Symposium: Climate Change in an Unequal World: Does International Law Matter?
Climate Change in an Unequal World:
Do International Courts and Tribunals Matter?
by Margaretha Wewerinke-Singh*
Published on 15 September 2022
Climate change is widely seen as the defining challenge of our time. It is already having devastating impacts on people, biodiversity and ecosystems around the world, with serious implications for the enjoyment of human rights. These impacts are felt disproportionally by those who are already vulnerable or marginalised—the same segments of the world’s population who have contributed the least to the root causes of climate change.
Climate change litigation before domestic courts has started to address the failure of States and corporations to address the climate crisis. More than 2,000 climate cases have been filed in jurisdictions around the world, including 15 cases before regional or international courts or tribunals. Lawyers, activists, judges, experts and other actors from around the world have collectively created and shaped an impressive body of practice—despite facing significant pushback, in various forms, from powerful opponents. The achievements of this transnational community of practice comprise not only court victories, but encompass broader socio-legal processes resulting in societal change.
There are limits, however, to what has been achieved in terms of climate justice through litigation to date. This is particularly so when it comes to addressing the existential threats faced by small island developing States (SIDS) related to rising sea-levels, extreme weather events, coral bleaching, and loss of marine biodiversity. These threats include loss of land territory resulting in forced displacement; loss of fish resources on which SIDS depend for sustenance and economic development; and the possible loss of sovereign rights and maritime entitlements.
A first limitation relates to the (actual or perceived) jurisdictional limits of domestic courts. An illustration is provided by the landmark Urgenda-case, in which the State of the Netherlands was found in violation of its human rights obligations because of inadequate climate mitigation policies. The case involved a dispute under Dutch civil law between the Urgenda Foundation and the State of the Netherlands. The case counts as one of the most inspiring climate cases litigated to date, with the judgments reflecting a high degree of ingenuity and courage on the part of those directly involved. Nonetheless, assessing the way in which the rights of SIDS’ inhabitants were (not) dealt with is sobering. In determining the adequacy of the State’s policies, the court of first instance asserted that a global temperature goal of 2°C had “globally been taken as the starting point for the development of climate policies”. It proceeded to note that “[i]ncidentally, this comes with a restriction for a number of countries in the Pacific Ocean, such as Tuvalu and Fiji, for which dangerous climate change, with the associated risk of destruction of their entire territories, probably will already occur at a temperature rise of 1.5°C.” Yet despite awareness of this fact, the court went on to assess the adequacy of the State of the Netherlands’ climate policy against a 2°C temperature goal—an approach that was endorsed on appeal. In fact, the Court of Appeal explicitly declined to engage with the extraterritorial or intergenerational aspects of the claim based on a narrow interpretation of the term “jurisdiction”. As explained elsewhere, this approach was largely a result of judicial economy: the courts had found the claim admissible on behalf of the current generation of Dutch nationals, and thus claims concerning other categories of rightsholders did not need to be addressed. The Supreme Court likewise confined its analysis to the future threat of climate change to residents of the Netherlands. (For climate justice concerns about European climate litigation more broadly, see e.g. this piece by Kulamadayil.)
Procedural obstacles have also hampered progress in promoting climate justice for SIDS through the courts. In Carvalho v the European Parliament and the Council, plaintiffs from across Europe were joined by families from Kenya and Fiji in bringing an action in the General Court of the European Union (EU) seeking to compel the EU to adopt more ambitious climate targets. The case was dismissed for lack of standing. The Court reasoned that climate change affects everyone one way or another, and thus the issue at stake in the case was not of “individual concern” to the plaintiffs. This finding was upheld by the European Court of Justice.
At the international level, the case of Sacchi v Argentina was brought before the UN Committee on the Rights of the Child (‘CRC Committee’) by sixteen children, including children from the Marshall Islands and Palau, against five respondent States who were said to have violated the children’s rights by causing and perpetuating the climate crisis. In its views on the communication, the Committee recognised that States have “heightened obligations to protect children from foreseeable harm” flowing from “special safeguards” to which children are entitled. Nonetheless, it dismissed the communication for non-exhaustion of domestic remedies.
As argued elsewhere, the CRC Committee’s finding of non-admissibility in Sacchi raises questions about children’s right to a remedy for human rights violations connected with climate change–questions which are particularly pertinent for children from SIDS who, as the current and former UN Special Rapporteurs on Human Rights and the Environment pointed out in their amicus brief, face a risk of permanently losing their home within a timeframe as short as 10 to 15 years. Expecting those children to pursue highly complex, uncertain and expensive transnational litigation before turning to the Committee seems to turn the exhaustion of domestic remedies requirement into an insurmountable obstacle to remedies for some of the most serious human rights violations flowing from climate change.
In Teitiota v New Zealand, a citizen of Kiribati brought an individual compliant before the Human Rights Committee, arguing that New Zealand had violated his right to life under the International Covenant on Civil and Political Rights (ICCPR) by denying him asylum as a refugee despite evidence that sea-level rise was likely to render the whole of Kiribati uninhabitable. The author had previously appealed the New Zealand authorities’ denial of refugee status all the way up to the Supreme Court, but did not succeed in getting the decision overturned. The time frame of 10 to 15 years before SIDS, such as Kiribati would become uninhabitable was established as fact. In connection with this fact, the UN Human Rights Committee noted that the risk of an entire country becoming submerged under water is “such an extreme risk [that] the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realized”. However, the Committee went on to find that the author’s right to life had not been violated, as the 10-15 years’ timeframe was sufficient to allow for “intervening acts” by the government of Kiribati that could prevent such an outcome.
