What the international court's landmark opinion means for Pacific islands

By James C. Pearce

The International Court of Justice issued a unanimous ruling in response to the questions posed by the UN General Assembly regarding the Obligations of States in respect of Climate Change.

The court's non-binding advisory opinion now allows countries to sue each other over climate change and its adverse effects. Most experts agree: this is a landmark ruling, a milestone, a game changer, choose another superlative. The question is not its immense positive significance, but rather how significant it really is.

First, the ruling now codifies states’ legal obligations and responsibilities concerning climate change. Governments’ failure to act on climate change can now be argued to be a breach of law, with potential legal, financial and diplomatic consequences.

The ruling is seen as a victory for small countries that are vulnerable to climate change. They came to court after feeling frustrated about the lack of global progress in tackling the problem.

So, Vanuatu can now sue the U.S. The Marshall Islands can take China to court. Either of those eventualities beforehand would have been unthinkable. Indeed, countries have already begun implementing the ruling.

In developed countries, it lends new credence and a sense of purpose to environmentalist groups and green parties, which have had very modest electoral success in Europe. Some are even entering government under coalition

agreements. Any further coalitions involving Greens will now likely be conditioned on a greater sense of climate justice (also defined as a human right.

That will mean the big states and other political parties start acting better. The threat of litigation and exposure will significantly influence policy considerations going forward.

Many governments will simply not want the hassle or waste time and resources on this. Another plus is that the court concluded fossil fuel production is included in the scope of conduct that can potentially be in breach of international law. It has put the big producers of fossil fuels on notice.

Allowing new production projects or granting fossil fuel subsidies can be a breach of international law and can constitute a wrongful act.

Now here comes the "however." The court's advisory opinions are not legally binding, and the court cannot compel countries to abide by its findings. Many will not (read China and the U.S.) Neither the U.S. nor China is part of its compulsory jurisdiction. You have Ronald Reagan to thank for that.

The opinion stops short of creating direct obligations under international law, as well. Instead, it affirmed the duty of states to regulate private actors (businesses) more effectively. There are ways to address this, such as closing regulatory gaps, ensuring businesses internalize risk, and avoiding becoming safe havens for corporate climate irresponsibility.

However, governments must have the political will to do so. Right-wing governments, in vogue at present, are not on board with saving the planet and reducing climate change. They often downplay its risks or dismiss it as a hoax.

Moreover, a lack of clarity on enforcement mechanisms, the voluntary nature of many corporate climate pledges and jurisdictional limits seem to have prevented the court from imposing more stringent obligations on high-emitting corporations.

Developed countries argued during hearings that existing climate agreements, including the landmark UN Paris deal of 2015, are sufficient and no further legal obligations should be imposed.

If a country is meeting these obligations, and in some cases going further, its argument is simply "pick on someone else."

However, the court rejected arguments from some high-emitting states that climate treaties are the only applicable law to the climate crisis, excluding broader international law. It found that multiple sources of law impose legal duties on states to prevent “transboundary environmental harm,” act with precaution, and take due diligence measures to reduce greenhouse gas emissions and adapt to the adverse impacts of climate change.

While greenhouse gas emissions are not unlawful, the court stated that failure to take appropriate measures to prevent foreseeable harm can constitute a wrongful act attributable to the state. But the lawyers reading this will now say, "What does ‘can’ mean?" It means not necessarily.

The court also said that states "can" provide reassurance against further breaches. There is a gaping loophole. The final part of this equation is the hard part: it will require immense amounts of evidence to prove a particular country is at fault.

While the court did not apportion blame or quantify compensation, it clarified that such determinations are legally permissible but-- and it is a big but-- it must be made on a case-by-case basis based on a “sufficiently direct and certain causal nexus” between the wrongful act and the harm suffered.

The ruling commits nations to work together in a cooperative and good-faith manner. Europe has been burning fossil fuels since the Industrial Revolution. It has already done a lot to clean up its act – and is doing more.

Other countries have far less. Smaller countries may, therefore, wish to think twice about whom they take to court and why, lest diplomatic rifts cause aid packages to dry up.

Nevertheless, this ruling provides smaller countries and the Pacific with much greater leverage. The opinion carries weight as an authoritative interpretation of law, and has the potential to reshape global climate governance. We should all be celebrating.

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