World Court Hears Largest and Most Significant Environmental Case in History
Amid the fog and chaos of wars crowding its docket, the International Court of Justice(“ICJ”), created by the United Nations Charter near the end of World War II, has this evening concluded hearing testimony and argument in the largest environmental case, ever. The Court is considering whether states that have contributed to global warming are liable to those that endure its consequences. Ninety-one nations and global organizations are appearing in this historic case, far more than in any prior case, anywhere.
The very existence of this case, whatever its outcome, is historic.
The consequences of global warming are many, and have been widely reported in the popular press, perhaps best in The Economist. They have included fiercer weather patterns of storm and drought, heat and cold, salt-water intrusion into agricultural lands, and wildfires more deadly than any in the past. But one consequence stands out for some states (“states” is the international term for “countries,” or “nations”): Many states, because of rapidly rising sea levels, will soon not have a land territory anymore. In the Pacific, think of Vanuatu, Kiribati (the former Gilbert Islands), Palau, and so many others. Off Africa, there are The Seychelles; in the Indian Ocean, The Maldives. On the Indian subcontinent, the vast majority of Bangladesh will be underwater.
Under international law, which is part of our domestic law, having a land territory is a requisite of being a “state,” a nation.
Briscoe Ivester & Bazel’s Peter Prows has spearheaded, for more than a decade, the global effort to bring this issue before the ICJ, and has appeared in The Hague on behalf of our client the Republic of Palau. Working from his own and from research and theories developed by our late colleague David Caron of UC Berkeley and its Law of the Sea Institute (“LOSI”), and David Freestone also of the LOSI, Prows developed a political and legal theory for the Republic of Palau to bring the case before the ICJ. With Peter’s guidance Palau joined forces with other small-island states, such as Vanuatu. This year Palau and the Commission of Small Island States on Climate Change and International Law convinced the International Tribunal for the Law of the Sea in Hamburg (“ITLOS”) to take a similar case, though smaller in scope. The decision in the ITLOS case was announced a few months ago; it ruled that states that emit greenhouse gases that cause damage to the marine environment, such as faster rising sea levels and ocean acidification, are in violation of international law.
Then the group convinced the U. N. General Assembly to request the ICJ for an advisory opinion on two similar, but broader questions. The ICJ accepted, an unprecedented decision on its part.
The case presents two questions, drafted by the U. N. General Assembly. The first asks, what are the obligations of states to protect the climate from anthropogenic greenhouse gas emissions? The second is, what are the legal consequences of causing significant harm to the climate?
The first question is governed by the customary international law of Transboundary Harm. That law, in brief, holds that every State is “obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State.” Precedents include Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment I.C.J. Reports 2015, p. 706, para. 104, quoting Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 56, para. 101.)
The second question, which asks the “legal consequences” for breach of those primary obligations, invokes the law of State Responsibility. That law requires cessation of the wrongful conduct, and “full reparation” for the harm caused. In environmental cases, “full reparation” includes “compensation… for damage caused to the environment, in and of itself, in addition to expenses incurred by an injured State as a consequence of such damage.” (Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation Judgment, I.C.J. 2 Reports 2018, p. 28, para. 41.) Reparation should also cover any “moral” injury suffered (Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation, Judgment, I.C.J. Reports 2012, p. 324), and damage to “the living space, the quality of life and the very health of human beings, including generations unborn” (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 241, para. 29).
Many expect a ringing decision from the ICJ that the polluting states, like the United States and China, are liable for damage caused by global warming and sea level rise to harmed states. A decision may be issued in the spring. What the practical consequences may be, of course, is not known. What is known is they will not be inconsequential. Apart from international litigation, they will affect national litigation and politics regarding climate change within every member nation of the United Nations, and those that are not members.
– John Briscoe
