such a super-majority vote.
One thing that is clear is that this vote would not be subject to veto by any country, unlike votes of the Security Council.
The request to the ICJ should specify the question the court is being asked to decide. There has been quite a bit of scholarly debate about just how to phrase the question. One formulation that has been suggested is, “What are the obligations under international law of a State for ensuring that activities under its jurisdiction or control that emit greenhouse gases do not cause, or substantially contribute to, serious damage to another State or State?” That was the question that Palau and the Republic of the Marshall Islands attempted to present in 2012, but the United States opposed submitting climate change to the ICJ and in the end nowhere near a majority of General Assembly members supported presentation of the question.
Another way to formulate the question is, “What are the obligations of states under international law to protect the rights of present and future generations against the adverse effects of climate change?”
In any event, the ICJ could reformulate the question on its own.
Once the ICJ takes an advisory case, it invites all states to make written submissions. Sometimes the Court also allows NGOs to make submissions. However, if the ICJ does take up a climate change question, I am sure that any state that wanted to take a position could readily find NGOs and academics that would be very happy to draft submissions for it at no charge. So the ICJ would be flooded with detailed briefs and factual statements.
The ICJ typically allows between two and six months for these submissions. Copies of the submissions are made public, and states have a right of reply. So there will likely be two rounds of briefs.
The ICJ usually holds oral arguments if any state requests it, which would certainly be the case here. The states and some other organizations that made submissions may argue. So the arguments, which are held in front of all 15 judges, may become quite protracted.
In the Japanese whaling case, decided in 2014, the ICJ for the first time allowed the scientific experts for the parties to testify directly to the court and to be cross-examined by counsel for the lead opponents – in that case, Australia and New Zealand. The judges themselves engaged in very detailed and highly technical questioning of the scientific experts. If climate change comes before the ICJ, and if any state chooses to contest the basic science and put forward its own expert witnesses, those witnesses could expect to receive similar vigorous questioning.
After the hearings and any additional briefing, the court deliberates. It renders its decisions by a simple majority vote of the members. Individual judges may and often do submit concurring or dissenting opinions.
In the court’s opinion, one would expect to find a determination of what is the applicable law, and how that law applies to the question posed. There would also likely be detailed scientific findings based on the court’s assessment of the scientific evidence that was presented to it.
There are multiple sources of law to which the Court could look. The Statute of the ICJ says the court must apply law derived from the following sources: international conventions; international custom; general principles of law recognized by civilized nations; judicial decisions; and teachings of the most highly qualified authorities.
The UN Framework Convention on Climate Change of 1992, the Kyoto Protocol of 1997, and the Paris Climate Agreement of 2015 would all be important sources. The numerous resolutions on climate change from the General Assembly, and the numerous reports of UN human rights bodies, would be cited. There are also established principles of international law that would come into play, including the rule against causing harm to other nations. For example, the court would hear about the Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities, promulgated by the International Law Commission in 2001.
Once the opinion is issued, what impact would it have?
Advisory opinions from the ICJ are not binding, and the court has no enforcement power. However, they can have great impact. Numerous advisory opinions have shaped the development of international law on the subject matters presented. These include opinions on the legality of the threat or use of nuclear weapons; on reparations for injuries suffered in the service of the United Nations; on the legal consequences of the construction of a wall in the occupied Palestinian territory; on reservations to the convention on genocide; and the self-determination of the people of the Western Sahara.
A decision on climate change could be the most authoritative statement to date of the obligations that international law imposes on states to control their greenhouse gas emissions. States that care about international law and international opinion – which is not every major state today, but it is many of them – would take this very seriously. We could see an authoritative judicial determination of the validity of the science that has been summarized by the IPCC. The decision could have a real impact on the process of revising the nationally determined contributions under the Paris Climate Agreement.
An increasing number of domestic courts around the world are considering the issue of climate change, and citing to international agreements and to the decisions of the courts of other countries. An ICJ opinion, if it got to the merits, would surely become the leading authority to which these domestic courts would look in framing their own decisions. It would be looked to by the international human rights bodies and tribunals that are considering climate change and its impacts. Such an opinion would also help guide the actions of corporations that seek to be socially responsible, and would assist shareholder activists and others in pressuring companies that were not acting in a responsible manner.
There is a basis for being hopeful for a positive outcome from the ICJ. Over the last more than 20 years the court has issued several decisions that affirm the importance of environmental protection. The court’s 1996 advisory opinion on the threat or use of nuclear weapons spoke of “a general obligation to protect the natural environment against widespread, long-term and severe environmental damage.” In 1997, in a ruling on a dispute between Hungary and Slovakia concerning the construction of a dam on the Danube River, the court held that the norms of environmental law are relevant to the implementation of a treaty between the two countries. The Pulp Mills case between Argentina and Uruguay of 2010 spoke of environmental impact assessment as a principle of customary international law. The Japanese whaling decision of 2014 examined in great depth the adverse impacts of whaling. Most recently, in a 2018 decision the Court ordered Nicaragua to pay damages to Costa Rica for injury to wetlands and rainforests in the territory of Costa Rica.
Thus today’s International Court of Justice might be regarded as a friendly and authoritative forum for a determination of the obligations of states to control their greenhouse gas emissions for the sake of all humanity.