The International Court of Justice Takes On Climate Change

The nation of Vanuatu consists of eighty-three islands arrayed in the shape of a shaggy “Y” in the South Pacific. Some of the islands are deserted; some have glorious white beaches, and some active volcanoes. Vanuatu has fewer people than Wichita. Its economy is smaller than Vermont’s, and its military consists of three hundred volunteers. But, diplomatically speaking, it punches above its weight.

Thanks to the maneuverings of Vanuatu, the entire industrialized world effectively went on trial this month in The Hague. The case, before the fifteen-member International Court of Justice, is about climate change. Do countries have a legal as well as a moral obligation to prevent a planetary disaster? And, if they violate those obligations, what should the consequences be? Roughly ninety countries submitted written testimony in the case, and a similar number sent representatives to the Netherlands to make oral arguments. The proceedings have been called “landmark,” “historic,” “momentous,” and a “watershed moment.”

“I choose my words carefully when I say that this may well be the most consequential case in the history of humanity,” Ralph Regenvanu, Vanuatu’s special envoy for climate change and environment, told the court. “Let us not allow future generations to look back and wonder why the cause of their doom was condoned.”

The United States has a vexed relationship with the I.C.J., often called the World Court, which is the judicial arm of the United Nations. The U.S. actively participates in cases before the court, but reserves the right to reject any judgments that it doesn’t like. (The I.C.J., which hears civil cases, is distinct from the International Criminal Court, also in The Hague, which the U.S. is not a party to.)

In the climate case, the U.S. has a lot at stake. Although no country is actually named in the proceedings, the U.S., as the world’s top historical emitter, is clearly the leading target. Next up is China, then, in descending order, the nations of the European Union, Russia, Brazil, and Indonesia. “A handful of readily identifiable states have produced the vast majority” of the problem, Regenvanu said. “Yet other countries, including my own, are suffering the brunt of the consequences.”

In The Hague, the U.S. has argued that there’s really no need for the case. The world already has a mechanism for dealing with climate change, and that is the travelling road show of international negotiations. “The United States encourages the court to ensure that its opinion preserves and promotes the centrality of this regime,” Margaret Taylor, the State Department’s legal adviser, told the judges. In a rare display of unity, China made much the same argument. So did Saudi Arabia. “The specialized treaty regime on climate change provides a complete answer to the questions” before the court, the Saudis’ representative, Prince Jalawi Al Saud, said.

Everyone in the wood-panelled courtroom, including, presumably, the Americans, Chinese, and Saudis, could see the flaws in this argument. The “regime” Taylor alluded to began with the so-called Earth Summit, which took place in Rio de Janeiro in 1992. The summit produced a global compact to “prevent dangerous anthropogenic interference with the climate system,” but the treaty left vague both the meaning of this phrase and the mechanism for achieving it. In 2015, after more than two decades of wrangling, world leaders agreed to try to limit warming to 1.5 degrees Celsius (2.7 degrees Fahrenheit). This threshold, it is widely agreed, will soon be breached. Meanwhile, global CO₂ emissions continue to rise; in 2024, they are expected to hit a new high. Emissions of methane, an even more potent greenhouse gas, are also increasing. At this point, only action at an unprecedented pace and scale can prevent the world from warming by a disastrous 2 degrees Celsius, and, under current policies, the temperature increase could easily exceed 3 degrees Celsius (5.4 degrees Fahrenheit) by the end of the century.

“We’re out of time,” the U.N. Secretary-General António Guterres declared shortly before the last round of negotiations began, in mid-November. The session was held in Azerbaijan, a country where oil and gas sales account for two-thirds of the government budget, and was generally regarded as a bust. In the words of one commentator, “The assessment has to lie between failure and disaster.” The triumph of Donald Trump, who has pledged to increase fossil-fuel production and to (yet again) pull the U.S. out of the negotiating process, makes progress over the next four years seem unlikely.

It is precisely because this “regime” has proved so woefully—indeed, world-historically—inadequate that Vanuatu pressed for the case now before the World Court. As James Hansen, the former head of NASA’s Goddard Institute for Space Studies, put it in his testimony in The Hague, “Climate change must be brought to the International Court of Justice because young people, developing nations, and indigenous people have nowhere else to turn.” 

Rulings from the I.C.J. are only advisory. Nevertheless, the court’s opinion, expected early next year, could be, as the journal Nature put it, a “game changer.” Globally, more than two thousand climate cases have already been filed. (The bulk of these are before U.S. courts, but several hundred have been filed in other countries.) A strongly worded ruling would likely lead to many more filings. Courts all around the world look to the I.C.J.’s decisions for guidance, as do other international tribunals. “The I.C.J. proceedings could establish that addressing climate change is not just a matter of political will or voluntary pledges—it is a binding legal responsibility,” Grethel Aguilar, the director general of the International Union for Conservation of Nature, a group also testifying in The Hague, said.

For Vanuatu, though, even a ruling that counts as a victory won’t really amount to one. The nation, considered one of the world’s most vulnerable to the impacts of climate change, has had to relocate six villages owing to sea-level rise, and the government has identified dozens of others that may have to soon move. More losses have already become inevitable. “Climate displacement of populations is the main feature of our future,” Regenvanu has said. “That’s the reality.” ♦