International Court of Justice

The International Court of Justice (ICJ) [] is often called the UN Court, or the World’s Court. There have been several attempts taking the climate change issues to the ICJ.

The ICJ is a very interesting platform for high-profile and legal development. The ICJ was created when UN member states agreed upon the Statute of the International Court of Justice. Only states were able to sign the statute, therefore it only has the competency to deals with cases brought by states, and does not for example with matters of private law between two individuals. That means individuals cannot bring cases to the ICJ against companies, groups of individuals or other governments. But, successful civil society campaigns - such as the campaign for the Ban of Nuclear Weapon successfully changed the global view of nuclear weapons sufficiently to persuade governments to back resolutions at the UN General Assembly.

Advisory Opinion

So far, there has been no authoritative ruling that indicates the world’s highest court’s attitude on state obligation regarding mitigation and adaptation to climate change. A current campaign seeking an Advisory Opinion from the ICJ is being led by World's Youth for Climate Justice []. The group is seeking a UN General Assembly vote to refer the matter to the ICJ. States have plenty of existing human rights obligations anchored in different international treaties. However, human rights are still not prominently featured in international climate change negotiations spaces, and human rights - based cases and arguments have rarely been acknowledged widely. Therefore, the Advisory Proceedings from the International Court of Justice can not just summarize existing obligations, but with sufficient civil society pressure may deliver a progressive opinion that can develop intergenerational equity and climate justice as concepts in international law.

An Advisory Opinion is non-binding, which means that the ICJ cannot enforce and strictly speaking states are not obliged to implement whatever the ICJ has declared in the Advisory Opinion. However, in the past, the AOs have helped to clarify international law, they are of high legal and moral authority and have in some cases led to very concrete international treaties.

Although this is not litigation in the very traditional sense of the word, since there is no concrete case put before the judges and no binding consequences are laid out for either party, an authoritative clarification of state obligations with regards to the human rights of current and future generations relating to climate change, will may encourage states to take more ambitious action under the Paris Agreement.

Contentious Case

There is also the option of putting climate change before the court as a contentious case. That means that two states bring a dispute to the ICJ and accept its jurisdiction. This strategy is not without risks. It is a lot less facilitative, but rather imposes obligations or consequences on the ‘losing state’. There is the risk of producing a negative precedent. It would require one state to take the diplomatic risk of taking another state to the world’s highest court. It is unlikely that states will accept a binding ruling by the ICJ on their obligations relating to climate change. Static climate change negotiations and diplomacy have demonstrated this over the years. It is unclear how an ICJ decision in a contentious case would impact the UNFCCC negotiations. The decision only has direct implications on the two state parties involved, which means other states are not automatically obliged to follow the court’s judgement. This is problematic considering the transboundary, international nature of climate change and its impacts.

One big advantage of a contentious case strategy, is that it sets a precedent. If the court rules in favor of the climate-vulnerable country and imposes obligations on the other state party, this can motivate states at risk of being taken to the ICJ (so for example states with a similar history of pursuing polluting and extractive activities) to change their policies, in order to avoid facing consequences by before the court and risk becoming ‘the next one’.