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US: Climate Change Accountability

Updated: Apr 24

Source: UCS

How International Courts Can Drive Climate Action

Fossil fuel companies are well established as founts of disinformation, agents of obstruction, and drivers of climate change. From Pulitzer-prize winning investigations to groundbreaking scholarly research, the evidence of their knowledge and deception is irrefutable. And yet, these corporations continue to sow disinformation and reap record-breaking profits. Their omnipresent influence on national politics and international negotiations has trapped consumers in a fossil fuel-dependent system and threatens to delay climate action even further, with the most severe consequences for those already in the most vulnerable situations. Taken together, the need for governments to meaningfully regulate these super polluters has never been clearer.

Reflective of this growing need for accountability, governments are also seeking guidance—packaged in advisory opinions—from international courts about the role and obligations of national governments in light of increasingly severe climate impacts. This guidance has been solicited from the International Tribunal for the Law of the Sea (ITLOS), Interamerican Court of Human Rights (IACtHR), and International Court of Justice (ICJ). While the outcomes of these advisory opinions will likely focus on the role of states (in this context, individual countries), UCS, in collaboration with others, has highlighted the need to regulate corporations as a key responsibility for states.

What is an advisory opinion?

Advisory opinions provide a court or judge’s interpretation of a law, and are delivered in response to a question from an official, agency, or government. These opinions are separate from any particular case, and instead, provide broad guidance for governments in their specific legal context. Past opinions from these international bodies have helped to shape debate and international law around key issues like the human right to the environment (IACtHR Advisory Opinion 2018) and the use of nuclear weapons in armed conflict (ICJ Advisory Opinion 1996). The latter opinion contributed to the development of the Treaty on the Prohibition of Nuclear Weapons. While the outcome of these climate-focused advisory opinions will unfold over the next several years, they have the potential to similarly shape international law and policy.

What role does science play in climate advisory opinions?

The questions before these courts are legal in nature. However, science plays a key role in bolstering and supporting these legal arguments. Attribution science highlights the connections between climate change and extreme events, and quantifies the contribution of major corporate carbon producers to climate change and its impacts, while social science research on disinformation showcases the historical and on-going deception perpetrated by fossil fuel companies. In addition, critical research about current and projected impacts provides critical evidence about the risks and harms confronting communities across the world.

For the IACtHR advisory opinion, which seeks clarity on the obligation of states to address climate change under international human rights law, the Union of Concerned Scientists submitted an amicus brief, co-authored with the Center for International Environmental Law, Greenpeace International, Climate Law Accelerator, and Open Society Justice Initiative, using scientific evidence to make the case that regulating corporations is a key part of states’ role in the climate fight. We draw attention to the outsized role that a small number of business enterprises have had in driving climate change and obstructing action. Within the broader climate community, these various advisory opinions represent an exciting opportunity to move climate action forward and elevate the voices of those most impacted by climate change.

Which courts are expected to issue Advisory Opinions?

International Tribunal for the Law of the Sea (ITLOS) – The United Nations Convention on the Law of the Sea (UNCLOS) established ‘a legal framework for all marine and maritime activities’ and created ITLOS to resolve disputes related to the interpretation and application of the UNCLOS treaty. The Commission of Small Island States on Climate Change and International Law (COSIS) requested an advisory opinion to understand the obligations of State Parties to UNCLOS to ‘prevent, reduce, and control marine pollution’ and ‘protect and preserve the marine environment.’ Oral hearings for this advisory opinion occurred during September of last year, with an opinion expected in early 2024.

InterAmerican Court of Human Rights (IACtHR) – Created as part of the American Convention initiated following World War II, the IACtHR is one of the judicial arms of the American Convention. The governments of Chile and Columbia jointly requested an advisory opinion from this body, to clarify states’ obligations in light of climate change within the frame of international human rights law. Their petition to the court emphasizes the urgency of climate change as an issue facing countries around the world, specifically in Latin America, and the need to respond “based on the principles of equity, justice, cooperation, and sustainability.”

International Court of Justice (ICJ) – The ICJ is the legal arm of the United Nations, and provides advisory opinions in response to requests from the United Nations General Assembly (UNGA) or select other UN affiliated organizations. The request for the recent climate advisory opinion was led by the Republic of Vanuatu, a small island nation in the South Pacific, in coordination with 17 other nations. In March 2023, the resolution was adopted by the UNGA by consensus. The questions before the court focus on two key themes: 1) the obligations of states to protect the climate system; and 2) the legal consequences for states that have caused damage to the climate system. The second question specifically interrogates the legal consequences for harming states in relation to the most climate-impacted states, including small island nations, and to future generations, who will bear none of the responsibility for climate change but the brunt of the impacts.

As my colleague Delta Merner wrote, the right to a stable climate is one that courts are only beginning to explore. Courts in Montana have recently affirmed this right, while in Hawaii, courts confirmed the human right to a stable environment. Internationally, 110 countries have enshrined the human right to a healthy environment into their constitutions, like Costa Rica did in 1994. This right, however, is by no means accepted as a universal one. This year, with pending advisory opinions before the IACtHR, ITLOS,  and the ICJ, we can expect to see more science in the courtroom, and science in service of climate action and justice.


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