1
There can be no doubt that the reality of climate change is no longer a dire warning about the future. It is here. Climate change is more than the gradual warming of the earthâs atmosphere. It will usher in a complete reshaping of our natural world. The climate crisis poses risks for all of humanity. States are already experiencing devastating losses caused by increased frequency and severity of disasters, such as cyclones, catastrophic flooding, and wildfires. For a discrete number of States at risk of losing the entirety of their territory due to sea level rise, the threat is existential.1 Tragically, those States that are most at risk for experiencing the adverse impacts of climate change tend to be the least responsible for its cause.2
The Paris Agreement was seen as a breakthrough in the global communityâs efforts to fight climate change. Despite the initial optimism surrounding the agreement, States are falling far short of meeting the stated goal to hold the increase in global temperature to âwell belowâ 2ºC and pursue efforts to limit the increase to 1.5ºC. The Paris Agreement offers limited pathways to pursue accountability for the failure of States to meet their existing pledges under the agreement or for failing to make pledges sufficient to meet the aims of the agreement.3 States have thus far been reluctant to consent to compulsory dispute resolution before the ICJ to resolve disputes over the interpretation or application of the UNFCCC and the Paris Agreement, and other dispute resolution mechanisms envisioned in these treaties have yet to be operationalized.
In the face of these obstacles and with time running out to avoid the most devastating consequences of climate change, States are pursuing creative solutions in an effort to move the needle forward on climate change before it is too late. Nowhere is this clearer than in the requests for advisory opinions from the ICJ, ITLOS, and the IACtHR, and a potential future request to the AfCHPR.4
These efforts are illustrative of what I term âjurisdictional ingenuityâ, meaning the pursuit of alternative jurisdictional avenues when direct pathways to dispute resolution under the relevant legal framework are weak or unavailable under international law. Jurisdictional ingenuity is also the creation of jurisdictional pathways. In the case of the climate change advisory opinion requests, this can be observed in at least three ways. First, through the creation of a new international organization for the purpose of conferring jurisdiction on an existing tribunal.6 Second, by utilizing diplomatic tools to achieve an advisory opinion request that was previously out of reach. Third, by framing the legal questions in the requests in such a way that the forthcoming advisory opinions have the potential to create further avenues of dispute resolution.
Deploying jurisdictional ingenuity through multiple requests for advisory opinions on the obligations of States in the context of climate change has many potential benefits as well as risks. The expected opinions to be issued in relatively short succession may lead to cross-regime interaction that may result in a more comprehensive approach to addressing the climate crisis than if action had been pursued through the climate regime alone.7 However, there is also a risk that decisions will produce fragmented or contradictory outcomes that cause confusion, or worse yet, hinder progress towards solving the climate crisis.8
Jurisdictional ingenuity in the context of the climate emergency is a survival mechanism. For States that face an existential threat from climate change, jurisdictional ingenuity is just one strategy among many to confront the crisis. Deployed by small States, jurisdictional ingenuity is one way in which they
2 Jurisdictional Pathways under the Climate Change Regime
The UNFCCC was adopted in May 1992 and came into force in March 1994. Together with the 1997 Kyoto Protocol and the 2015 Paris Agreement, it constitutes the legal framework governing climate change under international law (âclimate change regimeâ or âclimate change frameworkâ).10 This chapter focuses on the jurisdictional provisions of the UNFCCC and the Paris Agreement as the relevant legal frameworks for the resolution of disputes between States regarding their obligations in the context of climate change.11 As this chapter is focused on jurisdictional pathways for the resolution of disputes between States, it distinguishes dispute resolution procedures from compliance mechanisms and enforcement as while they are interrelated, they remain distinct.
The UNFCCC initially envisioned both non-adversarial procedures as well as traditional State-to-State dispute resolution procedures. Article 13 of the UNFCCC provides for the potential âestablishment of a multilateral consultative processâ that would be âavailable to Parties on their request, for the resolution of questions regarding the implementation of the Convention.â12 During negotiations for the UNFCCC, this cooperative procedure was thought to be more appropriate for addressing the collective challenges of climate change.13 According to Daniel Bodansky, the COP could have designed the multilateral consultative process to allow for individuals, international organizations, or NGO s to have standing to participate in the process.14 A Multilateral Consultative Committee was considered at COP4 and COP5, but was never implemented
Article 14 of the UNFCCC outlines the provisions for the settlement of disputes between State Parties on its interpretation or application. It was initially drafted to complement the multilateral consultative process outlined in Article 13, which, as explained above, has yet to be implemented. Under Article 14, States must first seek to settle disputes through negotiation or another peaceful means of dispute settlement. Should negotiation fail to resolve a dispute within twelve months, States can request the establishment of a conciliation commission and submit their dispute to conciliation. Alternatively, should both parties have recognized one of the compulsory dispute mechanisms outlined in Article 14, namely the submission of a dispute to the ICJ or arbitration, States can submit their disputes using the compulsory procedures. Article 14 was drafted as a compromise to accommodate the disparate views of State parties, some of which preferred non-mandatory and non-binding procedures, others of which preferred mandatory and binding procedures.17
Under Article 24 of the Paris Agreement, the dispute resolution provisions of Article 14 of the UNFCCC apply mutatis mutandis to the Paris Agreement. While a panel of experts is currently developing a conciliation annex that was considered in advance of COP28,18 the COP has yet to adopt the required additional procedures on conciliation or compulsory arbitration envisioned by Article 14 of the UNFCCC.19 The Solomon Islands and Tuvalu have consented to compulsory arbitration pursuant to Article 14 and only one State, the Netherlands, has consented to compulsory arbitration and the compulsory jurisdiction of
Given the lack of State consent to compulsory arbitration or the compulsory jurisdiction of the ICJ, conciliation is the default method of dispute resolution for the vast majority of States should negotiation fail. A conciliation commission may be created at the request of one of the parties to a dispute pursuant to the basic procedures established under Article 14(6). However, in the absence of a conciliation annex, it is unclear what procedures would apply beyond the number of members to be appointed to a conciliation commission and by whom.23 The absence of clear procedures may act as a âdisincentiveâ to the resolution of a dispute through conciliation as the parties would have to first negotiate the applicable procedures.24 Furthermore, any decision by the conciliation commission would not be legally binding as it only has the authority to issue a ârecommendatory awardâ for parties to âconsider in good faith.â25
Should that fail, the secondary mechanisms for the resolution of the dispute are not currently available as the mechanism for compulsory arbitration has not been established and only one State has agreed to the compulsory jurisdiction of the ICJ. As the negative impacts of climate change accelerate, States experience devastating effects that result in the loss of life and enormous economic losses. The current structure and implementation of the UNFCCC and Paris Agreement leave impacted States without clear pathways for the resolution of disputes on the interpretation and application of the conventions most applicable to confronting the challenge of climate change.
