Paris and the Public Trust: The Impact of an ICJ Advisory Opinion on Climate Litigation

KAYLA HOLLINGSWORTH ∙ November 17, 2022 ∙ ARTICLE

Adjudication was infrequently used in the formative stages of international environmental law as other mechanisms were preferred for the resolution of natural resource or transboundary pollution disputes.[1] However, environmental matters are now routinely litigated and environmental claims can be brought in a patchwork of jurisdictions and distinctive adjudicative bodies. The International Court of Justice (ICJ) is the only body with general jurisdiction and an environmental dispute can be brought to the court on the basis of a general dispute settlement agreement.[2] Recently, there has been movement to request an advisory opinion from the ICJ on climate change. Last year, the Pacific island of Vanuatu announced that it will seek an advisory opinion on the rights of present and future generations to be protected from climate change. They claim that the most recent Intergovernmental Panel on Climate Change report makes clear that “the window of opportunity to avoid climate catastrophe is rapidly closing. Without bold action, climate vulnerable countries like Vanuatu will face an onslaught of adverse impacts.”[3]

This initiative comes at a time when climatic litigation is being pursued increasingly at a domestic level and the question becomes whether an ICJ advisory opinion on climate change would be useful to these efforts. Upon investigation of domestic climate litigation and analysis of prior ICJ decisions and advisory opinions, a pathway for an advisory opinion on climate change to be useful for climate litigation at a domestic level becomes clearer. This pathway looks to elucidating human rights obligations through environmental law and validates the perspective that a healthy environment is a precondition to the enjoyment of human rights. Under this perspective, it is necessary not only to implement the current commitments to greenhouse gas reductions under the Paris Agreement, but also to strengthen those commitments.[4]

I.      Paris and the Public Trust: Impact of Domestic Climate Litigation

Climate litigation refers to legal actions that have combatting the climate crisis as an aim or whose legal arguments are related to the mitigation of and adaption to climate change. It is one available tool to pressure governments and companies to behave in ways that look to resolve rather than exacerbate dangerous levels of greenhouse gas emissions. Domestic climate litigation has been used with the goal of implementing national (and subnational) environmental laws and regulations, including those put in place to give force to environmental treaty obligations. One of the most adaptable forms of climate litigation has been public trust litigation. Public trust litigation, forwarding the ethos of environmental stewardship, has evolved globally,[5] making inroads through atmospheric trust cases pursuing a reduction in greenhouse gas emissions and that cite governments “inherent duties to protect [affected] resources for present and future generations.”[6] From limiting deforestation in the Philippines to giving force to the Paris Agreement in The State of the Netherlands v. Urgenda Foundation,[7] climate litigation has been used to enforce and strengthen domestic environmental law and policy[8] and to ensure compliance with international treaty obligations around the world.[9] Most recently, the constitutional court in Germany ruled in Neubauer, et al. v. Germany that the current climate protection measures under the Climate Protection Act were insufficient to protect future generations.[10] The Court of First Instance in Belgium held similarly that the government’s climate targets were too low and, therefore, did not protect the rights to life and respect for private and family life enshrined in the European Convention on Human Rights.[11] A breach of these rights under Articles 2 and 8 has also been used  in Milieudefensie et al v Royal Dutch Shell[12] to hold a fossil fuel company accountable for contributing to environmental harms.

Further climate litigation cases are being forwarded in domestic courts[13] and the opportunities for climate litigation seem to be expanding. However, while the “widely cited deficiencies of interstate dispute settlement in dealing with compliance have been the main reason for investigating other options for ensuring that states meet their international commitments”[14] and for turning to national legal institutions through environmental regimes or domestic courts,

… domestic courts may be assisted in their efforts to develop a consistent approach to the enforcement of environmental and other international standards through a dialogue with relevant international courts. Put simply, while the task of enforcement is performed most effectively at the local level, the work of domestic courts can be enhanced when they can turn to an international court for an authoritative interpretation of the treaty provisions in dispute.[15]

An ICJ advisory opinion on climate change can act as that authoritative interpretation.

