This week, the international court of justice (ICJ) opened two weeks of hearings on states’ climate-related legal obligations – and the consequences, if “significant harm” is caused.
The case stems from a unanimous UN general assembly (UNGA) request for an “advisory opinion” from the ICJ.
It is taking place against a backdrop of rapidly escalating climate impacts. Emissions continue to rise, rather than falling rapidly, as needed to avoid dangerous levels of global warming.
It is the ICJ’s largest ever case, with more than 100 countries and international organisations making interventions, deploying a wide variety of legal arguments.
Ralph Regenvanu, climate envoy for Vanuatu, which led the campaign for the ICJ hearings, said in his opening address: “[T]his may well be the most consequential case in the history of humanity.”
Below, Carbon Brief interviews leading international law scholar Prof Philippe Sands – who drafted the pleadings for Mauritius, but is speaking here in a personal capacity – to find out more about the legal issues at stake and the wider significance of the ICJ case.
- On the significance of the case: “It’s the first time the ICJ has been called upon to address legal issues relating to climate change.”
- On the key legal arguments: “There’s just a huge number of issues that are coming up.”
- On climate obligations under the UN: “Will the court open the door to the situation that the 1992 [UN climate] convention … [is] not the be all and end all?”
- On where outcomes could come from: “Essentially, it’s the whole of international law!”
- On the responsibility of states: “The question at the beating heart of this case, really, is the consequences of emissions over time.”
- On historical emissions: “The big issue is, are you liable for the continuing consequences of your past emissions?”
- On applying international law: “When drafting the climate treaty regime, [did] states…exclude the application of general international law?”
- On expectations for the case: “What I’m interested in, really, is an advisory opinion that is capable of having hard, practical application.”
- On the state of the science: “A procedure in which the judges hear privately from any person…is unusual. It’s unorthodox.”
- On the significance of the submissions: “The oral phase is very important, because it basically concentrates the issues down to the most significant and narrow set of issues.”
- On the question of the UN or wider law: “It’s a tough situation for the judges.”
Carbon Brief: Would you be able to start by just situating this case in its wider legal context and explaining why it could be so consequential?
Philippe Sands: Well, it’s the first time the international court of justice has been called upon to address legal issues relating to climate change. The ICJ is the principal judicial organ of the United Nations and, although the advisory opinion that it hands down will not be binding on states, it is binding on all UN bodies. The determinations that the court makes will have consequences that go very far and that will have a particular authority, in legal and political terms. Of course, everything turns on what the court actually says.
CB: Would you be able to summarise the key legal arguments that are being fought over in this case?
PS: No! I mean, there’s just a huge number of issues that are coming up. But, essentially, the court has been asked two questions by the UN General Assembly – the first time, I believe, that a request from the General Assembly has been consensual, with no objections. The two questions are, firstly, what are the obligations for states under international law to protect the climate system? And, secondly, what are the legal consequences under these obligations, where, by their acts and emissions, [states] cause significant harm to the climate system? So, there are two distinct questions – and about 100 states and international organisations of various kinds have made submissions on the vast range of issues that are raised by these two questions. The questions are very, very broad and that signals to me that the court’s response may be quite general. But, for me, the crucial issues are, firstly, what the court says about the state of the science: is it established, or is there any room for doubt? Secondly, what are the obligations of states having regard to the clarity of the science? Thirdly, are there legal obligations on states in relation to the climate system that exist and arise outside of the treaty regime – the 1992 [UN Framework] convention [on climate change], the Kyoto Protocol, the Paris Agreement and so on and so forth. And, related to that, fourthly – this is the most intense, legally interesting aspect – what are the responsibilities of states for historic emissions under general international law? And, in particular, are the biggest contributors liable under international law to make good any damages that may arise from their historic actions? But, I mean, there’s just such a vast array of questions that are addressed, it’s impossible to summarise briefly.
… Article continues at https://www.carbonbrief.org/interview-prof-philippe-sands-on-un-courts-landmark-climate-change-hearing/