States have pushed for alternatives to conciliation or inter-State dispute resolution mechanisms to provide some measure of redress for losses suffered due to the adverse impacts of climate change or to secure greater compliance
Faced with this reality that a direct pathway to dispute resolution under the climate framework is weak or unavailable, States have exercised jurisdictional
The contentious jurisdiction of the ICJ is based on State consent.32 Disputes come to the court through special agreement in which parties specifically refer matters to the Court, through treaties and conventions that provide for the jurisdiction of the ICJ, or through the compulsory jurisdiction of the court if both States have recognized the same obligation.33 Under the compulsory jurisdiction of the court, a State could submit a dispute related to â(a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; (d) the nature or extent of the reparation to be made for the breach of an international obligation.â34
With respect to climate change, it is unlikely that a large emitter State would agree to a special agreement to resolve a dispute regarding the adverse impacts of climate change.35 The most relevant treaties that provide for the jurisdiction of the ICJ in their dispute resolution clauses are the UNFCCC and the Paris Agreement, although there are potentially others that could be used.36 As outlined above, only the Netherlands has consented to the compulsory jurisdiction of the ICJ pursuant to either the UNFCCC or the Paris Agreement.
Currently, only 74 States have deposited declarations under the optional clause of Article 36(2) of the Statute of the ICJ recognizing its general compulsory jurisdiction.37 Among those, most have included what Aloysius Llamzon describes as âevisceratory caveats.â38 While it is possible that a State
In 2002, Tuvalu briefly considered suing the United States and Australia for their failure to join the Kyoto Protocol.40 While Tuvalu stated at the time that it would pursue a case before the ICJ, it is unclear how it would have obtained jurisdiction for such a dispute.41 It could have accepted the compulsory jurisdiction of the ICJ and pursued a case against Australia, but the United States withdrew its consent for such jurisdiction in 1985.42
A contentious case would present enormous challenges and significant political risks for any State pursuing this strategy.43 A State could bring a case alleging another State failed in its obligation to prevent the adverse impacts of climate change or contributed to climate change. However, as described by Philippe Sands, the obligations under the UNFCCC are âcrushingly vague,â making it âimpossible to argue that any particular provision gives rise to a cause of action.â44 Written on the eve of the negotiations of the Paris Agreement, Sandsâ
It is not clear under international law that historic GHG emissions or current failures to adopt more ambitious nationally determined contributions would constitute a breach of an international obligation. Much of the historic emissions occurred prior to the signing of the Paris Agreement or the UNFCCC. Actions that occurred prior to these agreements coming into force could not constitute noncompliance with obligations under the respective agreements, and States that are not currently parties do not have obligations pursuant to the agreements absent an argument that any obligations are reflective of customary international law. Compelling arguments have been made that other principles of international environmental law, such as the âno harm rule,â are applicable in the context of climate change.45 Further arguments have been made that failure to reduce emissions following the ratification of the UNFCCC could amount to an internationally wrongful act under Articles 2 and 4.2 of the UNFCCC,46 although this perspective is âwithout consensus.â47 Even if a State could demonstrate these actions constituted a breach of an international obligation, there would be issues in determining attribution and causation related to any specific harm given the global contributions to the underlying causes of climate change.
Concerns about attribution and causation aside, an authoritative interpretation of the obligations of States with respect to climate change under international law could help to clarify what action or inaction by States constitutes a breach of an international obligation. This could reduce the uncertainty to some extent as to the utility of a potential contentious case interpreting obligations under the UNFCCC, the Paris Agreement, or more broadly under international law before the ICJ. As the next section explains, advisory opinions seeking such an answer could potentially provide this essential interpretation in an area where, to date, there has yet to be a State-to-State dispute.48
3
The pursuit of advisory opinions in multiple jurisdictions is an example of what I am terming jurisdictional ingenuity, as it corresponds to a pursuit of alternative jurisdictional avenues when direct pathways to dispute resolution under the relevant legal framework are weak or unavailable.
Jurisdictional ingenuity as a strategy is distinct from forum shopping in that it focuses on jurisdiction creation or lowering the barriers to accessing potential jurisdictional pathways as compared to selecting between existing and competing jurisdictions.49 Although as employed in the context of the climate change advisory opinion requests, it raises some similar concerns, such as potentially inconsistent opinions from different courts and tribunals and risk of fragmentation.50
Jurisdictional ingenuity is also distinct from what Laurence Helfer has termed âregime shifting,â which attempts to âmov[e] treaty negotiations, lawmaking initiatives, or standard setting activities from one international venue to another.â51 Parties engaged in jurisdictional ingenuity as described are not attempting to shift the regime from one international venue to another. Rather, they are seeking out jurisdictional pathways to influence the existing regime, in this case, the climate framework. This is not to say that there is no risk that jurisdictional ingenuity could contribute to regime shifting. However, on its own, jurisdictional ingenuity does not constitute a regime shift.
Framing this strategy as âingenuityâ is a purposefully positive framing. The States that are pursuing this strategy have provided leadership on combating climate change for decades.52 While the positive framing is reflective of jurisdictional ingenuity in the context of climate change, an examination of other examples of this jurisdictional strategy would be a valuable comparison,
The following will explore three illustrative avenues of jurisdictional ingenuity in the context of climate change. First, the creation of an international organization to confer jurisdiction on an existing tribunal. Second, the utilization of diplomatic tools to achieve an advisory opinion request on climate change that was previously out of reach. Third, the framing of the legal questions in the requests to create future avenues of dispute resolution.
3.1 The Creation of an International Organization for the Purpose of Conferring Jurisdiction on an Existing Tribunal
to promote and contribute to the definition, implementation, and progressive development of rules and principles of international law concerning climate change, including, but not limited to, the obligations of States relating to the protection and preservation of the marine environment and their responsibility for injuries arising from internationally wrongful acts in respect of the breach of such obligations.55
The agreement is comprised of only four articles. The activities of COSIS outlined in the agreement are to assist other Small Island States in the promotion and progressive development of international law on climate change, appoint experts and advisors, and, most importantly, the agreement authorizes COSIS to request advisory opinions from ITLOS âon any legal question within the scope of the [UNCLOS].â56
In the Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), 23 States submitted written statements that objected to ITLOS exercising its advisory jurisdiction in that case on the grounds that UNCLOS does not contain an explicit reference to the advisory jurisdiction of ITLOS. Despite these concerns, ITLOS determined that it has advisory jurisdiction pursuant to Article 288 of UNCLOS, Article 21 of the Statute of the Tribunal, and Article 138 of the Rules of Procedure.
