Seeking Judicial Venues for the Persons Affected by the Sea-Level Rise

Adrian-Nicușor POPESCU[1]

       Abstract: Climate change and especially sea-level rise are threatening the livelihoods of the persons living on the low-lying coastlines and are engendering the undesirable conditions for a future exodus. As recent reports have shown, sea-level rise is a very actual and problematic topic and important decisions must be made in the next years. If the recognition of the refugee status is not guaranteed, the persons affected by sea-level rise must find appropriate judicial venues to file complaints against those States that fail to reduce their contributions to climate change and affect their human rights. How complicated would it be to choose contentious procedures that require the proof of a strong causal link between the unlawful act and the damage, crystallized as rising sea levels? Is the request of an advisory opinion of the International Court of Justice a better option or filing complaints with the national judicial bodies? We considered that future climate change litigation and especially sea-level rise litigation should not be bypassed, as the international community made some strong commitments regarding the reduction of the anthropogenic influence on climate and, therefore, action must be taken to ensure that these commitments are respected and human rights are protected.

      Key-words: climate change; sea-level rise; human rights; judicial venues.

1. Introduction

      Climate change is already creating major problems to our planet and, from scientists to legislators and legal specialists, everyone is concerned about the unfavourable predictions. One of the most unchangeable impacts of climate change is considered to be the unyielding sea-level rise that could lead from massive migration to the disappearance of sovereign States. A recent study of the IPCC (Intergovernmental Panel on Climate Change) found out serious increases in sea-level rise in the last century explaining that human influence is almost certainly the main cause. Thus, the process is likely to continue as the „global mean sea level rise above the likely range – approaching 2 m by 2100 and 5 m by 2150 under a very high GHG emissions scenario – cannot be ruled out due to deep uncertainty in ice sheet processes”.[2] It was also concluded at a high level of confidence that „in coastal cities, the combination of more frequent extreme sea level events (due to sea level rise and storm surge) and extreme rainfall/river flow events will make flooding more probable”.[3]

     Generally, the actual standing and agenda of the international law does not permit the persons affected by sea-level rise to apply for refugee status, when the situation in their origin State does not allow survival anymore due to major floods. Being complicated to gain „climate refugee” status, they must resort to other options in order to save their communities and make their voices heard. Can they put pressure on governments to accelerate their efforts on preventing the disastrous events predicted to happen because of climate change? It is useful to search for the legal instruments that protect their human rights and the judicial venues where they can file complaints in order to receive compensations for the damage caused by sea-level rise.

2. Judicial Mechanisms That Can Be Used to Protect Human Rights in Case of Sea-Level Rise

     If we want to find better mechanisms to protect the human rights of the persons affected by sea-level rise, we should look at the foundations of the legal recourse under the human rights, the tools that human rights law provides when violations are claimed and, overall, at the complementary protection mechanisms. Certainly, there is a sufficient and considerable jurisprudence on violation of human rights based on the failure of the States to protect the environment (especially at the regional level in the case of the European Court of Human Rights) but, in most cases, climate change or sea-level rise must not be the only reason for raising claims and petitioners should look for a combination of factors to efficiently demonstrate their vulnerabilities. Although we could admit that in some cases the small island developing States must find solutions on their own in order to effectively protect the rights of their citizens put at risk by sea-level rise, the human rights analysis was not conducted to point out the culpability and the weaknesses of those States, as we already know that they are not still prepared to take action and mitigate the negative foreseeable impacts of climate change. The human rights dimension is a component of the complementary protection which has to be guaranteed to people who do not fulfil the strict conditions to be declared a refugee and, moreover, in the event of the disappearance of a State, there would be no territory, thus, no individuals subject to their jurisdiction. Significantly, they are not entirely liable for all those violations, as their contribution to climate change is almost inexistent. Thus, in our opinion, the protection of the aforementioned rights has to be guaranteed by all the States signatories and parties to the Covenants and other major treaties in the field of human rights. This could prove to be quite problematic, because human rights obligations are foremost fulfilled at the national level, by constitutions and national laws, and these obligations usually do not extend to third party States. However, legal recourse against the governments of the threatened island nations could be a useless undertaking, but it is also difficult to request the protection of human rights in third party countries.

    At all events, human rights in the context of the bigger issues generated by climate change must not be just a theoretical and illusory concept. Although they seem to lack enforceability and pessimists think that “the existing weaknesses of the human rights regime appear exacerbated in conditions of climate change, with little obvious sign of renewal or reinforcement in the future”,[4] human rights are enshrined in many legally binding treaties and they can also apply as customary law. Quite recently, two judicial bodies expressed their opinion on climate change and sea-level rise affecting human rights. The UN Human Rights Committee did not rule out the possibility of a future legal refuge in another State due to the endangerment of the right to life, caused by sea level rise leading to the destruction of the living conditions (the case of Ioane Teitiota).[5] Also, the Dutch Supreme Court confirmed a decision of the Hague Court of Appeal which found out that the Government of the Netherlands should reduce greenhouse gas emissions in order to respect the European Convention of Human Rights (right to life and right to private and family life, in particular).[6] The decision was applauded by the UN High Commissioner for Human Rights: “The decision confirms that the Government of the Netherlands and, by implication, other governments have binding legal obligations, based on international human rights law, to undertake strong reductions in emissions of greenhouse gases. […] Low-lying countries like the Netherlands are in the front line of climate change, and the potentially devastating effects of an unchecked rise in sea levels in particular should spur us on to demand courageous and decisive actions by Governments everywhere in responding to these threats”.[7]

