THE HAGUE, NETHERLANDS – JULY 23: An inside view of International Court of Justice in The Hague, … [+] Netherlands on July 23, 2018. The International Court of Justice on Monday ruled that the United Arab Emirates had violated the rights of Qataris through the blockade it imposed on its Persian Gulf neighbor over a year ago. (Photo by Abdullah Asiran/Anadolu Agency/Getty Images)

Getty Images

On Monday, December 2, the International Court of Justice will begin hearings on an Advisory Opinion relating to the Obligations of States in respect of Climate Change. Over 100 countries and organizations will present in 30-minute increments over two weeks. At the request of the United Nations General Assembly, the ICJ will determine the existing financial liability of countries for their contribution to climate change and what actions countries must take to prevent climate change.

Here are five key facts to know going into the hearings.

What is the International Court of Justice?

The International Court of Justice was established in 1945 through the UN Charter to handle legal disputes between nations. Known as the World Court, it is an outlet for countries to settle civil disputes through a neutral court. The ICJ is based in the Peace Palace in The Hague, Netherlands, which is also the home of the Permanent Court of Arbitration. Notably, the International Criminal Court, that recently issued an arrest warrant for Israeli Prime Minister Benjamin Netanyahu, is also located in The Hague. The ICJ and the ICC operate independently with different jurisdictions.

The ICJ is composed of 15 judges elected by the UN General Assembly and UN Council to serve a term of 9 years. A country may only have one judge serving on the ICJ at a time.

The President of the Court is Judge Nawaf Salam of Lebanon. Judge Sarah Cleveland represents the U.S. The remaining judges represent Australia, Brazil, China, France, Germany, India, Japan, Mexico, Romania, Slovakia, Somalia, South Africa, and Uganda.

Why is the Court looking at climate change?

In addition to handling disputes between countries, the ICJ can also issue advisory opinions at the request of the UN General Assembly. Advisory opinions analyze legal questions and give guidance for how the Court interprets the existing law. It is a tool to understand how the Court might handle a similar issue in the future. Advisory opinions do carry extra weight, but they are not binding.

On March 29, 2023, at the request of Vanuatu, the UNGA asked the ICJ to issue an advisory opinion on the legal obligations of countries in preventing climate change. Vanuatu is an island chain in the Pacific Ocean that exerts it is experiencing increased flooding and typhoons as a result of climate change. Vanuatu will be given an hour to make an opening statement on December 2.

What questions will the Court answer?

The UNGA posed to questions to the ICJ:

“What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations”?

“What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to: (i) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change? (ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?”

Does the opinion matter?

As noted above, advisory opinions are not binding. However, this opinion will be closely watched by advocates. The final opinion will drive legislative development at the UN, EU, and at the national level. It will also create the pathway for future litigation, including before the ICJ.

What is the likely outcome?

Predicting the outcome of an advisory opinion isn’t as simple as just reading the law. The ICJ has kept all filings confidential and encouraged the parties to not share them, so it is unclear how countries are arguing. However, as an attorney that practices in the sustainability field and has followed this area of development closely, these are my thoughts.

The main document the ICJ will investigate is the Paris Agreement, an international treaty adopted to reduce the impacts of climate change. The treaty outlines a series of goals countries must meet to reduce GHG emissions to a net of zero by 2050. The net-zero 2050 goal had driven international and national policy making since 2015.

However, there has been a debate over whether the Paris Agreement is legally binding. Climate activists frequently refer to it as the “legally binding Paris Agreement.” Not all signing countries agree.

The U.S. joined the Paris Agreement without the legally required “advise and consent” from the Senate. The justification for not going to the Senate was based on the argument that it was not a legally binding agreement and, therefore, the U.S. could join through an executive order by the President. Watch for this in the ICJ opinion. If the ICJ finds the Paris Agreement is legally binding, it will inevitably draw a legal challenge in U.S. courts. Assuming President Trump has not left the agreement by that time, this Supreme Court of the United States will most likely agree the U.S. assention to the Paris Agreement is invalid without approval by the Senate.

Even if the Paris Agreement is found to be not legally binding, the ICJ could look to other documents to find an obligation. There are two key international cases that give an indicator of how the ICJ may interpret the law.

In May, the International Tribunal on the Law of the Sea issued an advisory opinion interpreting the legal obligations of states to prevent climate change under the UN Convention on the Law of the Sea. UNCLOS was adopted in 1982, going into force in 1994. The treaty was primarily designed to codify existing international law relating to the world’s oceans. Notably, the U.S. never signed UNCLOS.

While climate change is not mentioned in the treaty, there is an obligation to protect the marine environment and marine life. In the opinion, ITLOS found that language included climate change. As a result, countries that signed the treaty are obligated to reduce their GHG emissions.

It also found that “States Parties have the specific obligation to assist developing States, in particular vulnerable developing States, in their efforts to address marine pollution from anthropogenic GHG emissions.” The Tribunal found that States have “the obligation of appropriate assistance, directly or through competent international organizations, in terms of capacity-building, scientific expertise, technology transfer and other matters.” And in “granting them preferential treatment in funding, technical assistance and pertinent specialized services from international organizations.”

The ITLOS opinion shows how international courts are able to insert climate change policy into language that does not specifically address climate change.

The second notable opinion came from the European Court of Human Rights. The ECtHR interprets the legal obligations of countries under the European Convention on Human Rights. The ECHR was signed in 1952, under the Council of Europe, an organization of European countries that predates and operates seperately from the European Union. The ECHR does not mention climate change, and climate activists are trying to amend the language to include climate change as a human right, but the ECtHR found an obligation in the language.

In April, the ECtHR issued an opinion that the “protection from the impacts of climate change” is a human right under the treaty. Verein KlimaSeniorinnen Schweiz and Others v. Switzerland was brought by “four women and a Swiss association, Verein KlimaSeniorinnen Schweiz, whose members are all older women concerned about the consequences of global warming on their living conditions and health.” They claimed that the Swiss authorities failed to take sufficient legislative action to mitigate the effects of climate change, as required under the Paris Agreement. The opinion was narrowly aimed at Switzerland, but it will impact future litigation before the ECtHR.

The ECtHR opinion shows how a court can interpret language drafted before climate change was a consideration and find a legal obligation. I believe the ICJ may take a similar path.

On November 26, the Court met with scientists from the United Nation’s Intergovernmental Panel on Climate Change to “enhance the Court’s understanding of the key scientific findings which the IPCC has delivered through its periodic assessment reports covering the scientific basis, impacts and future risks of climate change, and options for adaptation and mitigation.”

This indicates the ICJ is looking beyond the black letter language of the law and exploring outside considerations. If the Court follows this path, it may find that climate change is a human right. Depending on where they find the language, it may trigger protections under the ICC as well as civil liability.

However, until the filings and oral arguments are made public, it is unclear what direction the ICJ may take.

While the hearings are open to the public, due to the large number of participating parties and the small size of the Great Hall of Justice at the Peace Palace in The Hague, seating will be limited. Only five seats will be made available to the public on a first come, first serve basis. The hearings will be streamed on the Court’s website.