Historic Hearings at the World’s Highest Court Could be a Gamechanger for Climate Justice

Published November 24 2024

By Joie Chowdhury, Senior Attorney of Climate Litigation and Accountability for CIEL’s Climate & Energy Program,? and Rossella Recupero, CIEL’s Communications Campaign Specialist.

The International Court of Justice is expected to issue its opinion by 2025.

From December 2nd to 13th, the International Court of Justice will hold two weeks of hearings in relation to the request for its Advisory Opinion on States’ obligations in respect of climate change. These legal proceedings, rooted in the leadership of Pacific youth, Vanuatu and campaigners worldwide have the potential to advance ambitious climate action after decades of political inertia that have plagued international climate negotiations and domestic climate policies.

Despite decades of awareness about the grave risks and impacts of the climate crisis, there is an unconscionable gap between States’ climate action and what science and justice require to avert climate catastrophe —as the weak outcomes of COP29 so clearly illustrate.

Next week, in its ongoing climate advisory proceedings, the? International Court of Justice (ICJ) will hear arguments on the questions it has been asked to clarify – in essence: a)? What are the obligations of States under international law in relation to climate change? (b) ? What are the legal consequences when States breach or do not meet these obligations??

These proceedings could influence national and regional courts' interpretation of state duties in pending and future cases, inform climate action, and help cut through the political inertia that has plagued climate negotiations and national-level climate action. The proceedings will also force an airing of government positions on key legal questions, providing an important foundation to make polluters pay.

The urgency of these questions cannot be overstated. At current levels of warming, climate change is already and increasingly devastating people's rights, lives, and livelihoods globally.? For far too long, the States most responsible for the climate crisis have failed to lead in addressing it and paying up for the harm they have caused. Now the world's highest court has a unique opportunity to set us on a different course.?

An Unprecedented Opportunity To Advance Climate Justice

We need urgent action to tackle the climate emergency. The law is one of the most powerful tools we have to change the system and hold governments and companies to account. Clarification of the law by the ICJ? in relation to climate change may pave the way to bring States to court for causing the climate crisis in the first place and not protecting their communities from its impacts, as well as failing to redress climate harm.?

Together with the International Tribunal? for the Law of the Sea (ITLOS) advisory opinion delivered in May 2024 and similar climate advisory opinion proceedings before the Inter-American Court of Human Rights (IACtHR), the ICJ climate advisory opinion (ICJ AO) process provide an unprecedented opportunity for judicial bodies to clarify that, under international law, States must urgently phase out fossil fuels effectively and equitably, align climate mitigation ambition with science, adopt effective adaptation measures, and provide remedies and reparation for impacted communities.

The Story of This Advisory Opinion

An initiative to bring the world’s biggest problem to the world’s highest court, driven by Pacific Island students, other Pacific leaders and youth, organizations, global campaigners, and the leadership of many States, especially? Vanuatu, resulted in a UN General Assembly resolution adopted by 193 States in consensus, requesting that the ICJ issue an advisory opinion on the obligations of States in relation to climate change. At a time when climate devastation is causing pervasive harm across the world, the advisory opinion proceedings exemplify the power of leadership by those most impacted by a crisis.?

An unprecedented number of States and international organizations have participated so far with the Court receiving a record 91 submissions from States and authorized international organizations in the first phase of the written proceedings in March 2024.? Civil society groups, including CIEL, also made written submissions at this stage. Subsequently, 62 submissions were received by the Court in the comments phase, which closed in August 2024. The written proceedings are now complete, and the oral hearings are scheduled to start 2 December 2024, when the Court will be hearing over 100 oral interventions from States and international organizations. Such historic levels of participation throw into stark relief the urgency, scale, and devastating impacts of the climate crisis, and the need for collective clarity on some of the most critical legal issues of our generation.?

The Hearings

The stakes are high as we prepare for the hearings. The ICJ AO oral hearings will be critically important to reinforce progressive arguments and counter those which may not be aligned with a climate justice approach. The hearing will also present a unique opportunity not just to center black letter law but to humanize the climate crisis through the use of compelling testimony and creative strategies.?

Major polluters have long denied and sought to evade and dilute legal responsibility for climate change in multilateral negotiations and in courts. This may be indicative of the approach such nations will take in the upcoming hearings. Akin to a modern-day David and Goliath story, some of the world’s major polluters and some of the world’s most climate-vulnerable nations will be arguing in front of the Court. Will State arguments in Court match up to their claims of climate leadership?

6 Key Legal Issues to Follow in the ICJ Climate Hearings?

1. ?The Law Governing State Obligations in Relation to Climate Change: Judges must consider multiple relevant sources of international law, including but not limited to human rights law, customary and treaty-based international environmental law, climate law, and the law of the sea. ?Best available science must inform the interpretation of legal obligations as must the experiences of affected and marginalized communities worldwide.
2. Human Rights of Present and Future Generations: States have a legal obligation to respect, protect, and fulfill the human rights of present and future generations, including the rights of Indigenous Peoples, in the face of the climate crisis. Particular attention must be paid to disproportionately affected and historically marginalized communities.
3. The Preventive and Precautionary Approach: States must take proven actions in line with their legal duties, including complying with the preventive and precautionary principles. They must not rely on dangerous distractions like carbon offsets or speculative, unproven, and risky technologies to tackle the climate emergency in lieu of known, proven solutions.
4. The Right to Remedy and Reparations:? Those most responsible for the climate crisis must remedy and repair their harm. Those whose acts and omissions have caused significant harm to the climate system, with consequences for human rights and the environment, must respect the right to remedy, cease their harmful conduct, guarantee non-repetition, and provide full reparation, including compensation, restitution, satisfaction, and rehabilitation.
5. Corporate Accountability: States have a duty to rein in corporations driving the climate emergency. States must halt these industries’ physically destructive and socio-politically deceptive business activities and make polluters pay.
6. The Equitable Phase Out Fossil Fuels: Fossil fuels are driving the climate emergency.? There is a legal duty under international human rights and environmental law to phase them out fast and fairly.?

Judges should seize this opportunity to issue a strong advisory opinion to clarify the legal obligations of States in relation to the climate crisis, and provide a legal roadmap for the protection of people and the planet.

The Road Ahead

It is vital that?the ICJ delivers a strong, paradigm-shifting? opinion that advances climate justice and human rights, including by affirming that those most responsible for the climate crisis must remedy and repair the resulting harm. In clarifying what the law means, the ICJ AO will provide critical guidance to States and courts, alike, influencing decisions about policy and law. Notably, the power of law is not only in its enforcement when disputes arise, but in its capacity to prevent such disputes from arising in the first place by aligning understandings of what conduct is permissible and what is not.?

The ICJ AO is not just a legal process. The campaign pre-dating and surrounding the proceedings reflects how these proceedings carry the full weight of the expectations of those most impacted by the climate emergency.? The call for justice and solidarity from frontline communities has never been clearer.? This AO may have the capacity to ensure the legacy inherited by future generations is one of collaboration and accountability. A legacy that makes certain that the planet that they will live on is governed by a legal regime that ensures its longevity and the enjoyment of human rights by all.

But, while? the ICJ advisory proceedings hold the promise of providing a transformative legal blueprint to unlock much-needed climate ambition, it is? not an end goal? in the journey towards climate justice. The struggle for accountability neither begins nor ends with negotiations or courts. More and more people across generations and regions are coming together to hold States and corporations accountable for their climate harm and fight for a secure, liveable future. In this might lie our biggest hope.

The hearings can be watched here. Read more on our webpage.?