3. Filing Claims with International Judicial Bodies

     Hence, several mechanisms can be set in motion in order to protect human rights affected by climate change and sea-level rise at an international level. It was already established in the ICJ’s jurisprudence that States may be held for human rights violations: “Whether or not States have accepted the jurisdiction of the Court, they are required to fulfil their obligations under the United Nations Charter and the other rules of international law, including international humanitarian and human rights law, and they remain responsible for acts attributable to them which are contrary to international law”;[8] also, in its Advisory Opinion of 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory[9], the Court found that “the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights”.[10] The ICJ already found that the protection of human rights represents an erga omnes obligation in the Barcelona Traction Case. Also, the ICJ has acknowledged in the Corfu Channel Case the due diligence principle: “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States”[11] (seen as a duty to prevent and control a foreseeable risk when serious harm is likely to happen), which is similar to the obligation of a State to refrain from activities that may cause transboundary harm to the environment of another State: “no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence”.[12] As authors have already noticed, the seriousness of the risk implies a greater possibility to apply the due diligence principle: “the more obvious the risk, the more States must demonstrate that they have taken all necessary measures to prevent it from materializing”.[13]

     These arguments could be used by the small island States to file claims against those big greenhouse gases emitters that, undoubtedly, contribute to the degradation of the environment of the Oceanic States (however, establishing a direct consequence by clear and convincing evidence can prove to be a major hurdle for a successful claim). Thus, responsibility is very hard to be found, as pollution is a phenomenon engendered by numerous industrialized States and it would be a very burdensome task to clearly identify the exact responsible State for the submergence of an atoll in the Pacific Ocean. Actually, climate change, and particularly sea-level rise, leave little prospect of establishing with undeniable certainty a causal link between the author of the internationally wrongful act and the injury caused by its effects. However, it cannot be ignored that the amount of GHG emissions produced by the most developed countries disproportionately affects the least developed States in such a way that the denial of the problem cannot continue anymore and the inaction may only lead to disastrous results, considering that, beyond the responsibility for the wrongful act and the difficulty of calculating with precision the direct causal link and the contribution to the damage, States have an obligation to respect the principle of international cooperation. Nevertheless, there is still a high reluctancy from the “determinable authors” of the phenomena caused by climate change to admit liability, while constantly wagering on the scientific uncertainty. For instance, we must recall the United States withdrawal from the 2015 Paris Agreement (President Joe Biden signed on 20th January 2021 the readmittance of the US into the Paris Agreement)[14] or the fact that USA have signed the Kyoto Protocol but has not yet ratified the treaty (President Bill Clinton signed the treaty in November 1998, but the United States Senate did not ratify it), while Canada withdrew from it in 2012. We hope for a remarkable turnaround of the perspectives, at the dawn of a new administration, which can change the policy at the next important event on climate change, scheduled to be held in Glasgow, when the UK will host the 26th UN Climate Change Conference of the Parties (COP26). The NGO Climate Coalition made a plea for the substantial financing of the fight against climate change in anticipation of the Glasgow event: “Finance to support developing countries to adapt has been stagnating at only 20% of overall climate finance for many years, falling short of the Paris Agreement commitment from developed countries to provide a balance between adaptation and mitigation finance.”[15] Until now, States like China and Japan have presumably assumed important steps towards a more secure climate: “China, the world’s largest carbon dioxide polluter, recently pledged to eliminate its emissions by 2060. Japan pledged to do the same by 2050”.[16]

      Industrialized States may fear the specter of an economic crisis in the context of adjusting their policies to reduce the negative impacts of climate change (“Bush administration officials argued that the same aggressive effort [the U.N. advocated to hold GHG emissions in check] would throw the world’s economy into recession”)[17]. The challenge is not always proportionate to the ability of a State to adapt: “Many of those who will be most harmed by climate change have contributed little to causing the problem. Furthermore, those that are most vulnerable to climate change are often least able to pay for adaptation measures needed to protect them from climate change impacts. Therefore [lesser developed countries] will be unable to implement programs for irrigation in the case of drought, dikes in the event of flooding.”[18] In our opinion, it is very hard to compare the effects of sea-level rise on Florida’s coastline with the deeper wounds that may be left on the coastlines of States like Bangladesh, Maldives or the Pacific low-lying islands. It looks like the most able States to financially adapt to climate change are also the least affected ones and that may be the case in the context of sea-level rise, where only the small sized nations are objectively threatened with extinction: “the fact that these nations [the more developed ones] feel far fewer disastrous effects from climate change, coupled with their superior ability to adapt to any changes felt, creates their false belief that climate change will not happen anytime soon, that it is a vague and uncertain issue for the future, and that it is not serious”.[19]

4. A Contentious Procedure Based on State Responsibility Before the ICJ?

     Despite all difficulties, climate change liability should not be theoretical and illusory. Is every State responsible, even in an extremely small proportion, for the negative impacts of sea-level rise? “The argument, from the perspective of the developed nations, is that they cannot be held completely responsible for causing climate change since even the smallest island nations put some carbon dioxide into the atmosphere”.[20] Is it right to invoke Article 47 of the Articles on State Responsibility on the plurality of responsible States: “1) Where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act; 2) Paragraph 1: (a) does not permit any injured State to recover, by way of compensation, more than the damage it has suffered; (b) is without prejudice to any right of recourse against the other responsible States.”?

     The Commentary of Article 47 of the Articles on State Responsibility notes that “each State is separately responsible for the conduct attributable to it, and that responsibility is not diminished or reduced by the fact that one or more other States are also responsible for the same act.”[21] Furthermore, the Commentary goes on to mention that several States by separate internationally wrongful conduct may play a part in causing the same damage. “For example, several States might contribute to polluting a river by the separate discharge of pollutants. […] In such cases, the responsibility of each participating State is determined individually, on the basis of its own conduct and by reference to its own international obligations”.[22] Consequently, as other authors have noticed, “this means that a State could only be held responsible for harm caused by its own emissions, which would make it necessary for the injured State to establish causation between the specific harm suffered and the conduct of the emitting State”,[23] which is a very difficult task. When speaking about GHG emissions that caused the melting of the polar ice and subsequently sea-level rise, we are in a situation where several States, by separate internationally wrongful acts, have jointly conduced to the same damage (and one example could be the pollution of a river that crosses different countries). Therefore, the task of calculating each State’s contribution to the polluting activities arises and presents the challenge. To what extent does a State bear the responsibility for the damage? There are treaties which expressly state joint liability (United Nations Convention on the Law of the Sea, Convention on International Liability for Damage Caused by Space Objects), but one of the best examples could be the “mixed agreements” where the European Union and all of the member parties to that treaty that are also part of the EU share a common responsibility. All the same, it may be noticed that these “lex specialis” treaties that provide joint liability may concern lawful activities and a careful analysis should be done in order to establish if the Articles on State Responsibility could apply. We would like to recall that not all the industrial-related activities that are contributing to climate change and sea-level rise are part of an internationally wrongful conduct. For the activities that are not prohibited per se by the international law and which provide the risk of causing harmful consequences to another State, we may address the provisions of Draft articles on Prevention of Transboundary Harm from Hazardous Activities, adopted by the International Law Commission in 2001.

