OPINION
Tuesday, November 10, 2015 7
No Better Time for International Court of Justice
to Rule on Climate Change Science
maha mansoor › contributor
H
igh-profile law yer Philippe Sands
QC suggests current scientific evidence
on climate change goes well beyond the
standard burden of legal proof, while
speaking to an audience of revered judges and
lawyers at an international law and climate change
conference in London this September.
“One of the most i mportant th i ngs an
International Court could do in my view, it is
probably the single most important thing it could
do, is to settle the scientific dispute,” says the
lawyer.
In his lecture, Professor Sands argues that
an advisory opinion should be requested from
the International Court of Justice (ICJ) or the
International Tribunal on the Law of Seas (ITLOS)
on climate change. On one hand, the
former could clarify whether avoiding the
two degrees Celsius warming accepted by
scientists is a legal obligation under customary
international law, while the latter could
identify the responsibilities of countries in
mitigating climate change.
As the official perspective of the highest courts
on international law, an advisory opinion could
squash climate skeptics, encourage international
negotiations on climate change mitigation, and
guide legal cases clarifying international issues
related to climate change.
Advisory opinions can be only obtained through
requests from Member States. This request can
take one of two shapes: through a resolution from
either the UN General Assembly, Security Council
or designated UN bodies, or alternatively and less
likely, through a legal case that has been brought
to the international courts by one country against
another. Additionally, the latter option is in need of
a clarification through an advisory opinion, and due
to the contentious nature of this method, Professor
Sands encourages Member States to pass a resolution
in the General Assembly, which would require at a
minimum, an acquiescence from the majority of the
world.
Even if the process for getting an advisory opinion
were to start immediately, unfortunately a ruling
would not be available until 2018 at the earliest.
In 201 2, Professor Sands heavily critiqued a
General Assembly resolution requesting an advisory
opinion by the ICJ, introduced by the Republic
of Palau. Professor Sands asked: What are the
“. . . an advisory opinion could
squash climat skeptics . . .”
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?
At that point, Professor Sands explained
an advisory opinion could potentially serve
as a discordant addition to the climate change
discourse. Due to a lack of global consensus on the
factors contributing to and the severity of climate
change, the request risked an unintended opinion
impeding the progress on the climate change
negotiations. Much to the chagrin of Palau, and to
the contentment of Profes 6