While ITLOS did exercise its advisory jurisdiction, the separate declaration of Judge Cot highlighted some of the weaknesses in the Tribunalâs approach, calling the reasoning âconvolutedâ and âunpersuasive,â and its interpretation âmisguided.â61 He highlighted the need to elaborate a clear jurisdictional framework for when ITLOS will exercise its advisory jurisdiction and warned of the âdangers of abuse and manipulationâ by States âseek[ing] to gain an advantage over third Statesâ through the execution of a bilateral or multilateral agreement.62
Whether the full tribunal of ITLOS had advisory jurisdiction was a live issue in the case.68 While many States and international organizations submitted written statements that ITLOS had jurisdiction to render an advisory opinion,69
In its Advisory Opinion of May 21, 2024, ITLOS found that it had jurisdiction to issue an Advisory Opinion in the case pursuant to Article 21 of the Statute and the COSIS Agreement.73 It relied on the SRFC Advisory Opinion to outline that its jurisdiction includes âall âmattersâ ⦠specifically provided for in any other agreement which confers jurisdiction on the Tribunal,â and that the COSIS Agreement meets that requirement.74 In addition to statements provided by States during the written and oral proceedings in support of the exercise of jurisdiction, the Tribunal noted that States recently concluded the Agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ). The convention specifically allows the BBNJ COP to request an advisory opinion from ITLOS.75 Given that the agreement was adopted by consensus, it provides strong evidence that State parties to UNCLOS consider that they may confer advisory jurisdiction on ITLOS through a separate agreement.76
What may now see obvious was not necessarily evident at the time the COSIS Agreement was executed. While it was certainly possible that ITLOS would exercise its advisory jurisdiction in this case, it was not guaranteed when the request for an advisory opinion was submitted, much less when the COSIS agreement was concluded. The Creation of the Commission is a powerful example of jurisdictional ingenuity as the creation of jurisdictional pathways as well as the leadership of small-island states.
3.2 The Utilization of Diplomatic Tools to Open a Jurisdiction Pathway
Jurisdictional ingenuity in the context of climate change has involved utilizing diplomatic tools to achieve an advisory opinion request on climate change that was previously out of reach. The idea that states might utilize international adjudication to address issues related to climate change is not new.79 Neither is the idea of seeking an advisory opinion from the ICJ. Yet, to date, there has not been a state-to-state dispute related to climate change. Until the March 2023 General Assembly Resolution, efforts to request an advisory opinion on climate change from the ICJ had failed to come to fruition.
In 2011, Palau, together with the Marshall Islands, announced that it would call on the UN General Assembly âto seek, on an urgent basis ⦠an advisory opinion from the [ICJ] on the responsibilities of States under international law to ensure that activities emitting [GHG] that are carried out under their jurisdiction or control do not damage other States.â80 Although Palau had built a coalition of small island and other interested states,81 it was reportedly pressured by the United States to drop the initiative.82 It never came to the floor of
The current ICJ advisory opinion request illustrates the potential when multilateral diplomacy fueled by grassroots advocacy comes to fruition.84 In 2019, a group of law students from eight Pacific Island countries founded the Pacific Islands Students Fighting Climate Change (PISFCC).85 PISFCC started a campaign to persuade states to seek an Advisory Opinion from the ICJ on the issue of climate change and human rights, a call first answered by Vanuatu.
Vanuatu worked over the course of several years with a âCore Groupâ of States to gain diplomatic support for a UN General Assembly Resolution on a âRequest for an advisory opinion of the [ICJ] on the obligations of States in respect of climate change.â86 It sought input from a wide range of stakeholders in framing the legal question to be included in the draft resolution. While the content of the question has not been without its detractors,87 the efforts to reach some sort of consensus appear to have paid off. The resolution was adopted on March 29, 2023, with 132 co-sponsors. It was the first request for an advisory opinion from the UN General Assembly to be adopted by consensus.88 According to Vanuatu, this sends âa strong and unambiguous signal that
Through the use of diplomatic tools for this advisory opinion request, the ICJ may contribute to the normative development of international law on climate change on a faster timetable than would be possible had they waited for a future State-to-State dispute to arrive through the underutilized dispute settlement mechanism of the UNFCCC or the compulsory jurisdiction of the ICJ. Of course, while the ITLOS decision was generally received positively, it remains to be seen if the ICJ opinion will help or hinder the ability of States to address the threat of climate change.
3.3 Framing the Legal Questions to Create Future Avenues of Dispute Resolution
The legal questions in the requests for advisory opinions also represent jurisdictional ingenuity. In this way, jurisdictional ingenuity can be synergistic and may contribute to the systemic integration of climate change law.90 In this context, the legal questions are framed in such a way that they will open the doors to future avenues of dispute resolution across regimes. Or, in the words of Margaretha Wererinke-Singh, the opinions have the potential to âmak[e] international law more actionable through climate litigation.â91
The ITLOS advisory opinion provides evidence of jurisdictional ingenuity as a way to connect disparate areas of law as well as create future pathways for dispute resolution. UNCLOS was negotiated well before climate change was recognized by the General Assembly as a âcommon concernâ in 1988.92 It was
The question posed to ITLOS was phrased in such a way to bridge the gap between UNCLOS and the climate change regime. It asked the tribunal for an advisory opinion on the obligation of State parties to UNCLOS to (a) âprevent, reduce and control pollution of the marine environmentâ from the effects of climate change, including through ocean warming and sea level rise, and ocean acidification, which are caused by greenhouse gas emissions into the atmosphere, and (b) âto protect and preserve the marine environment in relation to climate change impacts, including ocean warming and sea level rise, and ocean acidification.â In short, one of the main issues the question posed to the Tribunal was to address the open question of whether the emission of GHG constitutes âpollution of the marine environmentâ within the meaning of UNCLOS and what specific obligations flow from that potential threshold determination.
In terms of the applicable law, neither the COSIS Agreement nor the request for the advisory opinion mentions either the UNFCCC or the Paris Agreement. The request for the advisory opinion was submitted pursuant to UNCLOS and involves the interpretation and application of UNCLOS. However, the interpretation of the legal questions seemed to necessitate reference to the UNFCCC and the Paris Agreement. Indeed, many States in their written submissions expressed that the UNFCCC and the Paris Agreement were the âprimary instrumentsâ to guide the interpretation of the obligations of States in relation to climate change.96 Other States suggested that ITLOS was permitted to refer to the UNFCCC and related agreements pursuant to Part XII of UNCLOS,97 but clarified that it was limited to determining the obligations under UNCLOS and not under related treaties.98
Prior to the current advisory opinion effort or even the creation of COSIS, Alan Boyle, among others,103 argued that UNCLOS provided a viable pathway for the settlement of disputes on the obligations of States to protect and preserve the marine environment from the effects of climate change.104 A State could bring a case against another state party to UNCLOS alleging its lack of compliance with the pollution control obligations of UNCLOS. As Boyle pointed out, there are challenges in pursuing this effort. One is the enormous financial resources required to pursue arbitration. The other was the indeterminacy of the meaning of pollution under UNCLOS.105 While some argued that it was clear that climate change and the emission of GHG constitute pollution within the meaning of UNCLOS,106 that issue had yet to be determined until ITLOS issued its advisory opinion.