      Therefore, the path of establishing State responsibility for climate change and sea-level rise would not prove to be a very fruitful one, but international cooperation could play a key role and we could hold those responsible States accountable in other ways, such as establishing agreements that would force them to host a certain quota of environmentally displaced persons or raising contribution obligations to the adaptation fund set up under the Kyoto Protocol of the UNFCCC: “the Parties to this Protocol shall ensure that a share of the proceeds from certified project activities is used to cover administrative expenses as well as to assist developing country Parties that are particularly vulnerable to the adverse effects of climate change to meet the costs of adaptation”.[24] We could also argue that the nowadays effects of climate change are the result of historical emissions issued many decades ago and that today’s pollution will affect tomorrow’s generations, thus complicating, even more, the search for the responsible State. Besides, sea-level rise is not influenced only by glacier melting due to warmer temperature caused by pollution, but it may also be conditioned by land subsidence (sinking) as a result of the tectonic activity or other geological factors (mainly, abrupt events, such as earthquakes).[25] However, something must be done and sea-level rise might be tackled through international cooperation, as we supported before, as the affected States are one of the poorest in the world and lack almost totally the appropriate resources to alleviate the suffering of their citizens (“The poorest half of the world’s population, 3.9 billion people, generate only 10 per cent of global emissions. Conversely, the richest 10 per cent produce half of global emissions. […] Just 100 businesses (known as “carbon majors”) are responsible for 71 per cent of industrial greenhouse gas emissions since 1988”).[26] Expressing more sharply and concisely these inequalities, “the wealthiest 1 per cent have a carbon footprint that is 2,000 times larger than that of the poorest 1 per cent”.[27]

       Despite all the hardships of establishing accountability, some possible courses of action must be found. In fact, we have to remember that, according to the international law principles regarding liability, the wrongful act or omission of a State should be sufficient to hold that State accountable for its consequences. Especially as “the nature of the relationship between greenhouse gas emissions and the predicted impacts of climate change is not like other forms of transboundary pollution, such as oil spills, where there is a directly demonstrable link between the pollutant and the impact”.[28] Moreover, Article 2 of the ILC’s Draft Articles on Responsibility (titled as “draft”, but already a collection of customary law norms) does not mention culpability, damage or causal link as essential conditions for the existence of  an internationally wrongful act: “There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law”; [subjective condition] and “(b) constitutes a breach of an international obligation of the State” [objective condition]. Therefore, could it be more rewarding to follow the path of establishing an objective liability? From the outset, it should be noted that a contentious procedure at a high level, between two States in front of the ICJ, is hard to imagine, owing to the fact that, if the presumably responsible State has not consented to the compulsory jurisdiction of the ICJ (relevant States responsible for emissions, such as People’s Republic of China or the United States, have not submitted  declarations recognizing the jurisdiction of the Court as compulsory) it would probably refuse a litigation in front of this court, besides the political risks involved, as in the Marshall Islands Case relating to nuclear disarmament[29]. Remembering the interesting case of the Marshall Islands, we should also take into account the importance of establishing the existence of a dispute before submitting an application before the ICJ (the plaintiff State must prove that negotiations have taken place and no practical result has been achieved and an opposition of thesis must be highlighted, not only some declarations made at different consultations and conferences that found no echoes).

      As the respect for the right to a healthy environment is just an emerging peremptory norm (and partially recognized as an erga omnes obligation) at the present time,[30] it is improbable that a lawsuit based on the violation of an erga omnes obligation would have great chances of success, despite the fact that the protection of the human rights, in general, engender this type of universal obligations and this was, as presented before, already admitted in the caselaw of the ICJ (also, at national level, it was admitted that the protection of human rights is an erga omnes obligation that could be violated by failing to reduce greenhouse gas emissions, if we remember the above cited Urgenda Case). We should stress that, if considered an erga omnes obligation, the lack of compliance with the duty to protect the environment could be invoked by any State under article 48 of the ILC’s Draft Articles on State Responsibility, whether or not he suffered any damage (for example, a landlocked State could raise claims regarding the damage caused by rising sea levels in the Pacific or Indian Ocean area). The issue of reparations still subsists, as, “within such a framework, small islands states could successfully invoke the responsibility and stop breach of international law, but it is not a matter of certainty that damage they suffer can actually attract compensation when they act in the collective interest or in the interest of the international community, and not in their own capacity”.[31] However, as presented before, the right to a healthy environment was not expressly recognized by the ICJ (refused to give it value in the Pulp Mills Case and was acknowledged only in separate opinion with value of doctrine), as the Court, over time, was not positive about allowing a State to sue another State for violations of erga omnes environmental obligations.[32]

      Therefore, we should firstly resort to finding the violation of a treaty provision. As sea-level rise is, in a very high proportion, the result of greenhouse gas emissions, we could visualize a situation where a State, threatened by the rising waters, would want to signal a violation of the UNFCCC (197 signatory parties as of 2020). It should be mentioned that the simple fact of signing and ratifying this environmental law framework does not constitute a sufficient evidence for fulfilling their international obligations. In fact, a number of Pacific States made a strong statement and declared that joining the UNFCCC “shall in no way constitute a renunciation of any rights under international law concerning state responsibility for the adverse effects of climate change, and that no provisions in the Convention can be interpreted as derogating from the principles of general international law”.[33] According to the Paris Agreement, the developed States have the obligation, under the principle of common, but differentiated responsibility (Article 2.2), to assist the developing countries to cope with the adverse effects of climate change and to provide financial aid, where needed to match the costs of adaptation (Article 11.1). Furthermore, “developed country Parties should continue taking the lead by undertaking economy-wide absolute emission reduction targets. Developing country Parties should continue enhancing their mitigation efforts, and are encouraged to move over time towards economy-wide emission reduction or limitation targets in the light of different national circumstances” (Article 4.4). Broadly, these are some of the treaty obligations that could be breached and used as examples of wrongful acts (there is also a UNFCCC procedure to manage disputes between Parties, but these are brought before a conciliation commission, whose awards are only recommendatory).

