The Fine Print: International Court of Justice Rules for Climate Accountability

Welcome to my monthly opinion column, The Fine Print, where I dive into a law, policy, or court case and break down how it actually affects our world today, both nationally and locally. From Supreme Court rulings to Congressional legislation, I connect the dots between legal decisions and real life. As a local high school student passionate about law and current events, I’m here to make sense of the legal world, one case at a time.

On Wednesday, July 23rd, the International Court of Justice (ICJ) released a unanimous opinion stating that member states of the United Nations (UN) have an obligation to protect people and the environment from greenhouse gas emissions, and the effects of climate change overall. While long-awaited by climate activists all over the world, the decision was surprisingly bold, given that it marks the first time the ICJ has officially expressed a view on climate change, as asserted in The New York Times. The opinion is based on the idea that protection of the environment is a necessary precursor to effectively upholding human rights, such as the rights to life, health, food, water, and housing. By tying the decision to international human rights law, the court has ensured it applies to all countries, and that violations of the decision will not be taken lightly. In fact, the court finds that member states that fail to protect the climate system may be guilty of committing an “internationally wrongful act,” which would trigger legal consequences. States found to have committed internationally wrongful acts are often obligated to cease the act immediately, release assurances of non-repetition, and provide reparations for any harm caused. However, despite the Trump administration’s clear commitment to reversing progress related to climate change, the decision may fall short of creating change in the U.S.

The International Court of Justice is the highest judicial authority in the UN, and is mainly responsible for settling legal disputes between member states and providing advisory opinions on pressing legal questions. This particular case was brought before the court by Vanuatu, a country made up of a group of islands in the Pacific Ocean, because it is disproportionately affected by disasters stemming from the burning of fossil fuels, according to The New York Times. The same problem extends to many other nations in the Pacific Island region, as they are often low-lying, and therefore are threatened by rising sea levels, causing floods, coastal erosions, and storm surges, as reported by the National Science Foundation. And much of the time, they lack the funding to address these climate concerns and to recover from natural disasters. At the same time, these nations are responsible for only a tiny percentage of global emissions, while their larger, neighboring countries are often among the world’s largest polluters. The ICJ’s decision recognizes this fact, leaving open the possibility of countries suing each other over damages caused by high levels of fossil fuel emissions, as it is scientifically possible to determine each country’s total contribution to global emissions.

Importantly, the ICJ opinion references the Paris Agreement, an international agreement adopted in 2015 on climate change, with the main goal of limiting global warming to below 2 degrees Celsius (with the target being a threshold of 1.5 degrees Celsius), relative to pre-industrial levels. The legal framework first established the need for countries to work towards reducing their greenhouse gas emissions. However, the recent opinion released by the ICJ provides an enforcement mechanism for the requirements set by the Paris Agreement, as violations can be challenged in court by nations that choose to bring suit, which had not been previously supported. The decision is also especially crucial because President Trump recently signed an order withdrawing the U.S. from the Paris Agreement, making it one of just four countries not currently part of it. Still, regardless of status in the Paris Agreement, as a member of the UN, the U.S. needs to comply with the ICJ’s decision on this ruling.

It is true that the ICJ lacks the ability to directly enforce its rulings, even if it finds that a state has committed an internationally wrongful act, as it cannot force that state to compensate another, and cannot punish the state for its noncompliance. The ICJ generally relies on good faith and an interest in maintaining international standing to ensure cooperation. But in more extreme scenarios, it can refer cases to the UN security council, which does have enforcement capabilities. The security council can impose sanctions and other restrictions on member states that have failed to comply with an ICJ judgment. The problem is, the U.S. is one of the five permanent members of the security council, and holds veto power for any decision made. And as the Trump administration pushes the Environmental Protection Agency (EPA) to revoke the 2009 declaration finding that greenhouse gases can endanger public health, to reduce regulations on power plants, vehicles, and fossil fuel companies, and to draft plans ending the EPA’s overall ability to fight climate change, we are desperately in need of an authority with the means to challenge the U.S. government. Here in New Jersey, we continue to be responsible for significant greenhouse gas emissions, mainly due to transportation. In order to shift to renewable energy alternatives, we need federal support, rather than to be stranded without a clear way out. Unfortunately, the U.S. has a long history of refusing to recognize the authority of the ICJ over its own judicial system, such as in 1984 with Nicaragua v. United States, where the court found the U.S. to have violated international law by supporting Contra rebels and mining Nicaraguan harbors. The U.S. simply rejected the ruling and refused to pay reparations, blocking enforcement of the judgment through the UN security council. There doesn’t seem to be anything stopping the U.S. from taking the same route in the future, if another nation were to sue the U.S. for its growing inaction towards addressing climate change, even on the basis of a human rights violation.

All hope is not lost. The ICJ opinion is still an incredible achievement that countries outside of the U.S. will be significantly affected by, as they will now be officially required to reduce emissions in order to avoid being brought to court by other nations. But even in the U.S., in many ways, the decision gives us another leg to stand on when demanding action in defense of our environment. The reason why, in most cases, the ICJ does not have to call upon the security council to enforce decisions, is because there is international pressure to comply with the court’s rulings, out of good faith. While we cannot force the U.S. government to abide by this ruling, and there may not be earth-shattering consequences for Trump’s actions coming from international courts, the opinion still lends us power. For one thing, continued refusal to take action to address climate change now stands to hurt our international standing, as it is in direct violation of a popular ICJ ruling, reducing our soft power as a nation in current and future diplomatic efforts. For another, climate activists within the U.S. now have a compelling moral and legal argument to wield in their favor, which will likely be effective in lawsuits against the U.S. government taking place in federal courts.

Additionally, in lower levels of government, addressing environmental protection as a human right is more than likely to invite progress. West Windsor residents involved in local campaigns concerning flooding, warehouse construction, air pollution from transportation, and other issues related to the environment should strongly consider adding this argument to their arsenal when working with elected officials, whether it is at the town, county, or state level. Actions that contribute to increased carbon emissions through an influx of trucking or a rise in traffic congestion otherwise, increased flood risks, and/or general pollution around our homes are in direct violation of our right to live safely and healthily—a right now internationally recognized.

The structure of the UN and its judicial body is clearly flawed, as it allows its permanent security council members excessive power. These members, including the U.S., can refuse to comply with any decision, no matter how reasonable and pressing, by vetoing any action taken against them in return. That structure is unlikely to change any time soon. Nonetheless, we must appreciate the groundbreaking nature of the ICJ’s ruling; if a healthy environment is considered crucial to upholding basic human rights, then it becomes harder for the U.S. government to outright deny us those rights.

Ultimately, the rest of the world is forming a concrete commitment to addressing climate change and protecting our planet by reducing emissions. Countries are now empowered to hold each other accountable for significant environmental harm. We can either get with the program, or risk being left behind.