The determination that GHG emissions constitutes âpollutionâ potentially opens other avenues for State-to-State dispute resolution related to climate change outside of the dispute settlement regime of UNCLOS. As explained by Steve Lorteau, this type of âstate-as-polluterâ litigation is in some ways a well-worn path under international law.108 ITLOS elaborated on the due diligence obligations of States in context of climate change, finding that the standard âis stringent, given the high risks of serious and irreversible harm to the marine environmentâ from GHG emissions.109 The Tribunal also found that states have specific obligations to ensure that GHG emissions within their jurisdiction and control do not cause transboundary harm. In this context, the obligation is âeven more stringent ⦠because of the nature of transboundary pollution,â in that pollution from one state that spreads beyond its jurisdiction has the potential to âcause damage to other States and their environment.â110 The opinion also noted that a State may incur international responsibility if it âfails to complyâ with the obligation to âtake all necessary measures to prevent, reduce and control marine pollution from anthropogenic GHG emissions, including measures to reduce such emissions.â111 Thus, the opinion may make it easier in the future for a State to establish that another State failed to comply with its obligation of due diligence to prevent transboundary harm from GHG emissions.
If the ICJ opinion builds on the ITLOS opinion, it could open the door to future state to state dispute resolution even wider. The legal question in the request for an advisory opinion from the ICJ is much broader than the request submitted to ITLOS. As a court of general jurisdiction, the ICJ has the opportunity to interpret the question with reference to any body of international law.
According to counsel for Vanuatu, the legal question in the request for an advisory opinion from the ICJ is framed in such a way as to offer the court an opportunity to provide an avenue for States to pursue compensation for climate harms, including those caused by past actions.113 Under paragraph (b), the question asks, â[w]hat are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harmâ to the climate and the environment?114 Julian Aguon, counsel to Vanuatu, recently described that part of the legal question as being âthe home for reparations.â115 While it does not seem likely that the ICJ will find that historic emissions prior to the UNFCCC constitute an internationally wrongful act116 or that historic emitters have an obligation to make reparations for damage caused by climate change, it does seem to be the hope of many behind the effort that an advisory opinion will open a pathway for such potential future action.117 These do not appear to be isolated hopes. Counsel for Vanuatu wrote elsewhere that â[a]n advisory opinion from the ICJ on the issue of compensation could set the stage for further international litigation â¦ââ118
Jurisdictional ingenuity in the context of climate change may be synergistic in another way. It may allow for further climate litigation to move forward at the regional or domestic level in jurisdictions that incorporate international law.119 Several landmark decisions on climate change have come from regional120 and domestic courts121 and progressive articulation of the obligations of States in respect of climate change could lead to future litigation to push States to adopt more ambitious climate targets.
4 Potential Risks of Jurisdictional Ingenuity in the Context of Climate Change
As explained above, jurisdictional ingenuity can open up legal pathways through alternative jurisdictional avenues when direct pathways to dispute resolution are weak or unavailable. Jurisdictional ingenuity can also be synergistic by approaching litigation strategy in such a way as to create future pathways for dispute resolution. Jurisdictional ingenuity is not without risks, however. Generally speaking, jurisdictional ingenuity can lead to fragmentation in the law. With respect to climate change, it has the potential to clarify obligations in a less progressive way than hoped for by its advocates and could potentially undermine future progress within the climate regime.
Jurisdictional ingenuity has the potential to lead to fragmentation in the law.122 This is particularly true where, as here, the strategy is pursued through
The concern about fragmentation is not unique to jurisdictional ingenuity,125 nor is it a new concern in the field of environmental law. As explained by Tim Stephens, âjurisdictional competitionâ between various multilateral and bilateral agreements related to international environmental law has led to forum shopping, simultaneous proceedings, and successive proceedings in international environmental law.126
While proponents of the advisory opinion requests are hopeful that it will lead to much needed positive action on climate change, it is not at all clear that the opinions will result in such an outcome.127 An opinion at the ICJ that merely confirms that States have a duty of due diligence or an obligation to cooperate under customary international law is unlikely to change the status quo.128 It would further entrench the notion that international environmental obligations are framed in terms of âconduct and not of result.â129 Even a seemingly progressive opinion announcing that States have an obligation under international law to compensate States for loss and damage caused by climate
5 Conclusion
Jurisdictional ingenuity in the context of the climate emergency has the potential to transform the legal landscape. For States that are at risk of losing the entirety of their territory due to sea level rise, it is an attempt to avoid the most severe consequences of climate change before it is too late.132 Although there are risks of fragmentation in the law and there is no guarantee of a positive result, there is potential for substantive outcomes that will lead to future progress on addressing the dire threat of climate change.
Assistant Professor of Law at the William S. Richardson School of Law, University of Hawaiâi at MÄnoa. ORCID No. 0000â0003-4842-3654.
Melissa Stewart, âCascading Consequences of Sinking Statesâ (2023) 59 Stanford JIL 131.
Margaretha Wewerinke-Singh, âThe Rising Tide of Rights: Addressing Climate Loss and Damage Through Rights-Based Litigationâ (2023) 12 Transntâl Envât L 537, 538.
Progress has been made on the establishment of the Paris Agreement Implementation and Compliance Committee (a mechanism envisioned in Article 15 of the Paris Agreement). However, this mechanism is designed only to âencourage complianceâ in a way that is âtransparent, non-adversarial and non-punitive.â This type of âmanagerial modelâ of compliance is distinct from an âenforcement modelâ of compliance. See Abram Chayes & Antonio Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Harvard University Press 1996); Andrew T Guzman, âA Compliance-Based Theory of International Lawâ (2002) 90 California LR 1823, 1830; Tim Stephens, International Courts and Environmental Protection (CUP 2009) 104â105.
Benoit Mayer & Harro van Asselt, âThe Rise of International Climate Litigationâ (2023) 32 RECIEL 175, 176.
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226.
Agreement for the Establishment of the Commission of Small Island States on Climate Change and International Law (adopted 31 October 2021, entered into force 31 October 2021) 3447 UNTS (COSIS Agreement).