     Apart from treaty provisions, we should also resort to norms of customary law and the due diligence principle, already acknowledged by the ICJ (in the Corfu Channel Case or in the advisory opinion on the Legality of the Threat or Use of Nuclear Weapons), as previously discussed, should be relevant (“All States must, under rules of customary international law, exercise due diligence in limiting their emissions of greenhouse gases in such a way as to prevent damage to the global environment and to the environments of other States”).[34] The greenhouse gas emissions produced on the territory of a State must not exceed the agreed levels, irrespective of the actual origin of the wrongful act (we should include the activities of the private entities). Even though the State has signed and ratified environmental law treaties, if it fails to control all activities on its territory that could harm the environment and contribute to climate change, it can be held responsible for not proving sufficient diligence (if the State failed to ensure that the activities of the companies operating on its territory are not harmful, the wrongful act could be attributable to the State). Of course, it is a “duty of care”, not an obligation to achieve a specific result, but States must prove that they have taken all the necessary measures (including legislative regulations), especially when the harm is obvious. There is no importance if the wrongful act was committed or not with the intention of doing harm (the fault does not exclude State’s liability). However, a case-by-case analysis should be conducted, as it is equitable to take into consideration the capacity of a State to implement the required measures (from the industrialized States we could reasonably expect to a higher level of diligence).

      According to the ILC’s Draft Articles on Responsibility, after the internationally wrongful act has been proved, the State must stop exercising that act (Article 30: “The State responsible for the internationally wrongful act is under an obligation: (a) to cease that act, if it is continuing; (b) to offer appropriate assurances and guarantees of non-repetition, if circumstances so require”) and repair the damage done (Article 31: “1. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act. 2. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State”). Concerning the provisions of Article 30, “an obligation of cessation attaching to net positive emissions may be impossible for a State to achieve in the immediate term, and in the absence of action from other contributors to the harm, especially the major historical emitters, could be argued to be unreasonable”.[35] Speaking of the reparations of the injury suffered, the discussion that gravitates around the “causal link” may be recalled. As long as “causal link” is not among the essential criteria for determining the wrongful act, it should not be an unnecessary burden (although the caselaw and the doctrine generally “exclude reparation for injuries that are too indirect, remote, and uncertain to be appraised”).[36] Certainly, a State could not be held responsible for historical emissions, but only for those that exceed the permissible levels established by the recent environmental law treaties (any other calculations would be too difficult, although other authors found that it would be more righteous to compel the big emitters to “share a greater burden based on historic responsibility and contribute to a fund to help the displaced populations, especially the inhabitants of small island states; and work with international organizations to address the legal questions raised by climate refugees and by the submergence of small island developing states”).[37] However, even if we admit that scientific efforts would finally find a way of quantifying the amounts of one State’s greenhouse gas emissions that certainly had a contribution to climate change and sea-level rise in particular, we remember that the damage produced in the Pacific islands, for example, is the result of a joint involvement. As already displayed before, this should not preclude the process of recovering reparations for the emissions attributable to one particular State. An international court as the ICJ does not have the power to force the introduction in the litigation of another presumably responsible State and, if we also consider high reluctancy to accept an international trail, it is hard to envisage that the ICJ would have the opportunity to judge the joint liability of several States in a sea-level rise matter. That being said, if a State finally finds a judicial arena to claim that sea-level rise is the result of a wrongful activity exercised by another State, it should resort to violations of environmental law treaties (human rights-related obligations would prove to be too inconsistent as arguments in front of the ICJ at the moment, as we have already seen that Ioane Teitiota’s claim based on the threat to his right to life posed by the expected sea-level rise was rejected on an international venue, since the threat was not sufficiently imminent, although others have called for a climate justice founded on a human rights approach: “To ensure that communities, individuals and governments have substantive legal and procedural rights to the enjoyment of a safe, clean, healthy and sustainable environment and the means to take or cause measures to be taken within their national legislative and judicial systems and, where necessary, at regional and international levels, to mitigate sources of climate change and provide for adaptation to its effects in a manner that respects human rights”)[38] and, based on objective liability, the wrongful act could be found, but when it comes to reparations, the determination of the exact quota of emissions that caused the rise of coastline water levels in another State remains a thorny issue (that could be alleviated by reversing the burden of the proof, as long as the defendant State is accused of breaching a no harm obligation, so that it will have to prove there is no causal link between its actions and the damage produced to the plaintiff State).

       The unsolved problem of the causal link should gradually be untangled over time, as science has proved in the last years that extreme natural events are occurring due to climate change, from extreme heatwaves in Siberia[39] to extreme rainfalls in Texas[40] (we have also the example of a Peruvian citizen who raised claims against a private entity from Germany to hold it responsible for the melting of snow and ice in the Peruvian Andes, that caused flooding in his town, calculating that they have to pay a share of 0,47% of the costs supported by the community, relating to the entire contribution of the company to the deterioration of the environment over the years). Studies have shown that “there have been major developments in attribution science, which can draw a link between certain extreme weather events and human-caused climate change- event attribution, and can also quantify the contribution made by particular states and non-state actors, such as fossil fuel companies -source attribution”.[41] A 2014 research came to the conclusion that “63% of worldwide greenhouse gas emissions could be traced back to 90 international fossil fuel companies – nicknamed carbon majors”.[42]

