Historic climate change advisory: What the case before the International Court of Justice might mean

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What triggered this case?

This climate change case started in 2021 when a group of law students lobbied the government of Vanuatu, a tiny South Pacific island nation threatened by rising sea levels, to approach the court. They wanted the court to issue an advisory opinion on what countries should be compelled to do to prevent climate change.

An advisory opinion is advice from the court to the United Nations on how best to apply international law on a specific matter.

Other countries – 131 of them – supported Vanuatu and drafted a resolution which the United Nations general assembly adopted.

The resolution said that:

Climate change is an unprecedented challenge of civilizational proportions and the well-being of present and future generations of humankind depends on our immediate and urgent response to it.

The general assembly then asked the International Court of Justice to decide what legal obligations every government has to prevent climate change.

Between 1948 and 2023, the International Court of Justice has issued only 27 advisory opinions on various matters. These range from whether the wall Israel is building through the occupied Palestinian West Bank is legal, to the independence of Kosovo.

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What has the court been asked to decide?

The court will decide these points:

• governments’ obligations under international law to protect the climate system and other parts of the environment from greenhouse gas emissions, now and in the future
• the legal consequences for governments that fail to do this and cause harm to future generations and other states (especially small island nations that are affected by rising sea levels).

What’s involved?

Before the court issues an advisory opinion it holds public hearings. Written statements are also submitted. In this instance, governments and non-governmental organisations have supplied 91 written statements – the highest number filed in advisory proceedings before the court.

Nine African governments have provided statements to the court about the impact of climate change on their countries: Kenya, Ghana, Madagascar, South Africa, Cameroon, Sierra Leone, Mauritius, Burkina Faso, and Egypt.

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African countries have called for climate justice and equity. They’ve explained that Africa is responsible for only 3% of all greenhouse gas emissions. Yet the continent is badly affected by climate change which it did not cause. The statements from African countries emphasise the need for developed countries to take stronger action and provide support for mitigation, adaptation and human rights protection.

For example, the government of Sierra Leone told the court that even in its highest emitting years, Sierra Leone’s share of global carbon dioxide emissions was less than 0.01% of the global total. Yet, floods induced by extreme weather events accounted for 90% of the natural disasters in Sierra Leone. The country is in the top 10% of those most likely to be affected by climate change and least able to cope.

The government of Kenya said its contribution to global warming was almost zero before 1950. Today it emits only 0.1% of all greenhouse gases. But since 2011, it has been affected by climate change-caused droughts and floods in the Horn of Africa which have left 7.7 million people without food, displaced over 230,000, cost over US$11 billion in damage, and wiped out homes, farmlands and 700 schools. It has received tens of thousands of “climate refugees” from neighbouring states.

South Africa has raised concerns that the United Nations resolution does not focus enough on how much climate change endangers Africa. It also wants the court to rule that climate change violates the right to life and health.

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Why is the case so significant?

First, the wellbeing of present and future generations needs an immediate global response to climate change. This will be the first time that a legal precedent is set under international law, setting out what all governments must do to prevent further global warming.

Second, the case will clarify the legal approach to human rights problems caused by climate change. For example, in the landmark Dutch Urgenda decision in December 2019, the Netherlands supreme court established a legal duty for the Netherlands government to reduce greenhouse gas emissions because they cause climate change, which affects people’s human rights. Following this case, human rights based climate lawsuits spread all over the world.

The Inter-American Court of Human Rights held hearings for its advisory opinion on the climate emergency and human rights in April 2024. In the same month, the European Court of Human Rights heard its very first human rights climate cases. One ruling already states that a lack of climate action by governments violates human rights. The International Tribunal for the Land of the Sea has also said that climate change “raises human rights concerns”.

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Third, the impact of the world’s highest court lending its voice to the climate crisis will not only be felt by the countries directly involved, but will influence all countries.

This could open the door for transnational climate litigation, especially in matters of the sea and trade, and for corporate climate cases.

Fourth, this case is a powerful tool that youth, non-governmental organisations, civil society and climate justice activists can use in campaigns.

Finally, this advisory opinion will highlight the damage caused by climate change to developing countries and small island states.

What’s the impact likely to be?

This opinion could clarify whether and how developed nations are legally required to mitigate climate impacts, assist vulnerable countries, and uphold human rights in the context of climate change.

The international community will be compelled to act on the recommendations that emerge from the court’s opinion. This will make global climate governance stronger (climate change affects the world and the world needs to work together in limiting it). It could lead to more international co-operation and to climate finance being made available for developing countries.

This article is republished from The Conversation under a Creative Commons license. Read the original article.