Christina Voigt, âThe Power of the Paris Agreement in International Climate Litigationâ (2023) 32 RECIEL 237.
Daniel Bodansky, âAdvisory Opinions on Climate Change: Some Preliminary Questionsâ (2023) 32 RECIEL 185; Benoit Mayer, âInternational Advisory Proceedings on Climate Changeâ (2023) 44 Michigan JIL 41; Melissa Stewart, âClimate Change Advisory Opinion Requests: Risk and Rewardâ (Lawfare, 24 March 2023) <www.lawfaremedia.org/article/climate-change-advisory-opinion-requests-risk-and-reward> accessed 14 January 2024; Maria Antonia Tigre & Armando Rocha, âCompeting Perspectives and Dialogue in Climate Change Advisory Opinionsâ, 117 AJIL Unbound 287, 288â289. See also, Susan Ann Samuel & Jorge Alejandro Carrillo Bañuelos, Chapter 4 in this book.
See Douglas Guilfoyle, âSmall States, Legal Argument, and International Disputesâ (CIL Dialogues, 7 July 2023) <https://cil.nus.edu.sg/blogs/small-states-legal-argument-and-international-disputes/> accessed 14 January 2024; see also Douglas Guilfoyle, âLitigation as Statecraft: Small States and the Law of the Sea,â (2023) 1 British YIL 1.
Daniel Bodansky, âThe History of the Global Climate Change Regimeâ, in Luterbacher & Sprinz (eds), International Relations and Global Climate Change (MIT Press 2001) 32â35.
Voigt (n 7) 238.
UNFCCC, art 13.
Daniel Bodansky, âThe United Nations Framework Convention on Climate Change: A Commentaryâ (1993) 18 Yale JIL 451, 547.
ibid, 548.
Xueman Wang & Glenn Wiser, âThe Implementation and Compliance Regimes under the Climate Change Convention and its Kyoto Protocolâ (2002) 11 RECIEL 181, 186; Clara Reichenbach, âThe Missing Dispute Resolution Mechanisms in International Climate Change Agreementsâ (2022) 3 Global Energy Law & Sustainability 129, 134.
Roda Verheyen & Cathrin Zengerling, âInternational Dispute Settlementâ, in Carlarne, Gray and Tarasofsky (eds), The Oxford Handbook of International Climate Change Law (OUP 2016) 419.
Daniel Bodansky, Jutta Brunnée & Lavanya Rajamani, International Climate Change Law (OUP 2017) 115.
âICCA Launches Panel of Experts to Develop a Paris Agreement Conciliation Annexâ (ICCA, 10 February 2023) <www.arbitration-icca.org/icca-launches-panel-experts-develop-paris-agreement-conciliation-annex.> accessed 14 January 2024.
Catherine Amirfar & Merryl Lawry White, âThe Paris Agreementâs Conciliation Annex: If Not Now, Then When?â (ASIL Insights, 15 September 2021) <www.asil.org/insights/volume/25/issue/17> accessed 14 January 2024.
UNFCCC, Declarations by Parties <https://unfccc.int/process-and-meetings/the-convention/status-of-ratification/declarations-by-parties> accessed 14 January 2024.
Amirfar & White (n 19).
Bodansky, Brunnée & Rajamani (n 17) 115; Reichenbach (n 15) 129; Maria Antonia Tigre & Margaretha Wewerinke-Singh, âBeyond the North-South Divide: Litigationâs Role in Resolving Climate Change Loss and Damage Claimsâ (2023) 32 RECIEL 439, 442.
The Paris Agreement Draft Conciliation Annex was presented to 50 state representatives in November 2023. âThe ICCA Panel of Experts Engages with States on the Paris Agreement Draft Conciliation Annexâ (ICCA, 29 November 2023) <www.arbitration-icca.org/icca-panel-experts-engages-states-paris-agreement-draft-conciliation-annex> accessed 14 January 2024.
Reichenbach (n 15) 143.
UNFCCC, art 14(6).
Arthur Wyns, âCOP27 Establishes Loss and Damage Fund to Respond to Human Cost of Climate Changeâ (2022) 7 The Lancet 21 <www.thelancet.com/journals/lanplh/article/PIIS2542-5196(22)00331-X/fulltext> accessed 14 January 2024; Maxine Burkett, âReading Between the Red Lines: Loss and Damage and the Paris Outcomeâ (2016) 6 Climate Law 118.
M.J. Mace & Roda Verheyen, âLoss, Damage and Responsibility after COP21: All Options Open for the Paris Agreementâ (2016) 25 RECIEL 197, 198.
Vanuatu, Draft Annex Relating to Article 23 (Insurance) for Inclusion in the Revised Single Text on Elements Relating to Mechanisms (A/AC.237/WG.II.Misc.13) Submitted by the Co-Chairmen of Working Group II, Negotiation of a Framework Convention on Climate Change (17 December 1991) A/AC.237/WG.11/CRP.8 <www.aosis.org/an-insurance-mechanism-for-the-consequences-of-sea-level-rise/> accessed 14 January 2024.
Wyns (n 26).
âWhat you Need to Know about the COP27 Loss and Damage Fundâ (UN Environment Program, 29 November 2022) <www.unep.org/news-and-stories/story/what-you-need-know-about-cop27-loss-and-damage-fund> accessed 14 January 2024. Operationalization of the new funding arrangements, including a fund, for responding to loss and damage referred to in paragraphs 2â3 of decisions 2/CP.27 and 2/CMA.4 (UNFCCC, 13 December 2023) <https://unfccc.int/documents/636558> accessed 14 December 2023. Nina Lakhani, â$700m Pledged to Loss and Damage Fund at COP28 Covers Less than 0.2% Neededâ The Guardian (Dubai, 6 December 2023) <www.theguardian.com/environment/2023/dec/06/700m-pledged-to-loss-and-damage-fund-cop28-covers-less-than-02-percent-needed> accessed 14 December 2023.
The United States deputy special envoy for climate at the State Department, Sue Biniaz, was recently quoted as saying she was âviolently opposedâ to the idea that the USA and other high emitting or developed countries have âa legal obligation to pay into the fund.â Valerie Volcovici, âUS Seeks Focused, Efficient Fund for Climate Disastersâ (Reuters, 23 August 2023) <https://www.reuters.com/sustainability/sustainable-finance-reporting/us-seeks-focused-efficient-fund-climate-disasters-2023â08â23/> accessed 14 January 2024.
Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 892 UNTS 119 (ICJ Statute) arts 36 & 37; Jonathan Charney, âCompromissory Clauses and the Jurisdiction of the International Court of Justiceâ (1987) 81 AJIL 855.