5. Seeking for an Advisory Opinion of the ICJ

       Summing up, it is possible that the contentious procedure would not be the best option for the moment (even if this path will be explored, it is expected that everything will end early with a bilateral agreement). Over time, States like Tuvalu took into consideration an international litigation at the ICJ against Australia or the United States, but this idea did not materialize, since the “opponents” are not willing to accept the legal outcome of a “Hague decision”.[43] Nevertheless, the ICJ still offers another solution: the path of the advisory opinion (which could be regarded as more authoritative since it does not have effects only inter partes litigantes, but it addresses to the international community as a whole). A coalition of States affected by sea-level rise could initiate the request of such a procedure by the UN General Assembly. Article 65 of the Statute of the International Court of Justice states that “The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request”. Accordingly, the UN Charter provides in Article 96 that “The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question”, while “other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities”. Thus, the abovementioned coalition must find enough political support to gather the votes for a successful request, which is also a rather demanding task, as most States, that contribute to climate change, would try to elude a legal question that may imply their liability, even in a procedure that provides no actual remedies. One possible legal question could be: Is a State that fails to mitigate its greenhouse gas emissions to a such extent that it harms the global environment (or at least contributes to it) or the environment of a certain State (for example, by accelerating the sea-level rise phenomenon) responsible for that injury and held to make reparations? Furthermore, an advisory opinion is nonbinding and it holds only a value of doctrine, which would be still sufficient, considering the scarcity of “high level” legal opinions on the subject of sea-level rise.

       Pacific States like Vanuatu, for example, have contemplated for some time on the idea of addressing the legal consequences of the anthropogenic slow-onset disasters to the UN General Assembly. As we have admitted before, political support is hard to be raised on this subject (although in a resolution adopted on the 5th of July 2018, the Human Rights Council admitted that “climate change poses an existential threat for some countries, and […] has already had an adverse impact on the full and effective enjoyment of the human rights enshrined in the Universal Declaration of Human Rights and other international human rights instruments”),[44] but authorities from Port Vila still try to find the appropriate legal avenues in order to hold accountable the “big emitters” (a German lawyer, specialized in environmental law thinks that the public perception on climate change is much stronger now, “because we are feeling the effects of climate change to a much greater extent, […] That is why the chances are currently high that a majority will come together”).[45] They seek a request for an advisory opinion of the ICJ that would clarify if industrialized States have breached their environmental related obligation and, consequently, have to repair the damages resulted from their wrongful activities (such as sea-level rise in affected States like Vanuatu). Although nonbinding, a favourable advisory opinion “will have symbolic power, setting a legal precedent that any court in any country could then use”.[46] Discussed at a 2019 meeting of the Pacific Islands Forum, the proposal has been reviewed positively: “In recognising the need to formally secure the future of our people in the face of climate change and its impacts, Leaders noted the proposal for a UN General Assembly Resolution seeking an advisory opinion from the International Court of Justice on the obligations of States under international law to protect the rights of present and future generations against the adverse effects of climate change”.[47]

      It has to be specified that these plans of seeking an advisory opinion were inspired by the efforts of the Pacific Islands Students Fighting Climate Change, an organisation that campaigns for persuading the Pacific Island Forum to unite in order to take the issue of climate change in the UN General Assembly (“With strong support from civil society and international networks of experts, a coalition of countries beginning in the Pacific can strategically build a global alliance sufficient to pass the necessary UNGA resolution”)[48] and, eventually, in front of the ICJ’s judges to hear their opinion on this subject (“An ICJ advisory opinion on climate change is one powerful method through which parties to the Paris Agreement may be further encouraged to commit to a level of emissions reductions that would enable the treaty to meet its objectives”).[49] Their proposal is different from the past ones (the Republic of Palau announced the intention to pursue an advisory opinion back in 2012 without great success, while other States like the Marshall Islands or Bangladesh have also been studying the same pathway)[50] as they would want to concentrate on human rights, rather than on State responsibility. To explain the contrast, Palau’s proposal supposed the following legal question: “What are the obligations under international law of a State for ensuring that activities under its jurisdiction or control that emit greenhouse gases do not cause, or substantially contribute to, serious damage to another State or States?”, while the human rights related question could be formulated in the subsequent way: “What are the obligations of States under international law to protect the rights of present and future generations against the adverse effects of climate change?”.[51] The latter question can be criticized for lacking sufficient “legal weight”, for being too general, but it is expected that questions focused on State responsibility would not find enough support on the international arena. The members recommend the adoption of national policies and strategies by the Pacific Islands Forum’s member that would encourage the support for a UNGA resolution, the seek for legal experts, technical advisors who would accept to search for legal arguments in their favour (from high ranked foreign universities such as Yale, Cambridge or Harvard, professors who have already announced their allegiance to this initiative),[52] releasing permanent updates of the negative consequences of climate change felt in the region, such as sea-level rise and storm surges, to the civil society for a broader understanding of the urgent need for a legal response.[53] Finally, one of the experts from the Columbia Law School observed that “the national courts of an increasing number of countries are declaring the legal importance of addressing climate change on constitutional, human rights and other grounds, and an ICJ opinion would further support these cases”.[54]

       As a conclusion, as already observed in the doctrine, beyond all efforts to obtain an advisory opinion of the ICJ or even to initiate contentious procedures at national and international level, it is the “combination of legal initiatives and diplomacy that may offer the greatest chances of catalysing transformative change at the global level and obtaining much-needed reparations for actual climate harm”.[55] As far as diplomacy is concerned, we may give the example of a communication made by the Federated States of Micronesia and addressed to the government of the Czech Republic, which was asked to initiate a transboundary environmental impact assessment in the context of the refurbishment of a coal power plant (that could have, presumably, the potential to contribute, with its emissions of CO2, to global climate change and, thus, also an impact to the territory of Micronesia, which finds itself at 13,000 km away). Even if Micronesia underlined that the proposed Czech project “failed to reach the minimum 42% net energy efficiency for a new power plant and that this would result in higher emissions of CO2”,[56] the assessment of the Czech government showed that “the project cannot seriously affect the environment and populations outside the Czech Republic because its realization will reduce the current emissions of major air pollutants and because the CO2 emissions of the plant are marginal compared to global emissions”.[57] This exchange of information between two States from different and very distant regions has proven that climate change is an issue of global interest and no matter how “remote” a State can be, it pays attention to the potentially harmful activities of the industrialized nations.

