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Climate Change and the ICJ: Seeking an Advisory Opinion on Transboundary Harm

Last year, Joseph M. Field ’55 Professor of Law Douglas Kysar taught a class with Ambassador Stuart Beck of the Permanent Mission of Palau to the United Nations, and Aaron Korman, Palau’s legal adviser. The course focused on Palau’s campaign to secure an advisory legal opinion from the International Court of Justice on climate change. Halley Epstein ’14, a Yale Law Student, wrote the following blog entry for the Yale Center for Environmental Law & Policy, describing the details of a new report that outlines key aspects of this issue and calls on the ICJ to issue an opinion on state responsibility for transboundary harm caused by greenhouse gas emissions.

The latest Intergovernmental Panel on Climate Change draft report—leaked late last month—warns that sea levels could conceivably rise by more than three feet by the end of the century. As analysts, including climate deniers, pore over various aspects of the report, island nations continue to wonder: is it too late to avoid catastrophic damage caused by climate change?

For people in low-lying nations, a sea level rise of three feet would wreak havoc on their ecosystems, territories, and ways of life. The New York Times notes that rising sea levels could affect “the world’s great cities,” including New York, New Orleans, Shanghai, Venice, and London. But the Times does not mention how rising seas are already affecting low-lying cities and nations not on their list – including the Republic of Palau.

Palau, and many others, are frustrated by the lack of binding international commitments to reduce greenhouse gas emissions. This ongoing political impasse inspired Palau, along with a multistate coalition, to draw attention to climate change on a different international stage. The coalition initiated an international campaign to secure an advisory opinion from the International Court of Justice (ICJ) on assigning responsibility for causing climate change. At the ICJ, all interested nations, regardless of political influence in international climate negotiations, would have the opportunity to voice their opinions on the matter.

Last fall, a group of Yale graduate and professional students worked directly on this campaign with some of the coalition’s organizers, including Palau’s Ambassador and Permanent Representative to the United Nations, Stuart Beck (YLS ’71). “At its core the Palau campaign simply seeks to bring the rule of law to the problem of global climate change,” said Professor Douglas Kysar, the Joseph M. Field ’55 Professor of Law at Yale Law School and one of the course instructors. “So for us, it offers an ideal pedagogical opportunity to study the power of law in an age of despairing politics.”

Our goal was to assemble the legal, political, and scientific justifications for the coalition’s request and detail why the ICJ should issue an opinion on state responsibility for transboundary harm caused by greenhouse gas emissions. Together with Ambassador Beck, Aaron Korman —  Palau’s Legal Adviser — and Professor Kysar, we compiled our findings in a new report, Climate Change & the International Court of Justice.

Drawing on climate science, international and domestic legal authorities, and the international legal principles of transboundary harm, the rule of law, and human rights, we conclude that supporting an ICJ opinion on climate change responsibility is in all states’ interest. While an ICJ advisory opinion remains just that—advisory—a ruling on states’ rights and obligations under international law could shape international norms and influence future UNFCCC negotiations. Some industrialized nations oppose the campaign because of potential impacts on international negotiations. For island nations, though, the ability to obtain a ruling on international legal responsibility outside of the UNFCCC process is the most realistic way to fight for their right to exist.