ICJ Statute, art 36.
ICJ Statute, art 36.
Andrew L. Strauss, âClimate Change Litigation: Opening the Door to the International Court of Justiceâ, in Burns & Osofsky (eds), Adjudicating Climate Change: State, National, and International Approaches (CUP 2009) 340.
For example, writing in 2009, Andrew Strauss argued that Friendship, Commerce, and Navigation (FCN) or similar treaties could potentially provide a path for the ICJ to exercise jurisdiction over a climate change related dispute. ibid 345.
âDeclarations Recognizing the Jurisdiction of the Court as Compulsoryâ (ICJ) <www.icj-cij.org/declarations> accessed 14 January 2024.
Aloysius P. Llamzon, âJurisdiction and Compliance in Recent Decisions of the International Court of Justiceâ (2007) 18 EJIL 815, 817.
Daniel Bodansky, âThe Role of the International Court of Justice in Addressing Climate Change: Some Preliminary Reflectionsâ (2017) 49 Arizona State LJ 689, 711.
Richard C. Paddock, âA Nation on Edge of Extinctionâ (The Washington Post, 24 November 2002) <www.washingtonpost.com/archive/politics/2002/11/24/a-nation-on-edge-of-extinction/3b32c521-3664-46fa-8625-516e7fb05765/> accessed 12 June 2023.
Rebecca Elizabeth Jacobs, âTreading Deep Waters: Substantive Law Issues in Tuvaluâs Threat to Sue the United States in the International Court of Justiceâ (2005) 14 Pacific Rim L & Polây J 103.
United States, Notification of Termination of No 3 Declaration Recognizing as Compulsory the Jurisdiction of the ICJ (received 7 October 1985, effective 7 April 1986) 1408 UNTS 270 Annex A <https://treaties.un.org/doc/Publication/UNTS/Volume%201408/v1408.pdf#page=286> accessed 14 January 2024.
Bodansky (n 39) 708.
Philippe Sands, âClimate Change and the Rule of Law: Adjudicating the Future in International Lawâ (2016) 28 JEL 19, 28. See also, Tim Stephens, âSee You in Court? A Rising Tide of International Climate Litigationâ (The Interpreter 30 October 2019) <https://www.lowyinstitute.org/the-interpreter/see-you-court-rising-tide-international-climate-litigation> accessed 22 March 2024.
See eg Benoit Mayer, âThe Relevance of the No-Harm Principle to Climate Change Law and Politicsâ (2016) 19 APJEL 79.
Christina Voigt, âState Responsibility for Climate Change Damagesâ (2008) 77 Nordic JIL 1, 7.
ibid, 7. See also Stephens (n 3) 68â69. Although the decision in the ITLOS Advisory Opinion lends credence to this perspective, as explained below.
Annalisa Savaresi, âInter-State Climate Change Litigation: âNeither a Chimera nor a Panaceaâ, in Alogna, Bakker & Gauci (eds), Climate Change Litigation: Global Perspectives (Brill Nijhoff 2021) 366; Dapo Akande, Naomi Hart & Mubarak Waseem, âClimate Change and Proceedings before the ICJ and ITLOSâ (Essex Court Chambers, 20 October 2022) <essexcourt.com/publication/climate-change-in-law-current-perspectives-week-9/> accessed 14 January 2024.
Forum shopping has been observed in international environmental law. Typically, this occurs when there is a ârange of foraâ in which a State might bring a dispute. Stephens (n 3) 275â279. That type of range of fora for State-to-State dispute resolution is currently lacking in the context of climate change.
Joost Pauwelyn & Luiz Eduardo Salles, âForum Shopping before International Tribunals: (Real) Concerns, (Im)Possible Solutionsâ (2009) 42 Cornell ILJ 77, 83.
Laurence R. Helfer, âRegime Shifting: The TRIP s Agreement and New Dynamics of International Intellectual Property Lawmakingâ (2004) 29 Yale JIL 1, 14.
Margaretha Wewerinke-Singh, âLitigating Human Rights Violations Related to the Adverse Effects of Climate Change in the Pacific Islandsâ, in Lin & Kysar (eds), Climate Change Litigation in the Asia Pacific (CUP 2020) 109.
See eg Vaughan Lowe, âThe Function of Litigation in International Societyâ (2021) 61 ICLQ 209; Benedict Kingsbury, âIs the Proliferation of International Courts and Tribunals a Systemic Problem?â (1999) 31 NYU Journal of Intâl Law & Policy 679.
COSIS Agreement (n 10).
ibid, art 1.
ibid, art 2.
Rozemarijn J. Roland Holst, âTaking the Current When it Serves: Prospects and Challenges for an ITLOS Advisory Opinion on Oceans and Climate Changeâ (2023) 32 RECIEL 217, 217â218.
UNCLOS, art 191.
Statute of the International Tribunal for the Law of the Sea (Annex VI to UNCLOS) (ITLOS Statute) art 21.
International Tribunal for the Law of the Sea Rules of the Tribunal (adopted 28 October 1997) ITLOS/8 (ITLOS Rules) art 138.
Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (SRFC) (Advisory Opinion, 2 April 2015) ITLOS Case No 15, Declaration of Judge Cot, §§2â3, 13 (SRFC Opinion).
ibid, §9.
ibid. See also Richard Barnes, âAn Advisory Opinion on Climate Change Obligations Under International Law: A Realistic Prospect? (2022) 53 Ocean Development & IL 180, 193 & 202.
Alina Miron, âCOSIS Request for an Advisory Opinion: A Poisoned Apple for the ITLOS?â (2023) 38 Intâl J Marine & Coastal L 249.
Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law (Institution of Proceedings, 12 December 2022) (Pending) <www.itlos.org/en/main/cases/list-of-cases/request-for-an-advisory-opinion-submitted-by-the-commission-of-small-island-states-on-climate-change-and-international-law-request-for-advisory-opinion-submitted-to-the-tribunal/> accessed 9 February 2024.
Although COSIS has already engaged in activities beyond the ITLOS request. It also submitted written statements in the advisory opinion requests submitted to the International Court of Justice and the Inter-American Court. Statement of Gaston Alfronso Browne, Prime Minister of Antigua and Barbuda, on behalf of COSIS in the ITLOS Advisory Opinion Oral Proceedings. Verbatim Record 11 Sept 2023, 10 AM pg 5.
Request for an Advisory Opinion submitted by the COSIS (n 65).