6. Other International Venues

       Beyond the interstate litigations, individuals may also file complaints within the regional human rights protection systems such as the European Court of Human Rights (and to invoke the violation of rights as those inscribed in Article 2: right to life, Article 3: the prohibition of torture and the correlative obligation of non-refoulement, Article 8: right to private life, Article 1 of the of Protocol No. 1 to the Convention: right to property etc.), the Inter-American Commission on Human Rights or even the Organisation for Economic Co-operation and Development. It is important to draw attention on an expected breakthrough case, that could be potentially the first successful application before the ECtHR on the interaction between the protection of human rights and climate change. The case is still pending, as the application was submitted in 2020, but is referred to as Duarte Agostinho and Others v. Portugal and 32 Other States. Inspired by national judicial decisions as Urgenda, the applicants, basically, claim that climate change affects the enjoyment of the right to life itself and the right to private and family life, guaranteed by Articles 2 and 8 of the European Convention on Human Rights (they even considered to be discriminated, as a young generation that would have to endure the negative consequences of climate change during their lifetime, and also invoked article 14 of the Convention). The infringement of these rights is presumably provoked by correlative violations of various obligations that include “Article 2 of the Paris Agreement and its aspiration of limiting increases in global average temperatures to 1.5C; the objectives of the UNFCCC; as well as provisions in the UN Convention on the Rights of the Child”.[58] In our opinion, the ECtHR should have the audacity to admit the link between failing to comply with climate change mitigation commitments and basic human rights, guaranteed by the Convention (even though it does not directly enshrines the right to a healthy environment), as this link was already recognized at the national level (the Urgenda Case).

      Besides, as presented before, the UN Human Rights Committee could also represent a choice as an international judicial venue. Individuals can submit complaints at the UNHRC (besides the individual complaints of the affected persons, the States themselves are able to file complaints), which oversees the compliance with the provisions under the ICCPR (International Covenant on Civil and Political Rights).

     The competence of the Committee to analyse these issues brought by means of individual complaint was established by the First Optional Protocol to the Covenant, but not all States parties to the ICCPR have chosen to ratify the Protocol. The Optional Protocol has 116 States parties from a total of 172 Parties to the ICCPR. The individuals can address the Committee only if they have exhausted the domestic procedures to sustain their claim (Article 2). In principle, there is no statute of limitations for the complaints, but article 99 of the Rules of Procedure of UNHCR states that “a communication may constitute an abuse of the right of submission, when it is submitted five years after the exhaustion of domestic remedies by the author of the communication, or, where applicable, three years from the conclusion of another procedure of international investigation or settlement, unless there are reasons justifying the delay, taking into account all the circumstances of the communication”. Additionally, a complaint will not be analysed if it makes the object of another international examination (this does not include procedures under Human Rights Council’s mechanisms), it is incompatible with the provisions of the ICCPR or contravenes with the principle of res judicata. A similar procedure is provided by the Optional Protocol to the ICESCR in case of alleged violations under the ICESCR brought before the Committee on Economic, Social and Cultural Rights.

       We consider that this analysis is extremely necessary because the UN Human Rights Committee has recently decided in a case which referred to an individual communication alleging violations of human rights, specifically the right to life, in the context of a forced departure caused by sea-level rise (the abovementioned case of the Kiribatian Ioane Teitiota). Even though it has not found a violation, the decision of the Committee was a ground-breaking one, especially because it opened the possibility for future recognitions of the “climate refugee” status or, more precisely, for an enhanced protection guaranteed to the environmentally displaced persons.[59]

        Finally, we must signal the initiative of the Torres Strait indigenous people, who experience regular flooding because of sea-level rise. They also filed a complaint with the UN Human Rights Committee in 2019, accusing Australia of violating their human rights, protected by the ICCPR, due to the State’s contribution to climate change. The islander’s representative affirmed that “Climate change is fundamentally a human rights issue. The predicted impacts of climate change in the Torres Strait, including the inundation of ancestral homelands, would be catastrophic for its people”.[60] Even though such an effort will only lead to a nonbinding decision, if successful, it has the ability to put a considerable pressure on the Australian government. In their national petition, the Torres Strait people claimed that “international human rights law means that Australia must increase its emission reduction target to at least 65% below 2005 levels by 2030, going net zero by 2050, and phasing out coal”.[61] So far, the Australian government used the argument of the possible and distant threat to human rights, as the low-lying islands are not imminently endangered by the effects of sea-level rise and told the Committee to dismiss the case based on the fact that “it concerns future risks, rather than impacts being felt now, and is therefore inadmissible”.[62] However, they could be contradicted with the argument that “climate change risk is foreseeable and only preventable through immediate action in the present”.[63] The question of Australia’s human rights violations remains opened and whatever the decision of the committee, it will be one of interest to the international community as a whole. Hopefully, it will be a step forward after the Ioane Teitiota Case, which left opened the door of climate change refugee acknowledgment, and maybe Torres Strait Case will leave opened the door of admitting the obligation of a State to reduce its emissions under human rights law.

7. Filing Claims with National Judicial Bodies

       Is it more convenient to search for justice at the international courts (for example, to request an advisory opinion of the International Court of Justice) or to file claims with the national judicial bodies? Over the last few years, we have noticed an increase of the climate change litigations addressed to national judicial courts, despite challenges with establishing the causal link. There are States that guarantee the constitutional right to a healthy environment (Bolivia, Brazil, Colombia, Croatia, Russian Federation or South Africa) and we can think of possible appeals to the constitutional courts in the case of those persons affected by sea-level rise and climate change in general. Recently, in April 2021, the Federal Constitutional Court of Germany decided that „the provisions of the Federal Climate Change Act of 12 December 2019 (Bundes-Klimaschutzgesetz – KSG) governing national climate targets and the annual emission amounts allowed until 2030 are incompatible with fundamental rights insofar as they lack sufficient specifications for further emission reductions from 2031 onwards”.[64] Thus, the plaintiffs who tackled the act complained that the government should have proved more urgency and precision in its plans to comply with the Paris Agreement and other obligations to prevent the negative consequences of climate change: „the legislator should have taken precautionary steps to mitigate these major burdens in order to safeguard the freedom guaranteed by fundamental rights. […] The legislator must enact provisions by 31 December 2022 that specify in greater detail how the reduction targets for greenhouse gas emissions are to be adjusted for periods after 2030”.[65]

