Understand the opinion of the Hague Court on the climate in five questions

On Wednesday, the International Court of Justice rendered its advisory opinion on the obligations of states in the fight against climate change. According to the text, well received by environmentalists, countries are bound by “diligence”. Otherwise, they are exposed to consequences. Explanations in five questions.

What was the mandate of the International Court of Justice (CIJ)?

In 2023, the United Nations (UN) had asked the CIJ what are, in international law, “the obligations incumbent on the states” with regard to climate protection. She also asked what “legal consequences” are for the faults with regard to these obligations.

“It could well be the most important legal affair in the history of humanity,” said last year Ralph Regenvanu, the representative of Vanuatu – a small country threatened by the rise of waters, which had launched the initiative to the UN – to the hearings of the “World Court” in Hague.

According to the Court, what are the obligations of the States?

The new CIJ’s opinion does not invent new international law, but juxtaposes several existing executives: United Nations Framework Convention on Climate Change, Paris Agreement, Rights, Human Rights, etc. “It gives a photograph of the current state of international law on climate change,” explains Géraud de Lassus St-Geniès, a professor of climate change law at Laval University.

By brushing this portrait, the court shows “that it is not simply politics”, continues M. de Lassus. “There are rules, and if you do not respect them, there will be consequences,” says the researcher. And that had never been clearly said. In international treaties, we often get around the problem of responsibility by implementing compliance promotion mechanisms. »»

The opinion explains that states do not simply have the obligation to reduce their greenhouse gas emissions (GHG), but rather to exercise the “required diligence” to get there. CIJ judges add that by virtue of the “prevention principle”, all states must make efforts up to the threat. We understand between the lines that even the United States, which sulks the Paris Agreement, are targeted.

By examining all international law, the CIJ also looked at human rights. She believes that a “clean, healthy and lasting environment” is a “prerequisite” for the enjoyment of many human rights, including the right to life. There is an “innovation”, says Mr. de Lassus St-Geniès. Clearly, the Court claims that human rights cannot be respected in a polluted environment.

How to understand the opinion in a Canadian context?

In its memory, deposited last fall, Canada argued before the CIJ that the various levers of international law should not impose legal obligations “contrary” to those which are “carefully negotiated” in climate conferences. Other polluting countries also wanted to prevent the interpretation of the CIJ to create new obligations.

With its clear language on the “illicit facts” that the negligent states commit, the CIJ puts the points on the i. In addition, the magistrates write: “The fact for a state of not taking the appropriate measures to protect the climate system against GHG emissions – in particular by producing or using fossil fuels, or by granting exploration permits or subsidies for fossil fuels – can constitute an internationally unlawful fact attributable to this state. »»

In Canada, the government is favorable to “carbonating” oil projects, rejecting the emissions generated during combustion from the back of the hand. Is the CIJ’s opinion criticize such an approach? “Absolutely,” replies Mr. de Lassus St-Geniès. The professor also wonders if the law on the unity of the Canadian economy of the Carney government – which aims to accelerate major projects, including pipelines – contravenes the new interpretation of the International Court.

What legal consequences is a delinquent state exposed?

UN judges write black on white that states that take “illicit” gestures in terms of climate are exposed to legal consequences. They must stop the fault, then repair it. Compensation may have to be paid to “injured states”. The wrongs and punishment must be deemed “on a case -by -case basis”.

This mechanics are not new, but the Court clarifies an element which, historically, complicated prosecution: the causality of climatic damage. Indeed, the advisory opinion specifies that, although it is difficult to prove a causal relationship in terms of climate – how to show that CO emissions₂ In China flood the Tuvalu Islands? -, that “is not impossible”. “Causality can be appreciated in a slightly more flexible way,” said Mr. de Lassus St-Geniès.

What consequences?

The advisory opinion of the CIJ may give water to the mill for infringing climatic prosecution, debated in courts around the world. On the international scene, however, M. de Lassus does not expect the new text as soon as prosecution is unpleasant.

“The island states have obtained an important advance with the establishment of the fund for losses and prejudices, in 2022. I believe that the objective of the states which are at the origin of the CIJ approach, of which Vanuatu, was not necessarily to develop an interstate litigation, but rather to clarify the obligations of the States in order to have additional arguments within the framework of international negotiations,” he says.

To overcome climate change, even CIJ judges believe that international law will only be one tool among others. They write: “The complete solution to this problem, which overwhelms us, but which we have created ourselves, requires the contribution of all human knowledge areas, whether law, science, economics or any other. »»

“Above all, they add, a lasting and satisfactory solution requires human will and wisdom-on the scale of individuals, society and politicians-to modify our habits, our current comfort and way of life and thus guarantee a future for ourselves and those who will follow us. »»

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