The UN General Assembly has made a landmark decision, requiring the International Court of Justice (ICJ) to provide its advisory opinion on whether Member States can be held legally accountable for their contributions to climate change.
- The adoption of a resolution proposed in December 2022 has been hailed as a major milestone in the fight for climate justice, raising issues of liability for both countries and companies.
- Countries that bear the greatest responsibility for anthropogenic climate change could soon be held accountable for their devastating impact on those that have made only minor contributions.
- Increasing liabilities could inspire State Governments to advance their climate ambitions, encouraging them to strengthen their regulation of economic activity and raising the stakes for corporate actors around the world.
The General Assembly has voted in favour of a resolution proposed by the Republic of Vanuata in December 2022. In doing so, it has ordered the International Court of Justice (ICJ) to prepare an advisory opinion on the obligations of Member States to ensure that the climate is protected under international law.
Will the resolution impact global business?
As climate litigation continues to gain momentum, the pressure endured by Governments seems likely to have a spill-over effect on businesses around the world. This could come in the form of new legislation introduced to accelerate progress towards national commitments, or through the direct transferal of liability.
Indeed, a number of subnational authorities have already taken legal action against corporations that are considered responsible for the impacts of climate change. The fines that may be incurred through such cases could provide local governments with a clever way of financing their future climate action, enabling them to meet their various targets while protecting their communities from the associated costs.
More broadly, an increase in the success of climate litigation against national governments could inspire complainants to bring their own cases against corporate actors. Although a number of companies are already facing legal action for their contributions to climate change, the ICJ’s opinion could further their chance of success.
This is of particular concern to those countries, and companies, that have been identified as being responsible for significant levels of global emissions. In 2022, for example, a Dartmouth study identified the extraordinary cost of individual countries actions in terms of their climate impact. It concluded that around $6 trillion in damages had been caused by just five countries over the course of 25 years. Together, the US and China alone were responsible for $1.8 trillion in annual losses during the period studied.
Regarding corporate impacts on the climate, a CDP report from 2017, suggests that just 100 fossil fuel companies were responsible for around 71% of industrial GHG emissions since 1998. In total, more than half of global industrial emissions since 1988 can be traced to just 25 corporate and state producers.
A major milestone for climate justice
Since its publication in 2022, the Vanuata resolution has been co-sponsored by more than 120 countries from around the world. Now, the UN General Assembly has voted in favour of its adoption and issued an official request to the ICJ. The Court is to hear the evidence of each Member State, before publishing its opinion in 2024.
“We are just ecstatic that the world has listened to the Pacific Youth and has chosen to take action. From what started in a Pacific classroom four years ago,” said Cynthia Houniuhi, president of PISFCC. “As young people, the world’s failure to stop planet killing emissions is not a theoretical problem. It is our present and it is our future that is being sold out. The vote in the United Nations is a step in the right direction for climate justice.”
“Today marks a profound moment in the history of our Blue Pacific, and the world. It leaves the voice and leadership of the world’s most vulnerable nations in no doubt that there is an obligation of stewardship upon all nations to ensure this one Blue Planet will continue to sustain all peoples, today and into the future,” echoed Mark Brown, Prime Minister of the Cook Islands and chair of the Pacific Islands Forum.
“Coming in the wake of the IPCC report, we find ourselves faced with an incredible opportunity where both the highest level of the international legal order, and the highest global level of scientific analysis on the climate, are offering a way forward through the looming existential crisis.”
The adoption of the resolution comes as a major milestone in the fight for climate justice, not only for present generations but in respect of the future population. This reflects the growing respect for young people’s concerns that current climate strategies will leave them and their descendants to suffer the consequences of decisions over which they have had little influence.
Exploring the history of the Vanuata resolution
In 2019, a group of students from across the Pacific Islands formed a youth-led organisation known as Pacific Islands Students Fighting Climate Change (PISFCC). Since its formation, the PISFCC has evolved to include members from various age groups, bringing the Pacific youth population together in the fight for climate justice.
As the PISFCC gained traction, it teamed up with the Republic of Vanuata to prepare a draft resolution requesting the ICJ’s advisory opinion on the obligations of UN Member States to protect the climate of future generations. With the support of 18 countries from across the World, the resolution was published in December 2022.
It called upon the Court to clarify the extent to which Member States could be held liable for their failure to act against climate change. It suggested that the ICJ proceeded to conduct a series of hearings, allowing all Member States to provide their respective evidence without the fear of initial judgement. Although these initial proceedings would not be expected to assign blame, the resolution demanded that they outline the future legal consequences for acts and omissions that result in significant harm to the environment.
Ultimately, the resolution emerged as a reflection of mounting frustration towards the mismatch between rhetoric and action when it came to addressing climate change. As the world’s most vulnerable populations have been devastated by changes in their environment, the countries responsible for the brunt of the damage have continued to make lofty promises of climate action that inevitably fail to materialise.
This mismatch has recently been highlighted by the Intergovernmental Panel on Climate Change (IPCC) with the launch of its latest synthesis report. The IPCC shed light on the extent of loss and damage being experienced due to climate change, underscoring the immense inequalities between those bearing the responsibility and those that are suffering the most.
What changes will come as a result of the Court’s opinion?
The ICJ’s final opinion will essentially establish whether UN Member States are legally required to meet the commitments they have made under non-binding treaties such as the Paris Agreement. It will decide whether failure to meet these commitments can be challenged through litigation, and outline the penalties that may be delivered to States that are found to be guilty.
Although the advisory opinion will not be binding in domestic courts, its international ruling could have a significant influence on judges and Governments within the UN network. As stated by the UN Secretary-General in his preliminary address to the General Assembly: “Advisory opinions of the Court – the principal judicial organ of the United Nations – have tremendous importance and can have a long-standing impact on the international legal order.”
“Advisory opinions can provide much-needed clarification on existing international legal obligations,” he continued. “If and when given, such an opinion would assist the General Assembly, the UN and Member States to take the bolder and stronger climate action that our world so desperately needs. It could also guide the actions and conduct of States in their relations with each other, as well as towards their own citizens.”
Given that the number of cases being brought against governmental responses to climate change is already increasing rapidly, with many finding in favour of those raising complaint, the ICJ’s non-binding opinion is not to be taken lightly. By outlining State obligations under international law, it will create a more solid foundation on which litigants can stand their grounds.
This will raise the stakes of national policy-making, encouraging Governments to review their existing strategies and ensure that they are appropriately aligned with climate goals. In doing so, they may be inspired to introduce stricter regulations or target the economic activities that are compromising their commitments.