II.    An Advisory Opinion on Climate Change: A Budding Tool for Climate Litigation

 The ICJ enjoys a broad jurisdiction as the pre-eminent international judicial organ and is “situated at the apex of international tribunals, necessarily [enjoying] a position of special trust and responsibility in relation to the principles of environmental law, especially those relating to what is described in environmental law as the Global Commons.”[16] The ICJ can render advisory opinions ‘on any legal question at the request of whatever body may be authorized by or in accordance’ with the UN Charter.[17] Therefore, the Republic of Vanuatu has announced that it will ask the ICJ to form an opinion on the rights of present and future generations to be protected from climate change. This is not without its risks as an adverse result could always be incurred by asking the wrong question of the wrong body at the wrong time. For example, the ICJ found in favor of Mauritius[18] but Serbia was less fortunate.[19]

Upon investigation of the history of ICJ decisions, none of them “make sweeping statements on the obligations under international environmental law”[20] and it would be a stretch to call the ICJ a particularly welcoming jurisdiction for environmental issues. “As the guardian of general international law, the ICJ must be particularly careful since its law-making function…is just as important, if not more so, as its dispute settlement function.”[21] This function as a gatekeeper of general international law has led the ICJ to take mild stances on the precautionary principle[22] but also to take decisions that look to integrate environmental norms into the general body of law.[23] In regards to intergenerational equity, the ICJ has recognized that it is a principle that can be considered in assessing legality[24] and has noted that there is “a growing awareness of the risks of mankind — for present and future generations”— that require the development of new norms and standards.[25]

If an ICJ advisory opinion is rendered, it could be useful for domestic climate litigation, especially if it focuses on the failure to strengthen or meet commitments to reduce greenhouse gas emissions as impacting basic human rights of present or future generations. It can embolden human rights courts to read the right to a healthy environment into basic human rights obligations[26] and strengthen the persuasive authority for domestic courts that aim to keep governments accountable for commitments in Paris.[27] In essence, human rights “can be defined and expanded by reference to environmental commitments, including those adopted in Paris.”[28] This usage of environmental law to specify human rights obligations[29] has been essential for the successful forwarding of climate litigation that gives voice to future generations in domestic courts. An ICJ advisory opinion could grant “legal weight and moral authority,” along with guidance, to states assessing the adequacy of emission reduction efforts and to “domestic and regional courts and tribunals which may be called upon to adjudicate issues relating to climate change—which is increasingly common.”[30]

The critiques of the low levels of embeddedness of ICJ advisory opinions and the fact that an opinion may stall processes for more ambitious emissions reduction targets are overblown or can be addressed.

Low levels of embededness are not fatal to an international tribunal’s capacity to promote compliance with a regime because even a decision of a purely inter-state court can serve to mobilize domestic political actors who can … pressure government[s] to meet their environmental obligations.[31]

Additionally, as the “Paris Agreement will not prevent disastrous consequences for human rights based on the commitments undertaken so far … from a human rights perspective … it is necessary not only to implement the current intended contributions, but also to strengthen [them].”[32] The Paris Agreement and environmental law highlights the need to address risks of climate change taking global temperatures above 1.5C but says close to nothing about human rights law.[33] By this perspective, an ICJ advisory opinion can spur further negotiations rather than stall them.

III.   Conclusion

The most important consideration is that the request for an ICJ advisory opinion facilitates, rather than constrains, the ambition being seen in many domestic courts. “If the goal is to secure a fast and deep decarbonization of the economy … then we need to think carefully about whether and how such suits might be best used to achieve that goal.”[34] The emphasis for the question and opinion should be to drive ambitions to reduce greenhouse gas emissions. If fortunate, the validity of environmental law can be strengthened, allowing it to flesh out human rights obligations. These human rights obligations can be breached when states do not meet their international commitments to environmental law and this breach has been recognized in domestic courts and utilized in litigation to strengthen national laws giving force to environmental treaties.

[1] Tim Stephens, International Courts and Environmental Protection 21 (2009).

[2] Id. at 22.

[3] Lavanya Rajamani Appointed External Counsel To Seek Advisory Opinion From International Court Of Justice, Oxford University faculty of law, https://www.law.ox.ac.uk/news/2021-10-27-lavanya-rajamani-appointed-external-counsel-vanuatu-government-seek-advisory-opinion (last visited Nov. 15, 2022).

[4] See generally Boyle, A., Climate Change, the Paris Agreement and Human Rights, 67 Int’l & Comp. L. 4 (2018).

