Kiss your “good faith” efforts goodbye: Courts get tough on climate action

With the worsening of the climate crisis, international courts have entered the arena. The International Tribunal for the Law of the Sea (ITLOS) took a massive step forward in its recent advisory opinion. ITLOS leaves no doubt: States are duty-bound to protect the oceans from the drivers and impacts of the climate crisis.

For those who have hidden behind the limitations of international climate treaties, this opinion should leave no doubt whatsoever: compliance with the UNFCCC and Paris Agreement is not enough to uphold the full range of obligations under international law. If anyone thought that showing up at a conference and making pledges here and there is enough, now it’s clear: you have to actually do the work and take all necessary measures to prevent, reduce, and control the GHG emissions polluting the marine environment.

We know that protection of the global commons is a matter of life and death – not just for entire marine ecosystems, and for the coastal and island communities most directly dependent on them and at greatest risk from the climate crisis, but for all of humanity and the planet.

And that’s not all.  In addition to this amazing ITLOS opinion, two other courts are also at work. Attention is now on the Inter-American Court of Human Rights and the International Court of Justice (ICJ) and the potential of their pending advisory opinions. In particular, the ICJ has both a unique opportunity and unparalleled authority to say what international law requires States to do, to stop doing, and to undo with respect to the climate crisis and its devastating impacts. Both courts may confirm that States have longstanding obligations under multiple sources of international law to prevent and minimise the climate crisis, and to remedy its past and present harms.

ECO knows States already submitted one round of written arguments (though the ICJ inexplicably keeps them confidential), but the game’s not over. Now countries have the opportunity to advance ambitious and progressive arguments before the Court’s 15 August submission deadline. States must make arguments explaining the existing consensus on the best available science, the validity of other sources of international law including environmental law and human rights law to guide their obligations.