Using international law to address the effects of climate change

The effects of climate change are many and severe, but rising sea-level is perhaps one of the most pressing challenges posed by global warming. Small Island Developing States (SIDS) stand at the frontline and are the most vulnerable to the impacts of climate change and rising sea levels as it presents a threat to their territorial integrity, resources, and Statehood. The effects of climate change therefore raises legal and practical questions of critical importance, such as: i) who is liable to compensate for any infrastructure required to preserve and protect the territory of SIDS; ii) will the forced relocation of SIDS nationals and the erosion of their coastlines cause the dissolution of the sovereignty of SIDS;1 and iii) how should maritime entitlements and maritime delimitation be fixed in light of rising sea-levels caused by the effects of climate change. Whilst the International Law Commission (ILC) recently formed a Study Group on ‘sea-level rise in relation to international law’,2 the project will not be completed in the nearest future, and is in its initial phase centred on the subtopics of law of the sea and possible legal effects of sea-level rise on maritime delimitations, Statehood and the protection of persons affected by sea-level rise.

As such, the work of the ILC is unlikely to directly address the obligations of States under international law to mitigate the effects of climate change and protect the rights of present and future generations from the adverse effects of climate change. The international community particularly effected by rising sea levels has therefore considered other avenues within the domain of international law in order to clarify these questions. For instance, in September 2021, the Pacific Island nation of Vanuatu announced an initiative to seek an advisory opinion (AO) from the International Court of Justice (ICJ),4 with a view ‘to clarify[ing] the legal obligations of all countries to prevent and redress the adverse effects of climate change’.5 The Pacific Island Students Fighting Climate Change (PISFCC), a group of youth from several Pacific Island countries seeking to achieve a stable and inhabitable planet for future generations, has been a significant driving factor in advocating for the initiative.6 An initiative for an AO started already in 2011 when the President of the Republic of Palau in his address to the United Nations (UN) General Assembly (GA) in September 2011 stated:

Palau and the Republic of the Marshall Islands will call on the Assembly to seek, on an urgent basis and pursuant to Art. 96 of the Charter of the United Nations, an advisory opinion from the International Court of Justice on the responsibilities of States under international law to ensure that activities emitting greenhouse gases that are carried out under their jurisdiction or control do not damage other States.7

Palau’s and the Marshall Islands’ efforts did not reach the stage of formal negotiations at the UNGA, but have inspired further attempts to explore the potential for an AO on climate change and the effects thereof.8 Since Palau’s and Marshall Islands’ declaration in 2011, several important international environmental agreements have been adopted – such as the Paris Agreement – which establishes a framework for international mitigation and adaptation efforts on climate change.9 This article explores if the time is ripe for an ICJ AO to determine what the international rule of law means in the context of climate change. It briefly sets out the background of Vanuatu’s 2021 initiative, and discusses the jurisdictional and admissibility challenges for an AO to be brought successfully, how potential questions may be phrased, as well as the potential advantages and disadvantages of an AO on climate change.