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Rethinking Climate Change: Towards an International Court of Justice Advisory Opinion

Written by  Aaron Korman and Giselle Barcia

Climate change  is popularly reported as a story about shifting geopolitics, new and emerging economies, and scientific intrigue. Although those characterizations are accurate, climate change is most importantly about people. The consequences of climate change—melting glaciers, ocean acidification, more frequent and intense storms, and droughts —threaten people’s daily lives, cause health crises, threaten food security, destroy industries and infrastructure, render borders unstable, and cripple economies.  In Kiribati, a small island country in the South Pacific, rising seas have forced the government to prepare to resettle its entire population—and upend its ancient history, culture, and way of life.

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In September 2011, the Republic of Palau’s President, Johnson Toribiong, announced that the nation of Palau would embark on a new legal initiative to bring emissions causing climate change under control. Speaking at the Sixty-Sixth Session of the United Nations General Assembly, President Toribiong noted that climate change implicates the international rule of law and warrants consideration by the International Court of Justice (ICJ).  He called for an ICJ advisory opinion on the obligations and responsibilities of states under international law to avoid transboundary harm caused by greenhouse gas emissions.  

This Essay argues that an ICJ advisory opinion on climate change, in addition to having historic value, would have the power to reshape positively the international approach to greenhouse gas emissions. Although it could not bind states to take specific action, an ICJ advisory opinion would define, for the first time, states’ obligations and responsibilities with respect to emissions under international law. The ICJ’s authoritative advice could help develop new international norms of behavior regulating transboundary harm caused by emissions, and could provide needed clarity on the principles according to which states can negotiate effective solutions. This Essay begins by showing the gap between the international community’s understanding of the dangers of climate change and the dearth of action taken to mitigate those dangers. It continues by elaborating on the ICJ’s advisory function, highlighting the utility of past advisory opinions, and reviewing the foundational legal principles that might apply in the climate change context. This Essay concludes by affirming the practical value that an ICJ advisory opinion would have in addressing climate change.

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