The International Court of Justice, also known as the World Court of Justice, is one of the six main organs of the United Nations. It settles disputes between nations in accordance with international law and provides advice on international legal issues. It is the only international court that settles 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 that the General Assembly had passed by consensus a resolution asking the International Court of Justice for an advisory opinion on states’ obligations regarding climate change, with most speakers hailing the move as a milestone in their decades-long fight for climate justice. The Assembly decided to ask the Court to issue an advisory opinion on the obligations of states under international law to ensure the protection of the climate system against anthropogenic greenhouse gas emissions.
The resolution further asked for the Court’s ruling on the legal consequences for states whose acts or omissions have caused significant damage to the climate system vis-à-vis other nations – particularly small island states and people of present and future generations. In the debate on the motion, many member states expressed concern that the countries that have historically contributed least to the unfolding climate catastrophe are being disproportionately affected by the consequences.
The resolution was first promoted by Vanuatu, a Pacific island nation disproportionately affected by global warming. Six villages on four of the islands have been relocated as rising sea levels have made water supplies so salty they are undrinkable. Cyclones and warmer ocean waters have destroyed coral reefs. Vanuatu’s most valuable commodity is tuna, but the fish are moving further and further away from territorial waters as the temperature of the ocean around it rises, according to the New York Times.
Many other island nations agreed to support Vanuatu’s proposed petition, with several African and Asian countries also adding their support. By the time the draft resolution was voted on in the General Assembly, 105 countries had signed up as co-sponsors. Vanuatu is also among a group of vulnerable island nations pushing for a global fossil fuel non-proliferation treaty.
While most countries expressed their support for the Court’s request for an opinion, a few expressed reservations. The United States representative disagreed that the resolution is the best way to achieve shared goals. Initiating a judicial process, especially given the broad scope of the issue, may not be conducive to supporting such diplomatic processes, he said. Successfully addressing the climate crisis is best achieved through diplomatic efforts.
United Nations Secretary-General António Guterres said the move would “help the General Assembly, the UN and member states take the bolder and stronger climate action our world so desperately needs.” The petition to the court asks it to give an opinion on whether governments have “legal obligations” to protect people from climate hazards and, more importantly, whether failure to meet those obligations could have “legal consequences” . What those consequences could 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 nations. That’s true, but it has the potential to turn the voluntary commitments each country has made under the Paris Climate Agreement into legal obligations under a range of existing international statutes, such as those on the rights of children or the Universal Declaration of Human Rights . That in turn could lay the groundwork for new legal claims. Some national courts have already relied partly on international law to rule in favor of lawsuits brought by climate activists.
The United States has historically been the largest emitter of greenhouse gases in history, though China and India are about to take over that dubious distinction. What the US says and does affects other countries, as evidenced by the deluge of new investment in clean energy and transportation technologies in America following the passage of the Inflation Reduction Act last year. There are dozens of climate cases pending in state and federal courts across the United States, and at some point the US Supreme Court will face this issue.
We know that the six members of the conservative supermajority on the Supreme Court have all been coddled and promoted by fossil fuel interests. Despite their sincere protests during their various confirmation hearings that they would abide by the law and respect precedents set over decades, once anointed they can do as they please and it is more than likely that they will will choose to protect the interests of their benefactors whom they brought before the Court in the first place.
That said, there is a legitimate question about what the proper role of the Supreme Court is – whether any court – should be. In theory, courts interpret the laws they are given and enacted by Congress. The legislature is responsible for putting the will of the people into action. Courts only have the power to strike down such laws if they conflict with the provisions of the constitution. Traditionally, they are extremely reluctant to make new laws on their own, if only because they are the only branch of government that is appointed, not elected.
There are plenty of lawyers who believe that a court should not jump into the middle of a case political debateeven if a country’s political leaders are deadlocked and unable to resolve political disputes on their own. On the other hand, if the Earth is altered in a way that threatens the survival of the human species, is a court not obliged to act, even if it goes against the generally accepted limits of judicial discretion ? There is no one-size-fits-all answer to that question.
There are numerous cases involving the US Supreme Court has interfered in political issues in a significant way. Brown vs Education Board struck down the “separate but equal” fiction that Congress dared not ignore. That decision led directly to the court ordering desegregation programs in schools that rocked the country in the 1970s. The echoes of that exercise of judicial power can still be heard in America. In 2000, a pivotal election was decided by one vote — that of Chief Justice John Roberts — in Bush versus Gore. It’s hard to argue that all those decisions weren’t heavily loaded with political considerations.
The takeaway meals
The petition to the International Court of Justice is only symbolic. That court has no jurisdiction to enforce any of its decisions. But any ruling of it would amount to moral persuasion and that might be enough to influence other courts on it Doing have power to enforce their rulings. It could be a marker, a moment in time that could send ripples through the world community. Who says that a court in Massachusetts or Hawaii could not include an opinion of the International Court of Justice in its own deliberations? It may not be binding legal advice, but it’s not trivial either. It could be another nail in the coffin of fossil fuels before they turn the Earth into a coffin for humanity.
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