Compare Armando Rocha, âThe Advisory Jurisdiction of the ITLOS in the Request Submitted by the Commission of Small Island Statesâ (Climate Law, 12 April 2023) <https://blogs.law.columbia.edu/climatechange/2023/04/12/the-advisory-jurisdiction-of-the-itlos-in-the-request-submitted-by-the-commission-of-small-island-states/> accessed 8 February 2024 with Donald R. Rothwell, âClimate Change, Small Island States, and the Law of the Sea: The ITLOS Advisory Opinion Requestâ (ASIL Insights, 12 May 2023) <https://www.asil.org/insights/volume/27/issue/5> accessed 10 March 2024.
Request for an Advisory Opinion submitted by the COSIS (n 65); ibid, Written Statement of New Zealand; ibid, Written Statement of Germany; ibid, Written Statement of Mauritius.
Request for an Advisory Opinion submitted by the COSIS (n 65), Written Statement of the Federative Republic of Brazil, para 9; Written State of the Peopleâs Republic of China, §25.
For example, Australia submitted a statement âwithout prejudice to Australiaâs position on the advisory jurisdiction of the Tribunalâ that cited to their written statement in the SRFC case. Request for an Advisory Opinion submitted by the COSIS (n 69), Written Statement of Australia. The written statement in the SRFC case argued that the Tribunal may not have advisory jurisdiction at all given it cannot be found in UNCLOS, and if it does, it should be limited to the interpretation and application of the âother agreementâ that confers advisory jurisdiction on the Tribunal, and not UNCLOS. Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission (n 65), Written Statement of Australia.
See eg Request for an Advisory Opinion submitted by the COSIS (n 65), Written Statement of Poland; ibid, Written Statement of Norway; ibid, Written Statement of Italy; ibid, Written Statement of Germany.
Request for an Advisory Opinion Submitted by the Commission of Small Island States on Climate Change and International Law (Advisory Opinion, 21 May 2024) ITLOS Case No 31, §§88â89, 109 (COSIS Opinion).
ibid, §§85â88.
Art 47(7).
See COSIS Opinion (n 73) §92. However, Mossop has described the provision in the BBJN as âcircumscribed.â Joanna Mossop, âDispute Settlement Provisions in the Agreement for Biodiversity Beyond National Jurisdictionâ (2024) 1 Portuguese J of Intâl L 98, 110.
ibid, Declaration of Judge Kulyk.
ibid, Declaration of Judge Kittichaisaree, §§4â10.
Bodansky (n 39) 689.
Address by Johnson Toribiong, President of the Republic of Palau, UN GAOR 66th Session, 16th Plenary Meeting at 26, 27, UN Doc A/66/PV.16 (22 September 2011).
Mayer (n 8) 63.
Maxine Burkett, âA Justice Paradox: On Climate Change, Small Island Developing States, and the Quest for Effective Legal Remedyâ (2013) 35 Univ Haw LR 633, 635.
Bodansky (n 8) 185, note 18.
The request for an advisory opinion on the legality of the threat or use of nuclear weapons was fueled by a similar, if not larger, effort by civil society. The World Court Project, a non-governmental organization that lobbied the World Health Organization and General Assembly for the advisory opinion requests, was supported by 700 organizations around the world. John Burroughs, The Legality of the Threat or Use of Nuclear Weapons: A Guide to the Historic Opinion of the International Court of Justice (Lit Verlag 1998) 9.
ââBeginning of a New Eraâ: Pacific Islanders Hail UN Vote on Climate Justiceâ The Guardian (29 March 2023) <www.theguardian.com/world/2023/mar/30/un-vote-on-climate-justice-pacific-island-change-crisis-united-nations-vanuatu> accessed 9 February 2024.
Request for an Advisory Opinion of the International Court of Justice on the Obligations of States in respect of Climate Change, UNGA Res 77/276 (29 March 2023) UN Doc A/RES/77/276.
Philippa Webb, âEJIL : The Podcast! Episode 18 â âBe Careful What You Ask Forââ (28 February 2023) <https://www.ejiltalk.org/ejilthe-podcast-episode-18-be-careful-what-you-ask-for/> accessed 17 March 2024, 15:35â15:36. (Philippe Sands, on the danger of drafting the question too broadly, âIâm afraid the drafts that are circulating and that which has gone to ITLOS are so open ended, that the room for mischief [by the Court] is very significant.â)
Although no State called for a vote, Member States still voiced concerns during the debate. The representative of the United States expressed that addressing shared goals related to climate change was best achieved through diplomatic means rather than a judicial process. âGeneral Assembly Adopts Resolution Requesting International Court of Justice Provide Advisory Opinion on Statesâ Obligations Concerning Climate Changeâ (United Nations, 29 March 2023) <https://press.un.org/en/2023/ga12497.doc.htm> accessed 9 February 2024.
âICJ Resolutionâ (Vanuatu ICJ Initiative) <www.vanuatuicj.com/resolution> accessed 9 February 2024.
See eg Damilola S. Olawuyi, âHarmonizing International Trade and Climate Change Institutions: Legal and Theoretical Basis for Systemic Integrationâ (2014) 7 L & Dev Rev 107, 118; Spyridon Aktypis, Emmanuel Decaux, and Bronwen Leroy, âSystemic integration between climate change and human rights at the United Nations?â in Quirico & Boumghar (eds), Climate Change and Human Rights: An International and Comparative Law Perspective (Taylor & Francis 2015) 232; Ottavio Quirico, âSystemic Integration Between Climate Change and Human Rights in International Law?â (2017) 35 Neth Q Hum Rts 31, 44. See also Samuel & Carrillo Bañuelos (n 8).
Statement by Margarethe Wewerinke-Singh, Doughty Street Chambers, âAdvisory Opinions on climate change before the ICJ, IACtHR and ITLOSâ (17 November 2023) 35:50 â 44:20 <https://youtu.be/oz3ddbraOB0?si=5nf-XKkM_wWmj_KW> accessed 9 February 2024.
UNGA Res 43/53 (6 December 1988) UN Doc A/43/755 (âProtection of Global Climate for Present and Future Generations of Mankindâ).
See also Millicent McCreath, âThe Potential for UNCLOS Climate Change Litigation to Achieve Effective Mitigation Outcomesâ, Lin & Kysar (n 56) 122.
Jill Barret & Richard Barnes (eds), Law of the Sea: UNCLOS as a Living Treaty (British Institute of International and Comparative Law 2016).
Lianne P. Baars, âThe Salience of Salt Water: An ITLOS Advisory Opinion at the Ocean-Climate Nexusâ (2023) 38 Intâl J Marine & Coastal L 1, 2.
See, eg Request for an Advisory Opinion submitted by the COSIS (n 65), Written Statement of Norway; ibid, Written Statement of the European Union.
See eg Request for an Advisory Opinion submitted by the COSIS (n 65), Written Statement of the Republic of Korea, §16.