As Committee member Duncan rightly pointed out in a dissenting opinion, the Committee’s narrow interpretation of the right to life is inconsistent with the standards upheld in the Committee’s own interpretative practice. The Committee’s finding on the merits may indeed reflect political concerns, e.g. about “floodgates”, rather than any limitations inherent in the treaty regime itself. It is therefore hoped that the Committee’s views on future cases will more clearly reflect an evolutive interpretation of the ICCPR, thus safeguarding the rights protected in this treaty more effectively.
Either way, the underwhelming results of climate litigation to date in terms of climate justice for SIDS beg the question whether invoking the advisory jurisdiction of international courts and tribunals offers new promise. Advisory opinions are, of course, not legally binding. Nevertheless, they are authoritative pronouncements of law that have in the past significantly aided in the progressive development of international law. Advisory opinions, in particular from the ICJ, are “often an instrument of preventive diplomacy and help to keep the peace.” As the Pacific Islands Students Fighting Climate Change point out, an advisory opinion on climate change could serve “as a legal catalyst” for more ambitious climate action under the Paris Agreement while guiding local, regional and international adjudications on climate change.
The question as to the potential benefits of advisory opinions is no longer purely hypothetical, as seen by the two “live” initiatives that could result in an advisory opinion from an international court or tribunal. First, Vanuatu is campaigning for a resolution from the UN General Assembly requesting an advisory opinion from the International Court of Justice (ICJ) on climate change and human rights. This campaign responds to the call of a global movement launched by law students from the University of the South Pacific, which aspires to “bring the world’s biggest problem before the world’s highest court”. The campaign has gained considerable traction, with dozens of States – including members of the Caribbean Community, the Organisation of African, Caribbean and Pacific States and, most recently, the Pacific Islands Forum – formally expressing support for the initiative. More than 1,500 civil society organisations from 130 countries have also rallied behind the initiative.
Second, a new agreement has been signed by Antigua and Barbuda and Tuvalu that establishes a Commission of Small Island States on Climate Change and International Law (COSIS). This Commission, among other things, has the express authority to ask the International Tribunal for the Law of the Sea (ITLOS) for an advisory opinion on matters related to international law and climate change that fall under the jurisdiction of the ITLOS. Law of the Sea issues the Tribunal could address in an advisory opinion include questions related to the protection and preservation of the marine environment, preservation of existing rights in maritime zones and the status of islands facing rising sea levels. Significantly, Article 237 of UNCLOS provides a basis for considering international and regional agreements relating to, for example, low tide elevations and baselines or fisheries management. As Antigua and Barbuda’s Prime Minister Gaston Browne lamented, “We hoped that no one would have to come to such a position [as to resort to legal action] but our very existence now depends on urgent action to our perilous situation”.
It is worth considering how the two initiatives compare, and may interact with one another. In terms of prospects, it is no overstatement to say that the UN General Assembly pathway requires Vanuatu and its closest allies to punch above their weight diplomatically. At the same time, it offers the most inclusive, authoritative and constructive pathway to greater legal clarity on the international norms that are most relevant to the protection of our planet, and to present and future generations. These relevant norms include not only the principles and provisions of the United Nations Framework Convention on Climate Change and the Paris Agreement, but also norms derived from other treaty regimes as well as customary international law. The right of self-determination could be given the specific attention it deserves in the context of climate change, which has been lacking in climate litigation to date. The global outpouring of support for the initiative seems to confirm that an advisory opinion on climate change from the world’s highest court is, as Vanuatu’s Ambassador Odo Tevi put it, “an idea whose time has come”.
The COSIS pathway, meanwhile, circumvents most of the diplomatic challenges and allows SIDS, through COSIS, to retain full control over the formulation of the legal questions to which answers are sought. As Árnadóttir has noted, framing the legal questions in the context of the law of the sea also comes with the advantage of providing a pathway to compulsory dispute settlement.
In terms of jurisdiction, the ICJ, as the principal judicial organ of the United Nations, has significantly broader jurisdiction than ITLOS – which was established by the 1982 UN Convention on the Law of the Sea. However, both courts are capable of interpreting and applying fundamental legal principles that are relevant to climate change and sea-level rise.
The Special Chamber of ITLOS’ ruling on the maritime boundary dispute case between Mauritius and the Maldives illustrates how legal proceedings between the two bodies may build upon and reinforce one another, with the Special Chamber stating that determinations made by the ICJ in an advisory opinion have “legal effect” in matters before it. Given the wide range of legal issues related to climate change and sea-level rise that would merit clarification, the advisory jurisdiction of the ICJ and ITLOS could be pursued in a complementary and mutually reinforcing fashion.
To conclude, the need for justice in the face of climate change is more pressing than ever. International courts and tribunals have a critical role to play in addressing this need. The two initiatives currently underway to obtain an advisory opinion on climate change signal that States do not have unfettered discretion to decide on climate action or inaction. Indeed, the sheer suggestion that international law can be brought to bear on climate change could strengthen the position of SIDS and other climate-vulnerable States in international negotiations, including on the contentious issue of loss and damage. Once legal proceedings are commenced before the ICJ and/or ITLOS, these proceedings would serve to give SIDS a voice in the interpretation of the rules and principles of international law that could really make a difference in addressing the inequalities of climate change. And once delivered, advisory opinions from the ICJ and/or ITLOS could contribute to climate justice by clarifying the content of States’ obligations on climate change within the broader context of international law. This, in turn, would further bolster SIDS’ negotiation position in the international climate talks. It would set the tone for how domestic, regional and international courts handle pending and future climate cases. And thus, while legal proceedings won’t serve as a silver bullet for SIDS, international courts and tribunals certainly could, within their respective mandates, help to turn the tide.
*Margaretha Wewerinke-Singh is an Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies at Leiden University, and editor of Environmental Law and Governance in the Pacific: Climate Change, Biodiversity and Communities.