       Another popular trial is the already presented case of Ioane Teitiota, who could have become the world’s first “climate refugee” (Teitiota v Chief Executive Ministry of Business, Innovation and Employments, Court of Appeal of New Zealand, 2014). As already presented, Teitiota, a citizen from Kiribati, applied for refugee status in New Zealand, claiming that sea-level rise poses a serious threat to his right to life. The Courts of New Zealand rejected his application, as they did not welcome an extensive interpretation of the refugee’s definition provided by the Refugee Convention. The denial of his right to permanent residence was based on the fact that the applicant, whose livelihood was affected, still had alternatives to resume his life with dignity in his home country, as the threat of extinction is not an imminent one in the context of a slow-onset event, as sea-level rise. However, the New Zealand judges admitted that their goal was not to ignore the negative consequences of climate change, but to point out that the issue should not have been addressed under the unfavorable Refugee Convention. He could have been granted a “discretionary” protection (especially if he had family ties in New Zealand), but that would not have been equivalent to accepting refugee status or human rights claims. Even if Teitiota was hit by a refusal at the national level, he continued his crusade at the UN Human Rights Committee, where his claims were turned down again, but the opinions expressed on his case left the door open to a potential non-refoulement rule to apply to people fleeing from rising sea levels.

       Furthermore, a landmark decision on climate change is the abovementioned Urgenda Case (Urgenda Foundation v. State of the Netherlands). The Urgenda Foundation, a group of Dutch environmentalists, along with other Dutch citizens, sued the Dutch government, requesting a more energic contribution in climate change mitigation. The audacious decision of the Hague Court of Appeal, which was upheld by the Dutch Supreme Court in 2019, concluded that by “failing to reduce greenhouse gas emissions by at least 25% by end-2020, the Dutch government is acting unlawfully in contravention of its duty of care under Articles 2 (right to life) and 8 (right to private life) of the ECHR. […] The court determined that the Dutch government has an obligation under the ECHR to protect these rights from the real threat of climate change”.[66]

       Other popular cases are Leghari v. Federation of Pakistan (where a Pakistani court recognized human rights as relevant to hold liable the government for not thoroughly implementing a climate change policy: “the delay and lethargy of the State in implementing the Framework offend the fundamental rights of the citizens”)[67] or a 2018 case from Columbia, Demanda Generaciones Futuras v. Minambiente, where the Supreme Court attributed legal personality to the whole Colombian Amazon region and admitted that that the “fundamental rights of life, health, the minimum subsistence, freedom, and human dignity are substantially linked and determined by the environment and the ecosystem”.[68]

       Additionally, a Peruvian farmer considered that the melting of the glacier found in the vicinity of his town from the Peruvian Andes and the flooding resulting from it is the consequence of the polluting activity of a German enterprise (RWE, Germany’s largest electricity producer). He introduced his application in 2015: Luciano Lliuya v. RWE AG (Case No. 2 O 285/15 Essen Regional Court) and he actually calculated the impact of RWE’s emissions on the climate from the region of its hometown Huaraz, concluding that he must be compensated with 17.000 euros that correspond to the 0,47% company’s contribution to global greenhouse gas emissions. The result of this lawsuit is eagerly awaited by all environmental activists and, if successful, it will be a resounding victory that will fuel the belief that a greenhouse gas emitter may be held liable for environmental damage and negative consequence of climate change caused in different jurisdictions around the world, legally admitting the global impact of the polluting activities.

8. Conclusion

        We have seen that choosing a judicial venue is not an easy task, as contentious procedure would take too long and, at first glance, they look like a war of attrition with not many positive final perspectives. Some scholars even argue that the judicial path would not be the most effective to follow: “Relying on the courts to develop the meaning and scope of existing protection instruments to assist those who move in response to the impacts of climate change will be a slow, unpredictable, and jurisdictionally varied method for securing protection Courts can play a vital role in ensuring that human rights treaties are interpreted as living instruments which can respond to changing social circumstances”.[69] Nevertheless, we believe, at least, that judicial consultation could provide an essential relief and, thus, a request for an advisory opinion of the International Court of Justice, for example, on the legal consequences of sea-level rise is welcomed (together with national trials in various States that presumably fight against climate change and its effects), especially considering that it is expected to see an evolution of the climate change litigation movement over the next few years: “If States do not raise the level of ambition of their national contributions to the Paris Agreement, if they do not honor their financial and technology transfer commitments, climate litigation cases and adjudicative approaches could skyrocket in the years to come, not only at the national but also at the international level”.[70]

       In conclusion, as admitted in a report supported by the London School of Economics, “Litigation is clearly an important part of the armory for those seeking to tackle climate change. Court cases contribute to greater awareness of climate change issues and can force changes in behavior that could reduce greenhouse gas emissions. It remains an expensive and potentially risky option, though, if compared to other routes like policy-making”.[71]

[1] PhD candidate, Faculty of Law, University of Bucharest. E-mail:
The opinions expressed in this paper are solely the
author’s and do not engage the institution he belongs to.

[2] IPCC, Climate Change 2021, The Physical Science Basis, Summary for Policymakers,

[3] Ibid.

[4] Stephen Humphreys, Competing Claims: Human Rights and Climate Harms, in Humphrey Stephen, ed., Human Rights and Climate Change, Cambridge University Press, 2010, p. 65.


[6] Hague Court of Appeal, Urgenda Foundation v. Netherlands, Case No. 200.178.245/01, Decision, 9 October 2018.

[7] OHCHR Press Release, available at

[8] Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), ICJ, Judgment, 3 February 2006, ICJ Reports 2006, par. 127.

[9] Bogdan Aurescu, Ion Gâlea, Elena Lazăr, Ioana-Roxana Olteanu, “Scurtă culegere de jurisprudență/Memento de jurisprudence”, Hamangiu, 2018, p. 71

[10] Advisory Opinion of 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, par. 106.

