International law adapts as climate court cases add up  

Intensified by global warming, extreme monsoon rains flooded a third of Pakistan in 2022, affecting millions of people and killing over 1,500, including 500 children, according to UNICEF. KEYSTONE/2022 The Associated Press. All rights reserved.

The landmark ruling that condemned Switzerland for climate inaction confirmed governments’ obligation to reduce greenhouse gas emissions. But what about their liability in the face of climate-related damages? The International Court of Justice will soon rule on this question in what could be a turning point for environmental justice.  

Are governments liable for the damages caused by climate change? The International Court of Justice (ICJ), the principal judicial body of the United Nations, is currently tackling this question. Its advisory opinion expected early 2025 will be non-binding but could significantly reshape international law. 

On March 29, 2023, spearheaded by Vanuatu, a tiny Pacific island nation which is already facing rising sea levels, the United Nations General Assembly called on the International Court of Justice to clarify states’ obligationsExternal link to tackle the climate crisis as well as their legal responsibilities regarding climate-related damages, particularly in vulnerable regions. 

This will be the first time that the international court will rule on the issue. It has already received 91 written submissionsExternal link from countries and organisations, “the largest number to date in a procedure of this type”, noted the courtExternal link, which will conduct hearings this autumn before delivering its opinion early next year. 

Its conclusions will come as climate court cases are increasingly grabbing the headlines. The latest was the recent verdict against Switzerland for climate inaction by the European Court of Human Rights (ECHR), in Strasbourg on April 8. The court ruled that the Swiss government was violating elderly women’s human rights by failing to take the necessary measures to tackle climate change.

“The European Court has made clear that states have an obligation to act to reduce greenhouse gas emissions, but it has also laid the foundations for legal responsibility regarding the harms caused by the climate crisis,” says Nikki Reisch, Director of the Climate and Energy Programme at the International Centre for Environmental Law (CIEL) in Geneva.   

Towards the right to a healthy environment 

While the ECHR’s ruling is binding and sets a precedent for all European countries, the fight continues for climate activists. Since then, over 400 NGOs and research institutes have called for the right to a clean, healthy and sustainable environment to be enshrined within the European ConventionExternal link on Human Rights, by adopting an additional protocol. Until now, this right has been indirectly implied within the European Convention’s Articles 2 (the right to life) and 8 (the right to respect for private and family life). 

“The Strasbourg verdict is a step forward for climate justice, but the admissibility criteria are still very strict,” says Raphaël Mahaim, lawyer for the Senior Women for Climate Protection and Swiss Green Party parliamentarian. The European Court declared inadmissibleExternal link two similar lawsuits – filed by six young Portuguese citizens and a former French mayor Damien Carême – on the grounds that they were not “personally and directly affected by the action or inaction of the public authorities”. “Their decision also relates solely to obligations in terms of CO2 reduction,” added Mahaim. “With an additional protocol in the European Convention, we will be able to be more precise and concrete.” 

Reisch from CIEL agrees: “An additional protocol on the right to a healthy environment would reinforce and clarify states’ obligations in terms of environmental protection.” This right has already been recognised by the Human Rights Council and the United Nations General Assembly since October 2021 and July 2022 respectively. 

From small island states to the ‘World Court’ 

All eyes now turn to the International Court of Justice (ICJ) in The Hague, whose advisory opinion will have ripple effects far beyond the European borders, as Reisch points out.

“As the ‘world’s highest court’, the ICJ carries weight. Its opinion on states’ obligations regarding climate change will influence courts around the world, as well as governments seeking to avoid legal action.” For the expert, the ICJ could encourage governments to be more ambitious, and clarify the issue of climate-related damages, which tend to disproportionately affect regions that have least contributed to greenhouse gas emissions. 

However, even binding climate targets, for instance as set in the Paris Agreement, are rarely met. “The Achilles heel of international climate law is a lack of effective accountability mechanisms,” admits David R. Boyd, Special Rapporteur on Human Rights and the Environment, who supports the call to adopt an additional protocol in the European Convention. In his view, the right to a healthy environment should be recognised within states’ constitutions and national legislation, and applied through concrete measures such as reducing greenhouse gas emissions, protecting biodiversity or improving air quality.   

Towards a tidal wave of lawsuits? 

For CIEL Climate and Energy Programme Director Reisch, in addition to UN negotiations, national and international courts play a crucial role in ensuring that governments respect the right to a healthy environment. She cites the recent ruling in La OroyaExternal link, in the Andes, as an example. On March 28, the Inter-American Court of Human Rights ruled that Peru had violated the rights of local communities by allowing the region to be contaminated by a metal smelter. 

Environmental lawsuits around the world are accumulating, leading to questions about whether courts are equipped to face a tidal wave of environmental litigations. 

“Climate lawsuits are, and will continue to be, a tiny fraction of the total number of cases adjudicated by the courts. It is important to emphasise that if states and businesses fulfilled their human rights and environmental obligations, there would be no more need for climate lawsuits,” says Boyd.

He insists on the need to implement “more popular, equitable and effective environmental policies [that] would target the businesses and super wealthy who generate a disproportionate share of greenhouse gas emissions.” 

Throughout his mandate, Boyd denounced litigation disputes between companies and states that have prevented the introduction of stronger environmental regulations, particularly regarding the exploration of fossil fuels. “Instead of making polluters pay, states are paying the polluters,” he says, referring to disputes worth several hundred billion dollars.   

Geneva, the new centre for climate litigation? 

As Reisch points out, the Swiss Senior Women’s ruling lays the legal grounds for holding major emitters responsible for climate-related damages. The verdict highlights that climate change is a current issue, which is already disproportionately harming vulnerable regions and populations. As a result, some countries are demanding compensation, including island states such as Indonesia and Vanuatu. At COP28, a “loss and damage” fund, dedicated to compensating climate-related disasters, was adopted, although its funding remains insufficient to this day, according to several experts.External link 

In Geneva, the United Nations is about to host a new office dedicated to loss and damage: the Santiago Network, which will support countries impacted by climate disasters by providing them with technical assistance. Its primary goal will be to limit losses and damages by equipping vulnerable regions. “The network will help to collect evidence of climate-related harm,” says Reisch. “That information could help interpret states’ duties. But it remains to be seen what role it will play in climate litigation.” Article 8 of the Paris Agreement, which recognises loss and damage, does not yet set out any legally-binding obligations. 

At the end of the month, Boyd will hand the reins over to his successor Astrid Puentes. The position will be renamedExternal link “Special Rapporteur on the human right to a clean, healthy and sustainable environment”, to reflect and embody the birth of this new human right. 

Edited by Virginie Mangin/sj. Adapted from French by Rachel B. Häubi.