The International Court of Justice, sometimes known as the World Court, is one of the six principal organs of the United Nations. It settles disputes between nations in accordance with international law and gives advisory opinions on international legal issues. It is the only international court that adjudicates general disputes between countries, with its rulings and opinions serving as primary sources of international law.
In a press release on March 29, the United Nations announced the General Assembly had adopted by consensus a resolution requesting an advisory opinion from the International Court of Justice on the obligations of States in respect to climate change, with most speakers hailing the move as a milestone in their decades long struggle for climate justice. The Assembly decided to request the Court to render an opinion on the obligations of States under international law to ensure the protection of the climate system from anthropogenic emissions of greenhouse gases.
The resolution further requested the Court’s opinion on the legal consequences for States that by their acts or omissions have caused significant harm to the climate system with respect to other nations — particularly small island countries and people of present and future generations. In the debate over the motion, many member states expressed concerns that the nations who have historically contributed the least to the unfolding climate calamity are being disproportionately affected by the consequences.
The resolution was promoted first by Vanuatu, a Pacific island nation that is being disproportionately affected by global heating. Six villages on four of its islands have been relocated, as rising sea levels have turned water supplies so salty that they are undrinkable. Cyclones and warmer ocean waters have destroyed coral reefs. Vanuatu’s most valuable commodity is tuna, but the fish are increasingly moving away from its territorial waters as the temperature of the ocean surrounding it increases, according to the New York Times.
Many other island nations agreed to support the petition proposed by Vanuatu, then several African and Asian nations added their support as well. By the time the draft resolution came up for a vote at the General Assembly, it had 105 nations signed on as co-sponsors. Vanuatu is also among a group of vulnerable island nations pressing for a global fossil fuels nonproliferation treaty.
While most countries voiced support for the request of the Court’s advisory opinion, a few expressed reservations. The representative of the United States voiced disagreement that the resolution is the best way to reach shared goals. Launching a judicial process, especially given the broad scope of the question, might not be conducive to supporting such diplomatic processes, he said. Successfully tackling the climate crisis is best achieved via diplomatic efforts.
United Nations Secretary General, António Guterres, said the move “would assist the General Assembly, the UN, and member states to take the bolder and stronger climate action that our world so desperately needs.” The petition to the court asks it to render an opinion on whether governments have “legal obligations” to protect people from climate hazards and, more importantly, whether failure to meet those obligations could bring “legal consequences.” What those consequences might be is left open.
The Proper Role Of A Court
The New York Times says any ruling by the International Court of Justice would be advisory only and not binding on any nations. That is correct, but it has the potential to turn the voluntary pledges that every country has made under the Paris climate accord into legal obligations by virtue of a range of existing international statutes, such as those on the rights of children or the Universal Declaration of Human Rights. That could, in turn, lay the groundwork for new legal claims. A few national courts have already relied in part on international law to rule in favor of climate activists’ lawsuits.
The United States is historically the largest emitter of greenhouse gases in history, although China and India are close to taking over that dubious distinction. What the US says and does impacts other nations, as seen by the flood of new investments in clean energy and transportation technologies in America following the passage of the Inflation Reduction Act last year. There are dozens of climate suits pending in state and federal courts in the United States and at some point the US Supreme Court will confront this issue.
We know the six members of the conservative super-majority on the Supreme Court have all been pampered and promoted by fossil fuel interests. Despite their heartfelt protestations during their various confirmation hearings that they would adhere to the law and respect precedents set over the decades, once they are anointed, they can do whatever they choose and it is more than likely they will choose to protect the interests of their benefactors who put them on the Court in the first place.
That being said, there is a legitimate question about what the proper role of the Supreme Court — or any court — should be. In theory, courts interpret the laws they are given, which are enacted by Congress. The legislative branch is responsible for putting the will of the people into action. Courts have the power to strike down any such laws only if they contravene provisions of the Constitution. Traditionally, they are extremely reluctant to make new law on their own if for no other reason than that they are the only branch of government that is appointed, not elected.
There are plenty of legal scholars who would argue that a court should not jump into the middle of a political debate, even if the political leaders of a country are deadlocked and unable to resolve political disputes themselves. On the other hand, if the Earth is being changed in ways that threaten the very survival of the human species, doesn’t a court have the obligation to act even if it contravenes commonly accepted limits on judicial discretion? There is no clear cut answer to that question.
There are numerous instances in which the US Supreme Court has inserted itself into political issues in a significant way. Brown Vs. Board of Education struck down the “separate but equal” fiction that Congress dared not override. That decision led directly to the court ordered school desegregation programs that roiled the country in the 70s. The echoes of that exercise of judicial power are still being heard in America today. In 2000, a pivotal election was decided by one vote — that of Chief Justice John Roberts — in Bush Vs. Gore. It is hard to argue that any of those decision were not heavily laden with political considerations.
The petition to the International Court of Justice is symbolic only. That court has no power to enforce any of its decisions. But any ruling by it would amount to moral suasion and that might be enough to influence other courts that do have the power to enforce their rulings. It might be a marker, a moment in time that could send ripples through the world community. Who is to say that a court in Massachusetts or Hawaii might not incorporate an advisory opinion from the International Court of Justice into its own deliberations? It may not be a binding legal opinion, but it’s not trivial either. It could represent one more nail in the coffin of fossil fuels, before they turn the Earth into a coffin for humanity.
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