[11] Corfu Channel case (United Kingdom v Albania), ICJ Judgment 1949, ICJ Rep. 4, p. 22.

[12] Trail Smelter Arbitration (United States v Canada) (1938–41), RIAA Vol. 3, p. 1965.

[13] Richard Tol and Roda Verheyen, ‘State Responsibility and Compensation for Climate Change Damages: A Legal and Economic Assessment’ 32 Energy Policy 1109, 2004, p. 1117.


[15] The Climate Coalition, The Glasgow Action Plan, 2020, p. 4.


[17] Tiffany Duong, “When islands drown: The plight of climate change refugees and recourse to international human rights law.” University of Pennsylvania Journal of International Law, no. 31, 2010, p. 1244, note 20.

[18] Derald Hay, Post-Kyoto Stress Disorder: How the United States Can Influence International Climate Change Policy, 15 Missouri Environmental Law & Policy Review, p.506, 2008.

[19] Tiffany Duong, op.cit., p. 1246.

[20] Ibid., p. 1245.

[21] ILC, Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, Yearbook of the International Law Commission, 2001, vol. II, Part Two, Commentary to Art. 47, par. 1.

[22] ILC Articles on Responsibility of States for Internationally Wrongful Acts (n 279) 317–18, Commentary to Art. 47, par. 8.

[23]Walter Kälin, and Nina Schrepfer, ‘Protecting People Crossing Borders in the Context of Climate Change: Normative Gaps and Possible Approaches’ (Study for the Swiss Ministry of Foreign Affairs, April 2011), p. 7.

[24] Article 12, pt. 8, Kyoto Protocol to The United Nations Framework Convention on Climate Change, United Nations, 1998.

[25] Rovere, Stocchi, and Vacchi, ‘Eustatic and Relative Sea Level Changes’, Current Climate Change Reports, No. 2, 2016, p. 221.

[26] UN General Assembly, Human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, Seventy-fourth session, A/74/161, 15 July 2019, par. 13.

[27] Oxfam, Extreme Carbon Inequality: Why the Paris climate deal must put the poorest, lowest emitting and most vulnerable people first, Oxfam Media Briefing (Oxfam, 2015).

[28] Gregory Wannier & Michael Gerrard, Eds., Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate, Cambridge, Cambridge University Press, 2013, p. 412.

[29] Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), ICJ, Judgment, 5 October 2016, ICJ Reports, 2016.

[30] Adrian-Nicusor Popescu, The rising waters of the oceans: a crisis in human rights law, in The Law of Crisis/Crises in Law, Universul Juridic, Timișoara, 2021.

[31] Yukari Takamura, Climate Change and Small Island Claims in the Pacific, Climate Change: International Law and Global Governance: Volume I: Legal Responses and Global Responsibility, ed. by Oliver C. Ruppel et al., 1st ed., Nomos Verlagsgesellschaft MbH, Baden-Baden, 2013, p. 672.

[32] Hanna Lubber: The erga omnes obligation to protect the Arctic marine environment. An evaluation of the obligation of Arctic Coastal States to protect the marine environment erga omnes against pollution resulting from mining activities in the extended continental shelf, University of Amsterdam, July 2018, p. 38-39.

[33] Declaration by the Parties, UNFCCC, Fiji, Kiribati, Nauru, Papua New Guinea.

[34] Gregory Wannier & Michael Gerrard, Eds., op. cit., p. 416.


[36] Gregory Wannier & Michael Gerrard, Eds., op. cit, p. 425, quoting Trail Smelter Case.

[37] Sumudu Atapattu, Climate change and displacement: protecting ‘climate refugees’ within a framework of justice and human rights, Journal of Human Rights and the Environment, Vol. 11 No. 1, March 2020, p. 110.

[38] International Bar Association, Achieving Justice and Human Rights in an Era of Climate Disruption, Climate Change Justice and Human Rights Task Force Report, 2014, p. 35.




[42] Richard Heede, Tracing anthropogenic carbon dioxide and methane emissions to fossil fuel and cement producers, 1854–2010, Climatic Change volume 122, 2014, Abstract.

[43] Anemoon Soete: The legal position of inhabited islands submerging due to sea level rise, Gent University, 2013-2014, p. 64.

[44] Human Rights Council, thirty-eighth session, Resolution adopted on 5 July 2018, Human rights and climate change, A/HRC/RES/38/4, p. 2.


[46] Ibid.

[47] Fiftieth Pacific Islands Forum Funafuti, Tuvalu, 13 – 16 August 2019, Forum Communiqué, p. 4, par.16.

[48] PISFCC, Fact sheet: An ICJ Advisory Opinion on Climate Change and Human Rights, p. 2.

[49] Ibid., p. 1.

[50] PISFCC: An International Court of Justice Advisory Opinion on climate change, p. 1.

[51] Ibid., p. 2.


[53] PISFCC, Briefing, p. 5.

[54] Michael Gerrard, faculty director and founder of the Sabin Center for Climate Change Law at Columbia Law School, quote available at

[55]Margaretha Wewerinke-Singh, Between negotiations and litigation: Vanuatu’s perspective on loss and damage from climate change, Climate Policy, Volume 20, 2020, p. 681-692.

[56] European Network of Environmental Law Organizations, Implementation of the Environmental Impact Assessment Directive in the EU: Member States Case law examples from the practice of the European environmental impact assessment litigation, Justice and Environment, 2013, p. 13.

[57] Ibid., p. 14.


[59] Adrian Nicușor Popescu, The first acknowledged climate change refugee? The Romanian Journal of International Law, nr. 23/2020.




[63] Ibid.

[64], BVerfG, Order of the First Senate of 24 March 2021 – 1 BvR 2656/18 -, paras. 1-270.

[65] Ibid.




[69] Jane McAdam, Climate Change, Forced Migration, and International Law, Oxford University Press, Oxford, 2012, p. 268.

[70] Sandrine Maljean-Dubois, Climate Change Litigation, Max Planck Encyclopedia of International Procedural Law, June 2018, p. 18


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