[5] See, e.g., Minors Oppose v. Factora G.R. No 101083 (224 S.C.R.A. 792) (July 1993) (public trust doctrine applied in the Philippines) and M.C. Mehta v. Kamal Nath, 1 SCC 388 (December 1997) (public trust doctrine applied in India); see generally Joseph Orangias, Towards Global Public Trust Doctrines: A Transnationalization of State Stewardship Duties, 12 Transnational Legal Theory 550 (2021).

[6] Michael C. Blumm & Zach Schwartz, The Public Trust Doctrine Fifty Years After Sax and Some Thoughts on Its Future 34 (2020) (citing Mary Christina Wood, Atmospheric Trust Litigation Across the World (2012)).

[7] The State of the Netherlands v. Urgenda Foundation, ECLI:NL:PHR:2019:102, Supreme Court of Netherlands (2019) (stating government must meet emission-reduction goals set to avert harmful levels of climate change in Paris Agreement).

[8] See e.g. Massachusetts v. EPA, 549 US 497 (2007) (holding that the EPA was wrong for refusing to regulate multiple greenhouse gases…could lead to climate change-related damages).

[9] See e.g. Asghar Leghari v. Federation of Pakistan, Climate Case Chart, http://climatecasechart.com/non-us-case/ashgar-leghari-v-federation-of-pakistan/ (last visited Nov. 14, 2022) (government violating National Climate Change Policy and Framework for Implementation of Climate Change Policy by failing to meet goals).

[10] France faced a similar ruling (see Notre Affaire à Tous et al. v. France, No. 1904967, 1904968, 1904972, 1904976/4-1, Judgment, Paris Administrative Court (Feb. 2021)).

[11] VZW Klimaatzaak v. Kingdom of Belgium, et al., Judgment, Brussels Court of First Instance 47-51 (June 2021).

[12] Milieudefensie et al. v. Royal Dutch Shell plc., Climate Case Chart, http://climatecasechart.com/non-us-case/milieudefensie-et-al-v-royal-dutch-shell-plc/ (last visited Nov. 14, 2022).

[13] See Pierre-Marie Dupuy & Jorge E. Viñuales, International Environmental Law 322 (2018) (“rely heavily on domestic law and State courts operating under broad parameters set by treaty”).

[14] Stephens, supra note 1, at 78.

[15] Id. at 79; see also Robyn Eckersley, Environmentalism and Political Theory: Toward an Ecocentric Approach 174 (1992) (“…bodies such as the International Court of Justice…are salutary reminders of the ways in which institutions created by international treaties can serve to protect both human rights and threatened species and ecosystems from the ‘excesses’ of local political elites.”).

[16] Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France), ICJ Rep 288, (Weeramantry, J., dissenting) (1995).

[17] ICJ Stat. 65(1).

[18] Legal Consequences of the Separation of the Chaos Archipelago from Mauritius, Advisory Opinion, ICJ Reports (June 2017).

[19] Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports 403 (2010).

[20] Markus W. Gehring, International Environmental Law: International Adjudication, cambridge university (2022).

[21] See Jorge E. Vinuales, The Contribution of the International Court of Justice to the Development of International Environmental Law (2008).

[22] See e.g. Pulp Mills on the River Uruguay, Judgment, ICJ Reports 14 (Apr. 2010) (providing that a precautionary approach may be relevant in the interpretation and application of the provisions of the Statute, but doesn’t reverse the burden of proof).

[23] See e.g. Gabčikovo-Nagymaros Project (Hungary v. Slovakia), Judgment, ICJ Reports 7 (September 1997) (holding that the treaty be interpreted in the light of environmental standards).

[24] Dupuy and Viñuales at 89.

[25] Gabcikovo-Nagymaros Project, supra note 23, at 36.

[26] Inter-American Court of Human Rights, Judgment, Advisory Opinion 23/17 (November 2017).

[27] Boyle, supra note 4, at 777.

[28] Id. at 775.

[29] Viñuales, supra note 13, at 304 (“The openness of these bodies has changed significantly over time, suggesting that it is …their attitude towards environmental considerations that drives change.”)

[30] Richard Barnes, An ICJ Advisory Opinion On Climate Change: Can It Assist In Driving Ambition? 53 Ocean Dev. & Int’l L. 1, 34 (2022).

[31] Stephens, supra note1, at 115.

[32] Boyle, supra note 4, at 773.

[33] Id. at 777.

[34] Ben Batros, Climate Liability Suits as a Strategy for Change 1, 1 (2020).