THE PEACE PALACE, THE HAGUE, July 23  – The world’s highest court in the largest and, perhaps in time most momentous case in history, ruled this morning that countries that have emitted pollutants contributing to climate change must address that “urgent and existential threat” by taking steps, and cooperating, to curb emissions. What is more, the International Court of Justice said, failure to meet their climate obligations may make those countries liable to countries harmed by climate change.

Ninety-one nations and global organizations appeared in this case, far more than in any prior case in history.

The opinion was a victory for small-island and low-lying states (e.g., Bangladesh) that had asked the court to specify responsibilities of nations. Our firm, led in this case by Peter Prows, represented the Republic of Palau and developed legal theories which were embraced by other small-island nations (“states” in international parlance), which were in turn embraced by the Court today.

Judge Yuji Iwasawa, President of the ICJ (sometimes called the World Court), said countries were obligated to comply with the “stringent obligations” placed on them by climate treaties and failure to do so was a breach of international law.

“States must cooperate to achieve concrete emission reduction targets,” Iwasawa said, as he read aloud the court’s opinion.

National climate plans, the Court ruled, must be of the highest ambition and collectively maintain standards to meet the aims of the 2015 Paris Agreement.

Under international law, the Court wrote, “The human right to a clean, healthy and sustainable environment is essential for the enjoyment of other human rights.” Having reviewed decades of climate science, and taken in the views of former and present members of the Intergovernmental Panel on Climate Change, the Court went on, “Greenhouse gas emissions are unequivocally caused by human activities which are not territorially limited.” Rich industrialised countries have been responsible for the most emissions, the Court found, ruling those countries must take the lead in addressing the problem.

The consequences of global warming are many, and have been widely reported in the popular press. They have included fiercer weather patterns of storm and drought, heat and cold, salt-water intrusion into agricultural lands, and wildfires more deadly than any in the past. But one consequence stands out for some states: Many, because of rapidly rising sea levels, will soon not have a land territory anymore. In the Pacific, think of Vanuatu, Kiribati (the former Gilbert Islands), Palau, and so many others. Off Africa, there are The Seychelles; in the Indian Ocean, The Maldives.  On the Indian subcontinent, the vast majority of Bangladesh will be underwater.  

Under international law, having a land territory is a requisite of being a “state,” a nation.

Briscoe Prows Kao Ivester & Bazel’s Peter Prows has spearheaded, for more than a decade, the global effort to bring this issue before the ICJ, and appeared in The Hague in these proceedings on behalf of our client the Republic of Palau. Peter worked from his own work and from work and theories developed by our late colleague David Caron of UC Berkeley and its Law of the Sea Institute (“LOSI”), David Freestone also of the LOSI, and this author (who among other assignments served as Special Adviser to the United Nations forming the tribunal to hear the vast  environmental claims against Iraq after the Gulf War). From that work Prows developed a political and legal theory for the Republic of Palau to bring the case before the ICJ. With Peter’s guidance Palau joined forces with other small-island states, such as Vanuatu. Last year Palau and the Commission of Small Island States on Climate Change and International Law convinced the International Tribunal for the Law of the Sea in Hamburg (“ITLOS”) to take a similar case, though smaller in scope.  The ITLOS ruled that states that emit greenhouse gases that cause damage to the marine environment, such as faster rising sea levels and ocean acidification, are in violation of international law.

The present case presented two questions. The first asked, what are the obligations of states to protect the climate from anthropogenic greenhouse gas emissions?  The second asked the legal consequences of causing significant harm to the climate?

The first question is governed by the customary international law of Transboundary Harm. That law, in brief, holds that every State is “obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State.”  Precedents include Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment I.C.J. Reports 2015, p. 706, para. 104, quoting Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 56, para. 101.) 

The second question, which addressed the “legal consequences” for breach of climate obligations, invokes the law of State Responsibility. That law requires cessation of the wrongful conduct, and “full reparation” for the harm caused. In environmental cases, “full reparation” includes “compensation… for damage caused to the environment, in and of itself, in addition to expenses incurred by an injured State as a consequence of such damage.” (Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation Judgment, I.C.J. 2 Reports 2018, p. 28, para. 41.) Reparation should also cover any “moral” injury suffered (Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation, Judgment, I.C.J. Reports 2012, p. 324), and damage to “the living space, the quality of life and the very health of human beings, including generations unborn” (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 241, para. 29). 

What the ultimate consequences of today’s decision may turn out to be is, of course, not known. What is known is they will not be inconsequential. Apart from international litigation, they will affect national litigation –international law is part of American domestic law, it should be remembered.  And it will affect politics regarding climate change within every member nation of the United Nations, and those that are not members, for decades to come.

— John Briscoe