climate change litigation

The conference of parties to UNFCCC does not provide for an enforcement mechanism, meaning that States cannot be held to account for missing their targets under the Paris Agreement. Nevertheless, climate change litigation has taken off at a national level in recent years and the number of cases where individuals or national environmental groups have held governments or companies to account for their climate-related policies is growing. Over 1,800 cases have been filed recently, mainly in the United States, Australia, the United Kingdom, Germany, the Netherlands, New Zealand, Canada, Nepal, Pakistan and Spain. Using climate attribution science, which establishes the relationship between anthropogenic emissions and specific extreme weather events, claimants are able to quantify the environmental impact of projects, policies and laws and the ensuing rulings demanding governmental action based on human rights doctrines are becoming more common. The UN Human Rights Council passed a resolution in 2021 declaring the human right to a clean environment, this was echoed by a UN General Assembly resolution in 2022 and calls to make mass environmental destruction, known as ecocide, a crime against humanity are growing.

With specific regard to the ocean, Part XII of UNCLOS provides a robust framework calling on States to protect the marine environment. Article 192 includes the obligation to protect the marine environment, article 194 to prevent, reduce and control pollution, and article 197 sets down the duty to cooperate. While a State to State dispute on climate change is unlikely, the advisory opinions from the International Tribunal for the Law of the Sea and the International Court of Justice could lead to the establishment of mechanisms or best practices in order to control or mitigate climate change.

The Commission of Small Island Developing States on Climate Change and International Law, established at COP26 in 2021 to submit a request for an advisory opinion to ITLOS, did just that in 2022, putting the following questions:

What are the specific obligations of State Parties to the United Nations Convention on the Law of the Sea (‘UNCLOS’), including under Part XII:

(a) to prevent, reduce and control pollution of the marine environment in relation to the deleterious effects that result or are likely to result from climate change, including through ocean warming and sea level rise, and ocean acidification, which are caused by anthropogenic greenhouse gas emissions into the atmosphere?

(b) to protect and preserve the marine environment in relation to climate change impacts, including ocean warming and sea level rise, and ocean acidification?

At the instigation of Vanuatu, the UN General Assembly requested an Advisory Opinion from the ICJ in April 2023, posing the following questions:

“Having particular regard to the Charter of the United Nations, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the United Nations Framework Convention on Climate Change, the Paris Agreement, the United Nations Convention on the Law of the Sea, the duty of due diligence, the rights recognized in the Universal Declaration of Human Rights, the principle of prevention of significant harm to the environment and the duty to protect and preserve the marine environment,

(a) 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;

(b) 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?”

Both of these cases are now in the written phase, during which States and relevant organizations may submit their views on the questions to the two bodies. Hearings at ITLOS are likely to be held before the end of 2023, the ICJ in 2024. The advisory opinions should be delivered during the course of 2024 and 2025.

dive in deeper

Opinio Juris: ITLOS Advisory Opinion on Climate Change and Oceans: Possibilities and Benefits

EJIL:The Podcast! Episode 18 – “Be Careful What You Ask For”

ASIL: International Law and Climate Change: We are All Climate Lawyers Now

Stop Ecocide International