Will an advisory opinion result in stronger climate protections?
Laws without enforcement are just good advice. –Abraham Lincoln
An international court delivering an opinion on climate change is a big deal. It will lead to better climate policies and give teeth to climate protection proposals around the world. Because international law, right?
Stronger climate protections could be the result, but it won’t be because of a court. And it won’t come from an advisory opinion.
You already know this: a few years ago, a community movement began in Vanuatu. With the support of University of the South Pacific law students in Fiji, Vanuatu pushed the United Nations to consider a legal question about duties that nations owe to the climate and vulnerable states.
In March 2023, the UN General Assembly, or UNGA (I pronounce it “oonga”), voted to send these questions to the hallowed halls of the International Court of Justice — or “ICJ” for the world’s acronym lovers — and to request an advisory opinion.
The ICJ, the UN’s highest court, now has before it for judicial consideration a question of whether nations of the world owe any duties to “the climate system.”
Actually, there are three questions if you count the question marks: What obligations do nations have to the climate? What consequences are there to nations that cause damage to other nations? And what about consequences to present and future generations?
Therefore, should the ICJ conclude that there are such obligations, climate protections will carry the force of customary international law. Or so we want to believe.
Allow me to make a couple of comparisons.
Twenty-six years ago, police in London entered a clinic and arrested Augusto Pinochet, an 82-year-old dictator of the South American variety who overthrew the democratically elected president of Chile —with U.S. support I might add. Around 3,000 people disappeared, and close to 40,000 individuals got to know the meaning of torture.
The United Kingdom acted on a warrant from Spain, which alleged crimes against humanity during Pinochet’s tenure in Chile. Which is to say, Britain made an arrest because Spain requested it, alleging that the arrestee performed certain acts in Chile.
With that arrest, “universal jurisdiction” became part of the world’s vocabulary, meaning that certain matters are serious enough that any country in the world can act.
In 2016, the International Tribunal for the Law of the Sea found that China violated international law in its claims for maritime boundaries, ruling in favor of the Philippines in perhaps the most significant opinion in its history.
So, what’s happened since the ICJ accepted the case?
Aside from the proposal coinciding with the U.S. Supreme Court’s opinion in West Virginia v. Environmental Protection Agency, which told the EPA it couldn’t regulate carbon emissions as air pollution without clear authority from Congress as expressed in the Clean Air Act (which is to say, it can’t), the ICJ recently closed the period for written submissions.
Upon submission of the question, the ICJ took the next step in its rules and requested written comments. Sixty-two interested parties, governments and non-governmental organizations, did so.
Greenpeace submitted a written statement. As did Oxfam, Climate Refugees, Pace University School of Law, and a lot of other NGOs. I skimmed a few of them. They read like policy white papers, academic treatise or administrative guidance. Concerns about safety included either forcing populations to stay where they are while sea levels rise or fleeing to third countries or openly hostile nations. They proposed new definitions of “refugee” to include those leaving uninhabitability.
Valid concerns, no doubt. These are very real, and very sound questions of policy and diplomacy.
But are these legal questions? Not really.
It reminds me of the U.S. federal bureaucracy. Under the Administrative Procedure Act, when a government agency proposes a rule change, it publishes the proposed rule in the Federal Register. Interested parties submit public comments. The agency writes a final rule. An interested party that will lose something under the rule sues the agency in court, not because of a disagreement with the new public policy, but because they have a legal injury creating a case or controversy under the Constitution.
An advisory opinion, by definition, is not legally binding – it is advisory, as in it gives advice. U.S. courts don’t issue them because parties must have a case or controversy.
Let’s look now at the Micronesian example. Courtesy of the Compacts of Free Association, citizens of freely associated states don’t have to worry about changing the definition of “refugee” to include climate flight; Compact migration to the U.S. already provides that. Micronesian leadership, aided and abetted by the U.S., has also squandered infrastructure funding for generations —the type of infrastructure spending that many in the climate-change-industrial-complex are now embracing.
Who has a greater stake in the future of the compacts—the U.S. facing a hostile China or Micronesians facing rising seas? Ask me in 10 years.
The ICJ will hear the climate change submission on Dec. 2.
And what happened to Pinochet and the Law of the Sea?
Spain ultimately dismissed the warrant, and Britain released Pinochet because he was a sick old man. He died a few years later. When Rodrigo Duterte took office in the Philippines, he more or less told China the Philippines would ignore its own legal victory.
International law, right?
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