See eg Request for an Advisory Opinion submitted by the COSIS (n 65), Written Statement of Canada, §61.
COSIS Opinion (n 73), §§130â131.
ibid, §§137 & 224.
ibid, §179.
The Tribunal elaborated on these obligations, finding that States have âspecific obligations to take all necessary measures to prevent, reduce and control marine pollution from [GHG] emissions.â Ibid, para 243. See also, Melissa Stewart, âWhat to Watch for Following Historic Climate Opinion from âThe Oceans Courtââ (4 June 2024) Just Security <https://www.justsecurity.org/96365/oceans-court-climate-opinion/> accessed August 7, 2024.
See eg McCreath (n 93) 122; William C. G. Burns, âPotential Causes of Action for Climate Change Damages in International Fora: The Law of the Sea Conventionâ (2006) 2 McGill Intâl J. Sustainable Development L & Pol 27.
Alan Boyle, âLitigating Climate Change under Part XII of the LOSCâ (2019) 34 Intâl J Marine & Coastal L 458.
Alan Boyle & Navraj Singh Ghaleigh, âClimate Change and International Law Beyond the UNFCCCâ, in Carlarne, Gray, Tarasofsky (eds), The Oxford Handbook of International Climate Change Law (OUP 2016) 46.
McCreath (n 93) 123, who argues that âit is now generally accepted that several of the causes and effects of climate change can be considered pollution of the marine environment.â
Dispute concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean (Mauritius/Maldives) (Preliminary Objections) (Judgment, 28 January 2021) ITLOS Case No 28, §§202â205.
Steve Lorteau, âThe Potential of International âState-as-Polluterâ Litigationâ (2023) 32 RECIEL 259.
COSIS Opinion (n 73) §243.
ibid, §258.
ibid, §286 (emphasis added)
The chapeau paragraph listed the âCharter of the United Nations, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the United Nations Framework Convention on Climate Change, the Paris Agreement, the United Nations Convention on the Law of the See, the duty of due diligence, the rights recognized in the Universal Declaration of Human Rights, the principle of prevention of significant harm to the environment and the duty to protect and preserve the marine environment.â UNGA Res 77/276 (n 86).
Statement by Margaretha Werewinke-Sing, saying the legal question will give the ICJ the opportunity to have âdue regard for past, present, and future.â Doughty Street Chambers, âAdvisory Opinions on climate change before the ICJ, IACtHR and ITLOSâ (17 November 2023) 35:50 â 44:20 <https://youtu.be/oz3ddbraOB0?si=5nf-XKkM_wWmj_KW> accessed 9 February 2024.
UNGA Res 77/276 (n 86) (emphasis added).
UH Better Tomorrow Speaker Series, âJulian Aguon: An Indigenous Pursuit of Climate Justiceâ (31 October 2023) 1:00:00 â 1:14:30 <www.youtube.com/watch?v=mabawiuyvD4> accessed 9 February 2024.
Under Article 13 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, âAn act of a State does not constitute a breach of an international obligation unless the State is bound by the obligation in question at the time the act occurs.â See âDraft Articles on Responsibility of States for Internationally Wrongful Actsâ, adopted by the International Law Commission at its 53rd session, UN Doc A/RES/56/10 (2001).
See also, Benoit Mayer, âClimate Change Reparations and the Law and Practice of State Responsibilityâ (2017) 7 Asian JIL 185; Voigt (n 46) 1.
Margaretha Wewerinke-Singh, Julian Aguon & Julie Hunter, âBringing Climate Change before the International Court of Justice: Prospects for Contentious Cases and Advisory Opinionsâ, Alogna, Bakker & Gauci (n 48).
Bodansky (n 8) 185.
Verein KlimaSeniorinnen Schweiz and Others v Switzerland (App No 53600/20) ECtHR [GC] 9 April 2024.
District Court of the Hague (DC), Urgenda Foundation v The State of the Netherlands, Case No. C/09/456689 / HA ZA 13â1396, 24 June 2015.
âFragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Lawâ, Report of the Study Group of the International Law Commission, adopted at its 58th session, UN Doc A/CN.4/L.682 (2006); Martti Koskenniemi & Päivi Leino, âFragmentation of International Law? Postmodern Anxietiesâ (2002) 15 Leiden JIL 553; Yuval Shany, âNo Longer a Weak Department of Power? Reflections on the Emergency of a New International Judiciaryâ (2009) 20 European JIL 73, 87.
See Stephens (n 3) 272â273; Tigre & Rocha (n 8) 287â288.
The timelines of the expected opinions appear to lessen this concern somewhat as the opinions may be issued sequentially with sufficient time for the subsequent opinion to consider the previous decision.
ILC, âFragmentation of International Lawâ (n 122); Koskenniemi & Leino (n 122).
Stephens (n 3) 272â286.
British Institute of International and Comparative Law, âPromoting Climate Justice through International Law: Climate Litigation & Climate Advisory Opinionsâ 6 <https://www.biicl.org/documents/163_event_report_climate_advisories_litigation_15_march.pdf> accessed 10 March 2024.
Law Report, âVanuatuâs Push for International Court Action on Climate Changeâ 12 July 2022 <https://www.abc.net.au/listen/programs/lawreport/vanuatu-climate-court/13965770> accessed 22 February 2024.
Martti Koskenniemi, âPeaceful Settlement of Environmental Disputesâ (1991) 60 Nordic JIL 73, 77. This is reflective of Tim Stevens concern with the ITLOS opinion, that it is lacking in clarity as to âprecisely what the obligation is under Article 194.â ANZSIL-OIELIG ITLOS AO Webinar (28 May 2024) 41:15â41:25 <https://tinyurl.com/3pxckanr> accessed 17 March 2025.
Bodansky (n 8) 185. Law Report, âVanuatuâs Push for International Court Action on Climate Changeâ 12 July 2022 <https://www.abc.net.au/listen/programs/lawreport/vanuatu-climate-court/13965770> accessed 22 February 2024 (Douglas Guilfoyle describing such an outcome as âradical.â)
Bodansky (n 8) 185. See also âSpecial Online Briefing with Secretary John Kerry, Special Presidential Envoy for Climate, and Monica Medina, Assistant Secretary of State for Oceans and International Environmental and Scientific Affairsâ (US Department of State 3 March 2023) <https://www.state.gov/special-online-briefing-with-secretary-john-kerry-special-presidential-envoy-for-climate-and-monica-medina-assistant-secretary-of-state-for-oceans-and-international-environmental-and-scientific-aff/> with Secretary Kerry describing Vanuatuâs Advisory Opinion effort as âsort of just jumping ahead and going to court.â
Stewart (n 8).