Climate Justice and the Role of International Courts

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Climate Justice and the Role of International Courts

Written by Niharika Gupta

Table of Contents

Introduction

The global climate crisis presents not only an environmental challenge but also a profound question of justice. Climate change disproportionately affects the world’s most vulnerable populations—those who have contributed least to greenhouse gas emissions yet bear the greatest brunt of its impacts. The concept of climate justice frames climate change as a moral and legal issue, focusing on the fair distribution of environmental benefits and burdens, intergenerational equity, and accountability of polluters.

As international negotiations struggle to produce binding climate commitments, the world has witnessed a growing turn to international courts and tribunals as forums for climate justice. From the International Court of Justice (ICJ) to regional human rights courts and arbitral tribunals, these bodies are increasingly called upon to resolve climate-related disputes, hold states and corporations accountable, and define the contours of legal responsibility in the age of ecological crisis.

This article explores the evolving concept of climate justice and examines how international courts are playing a crucial role in advancing legal responses to climate change.

Understanding Climate Justice

Climate justice encompasses the ethical and legal dimensions of climate change, advocating for:

  • Protection of the rights of marginalized and affected communities
  • Recognition of historical responsibility for emissions
  • Fair allocation of the costs of mitigation and adaptation
  • Accountability for environmental degradation
  • Intergenerational equity—protecting the rights of future generations

This approach acknowledges that climate change is not just a technical issue but a matter of human rights, equity, and global governance.

  1. Common but Differentiated Responsibilities (CBDR)
    A foundational principle in international environmental law, CBDR recognizes that while all states share responsibility for addressing environmental degradation, developed countries should take the lead due to their historical contributions to emissions.
  2. Polluter Pays Principle
    Entities responsible for pollution should bear the costs of managing and mitigating its impacts.
  3. Precautionary Principle
    Environmental measures should not be delayed due to lack of full scientific certainty if there is a risk of serious harm.
  4. Right to a Healthy Environment
    Increasingly recognized in international human rights law, this principle affirms that all people are entitled to live in an environment conducive to their health and well-being.

International Courts and Tribunals Engaged in Climate Justice

1. International Court of Justice (ICJ)

The ICJ, the principal judicial organ of the United Nations, adjudicates disputes between states on issues of international law.

  • Advisory Opinion on Climate Change (Ongoing)
    In March 2023, the UN General Assembly requested an advisory opinion from the ICJ on the obligations of states regarding climate change and the legal consequences for causing harm to the climate system. This landmark move—initiated by Vanuatu and supported by over 130 countries—aims to clarify how principles like state responsibility, human rights obligations, and intergenerational equity apply in the context of climate change. While advisory opinions are non-binding, they carry significant legal and moral weight and could guide future litigation and policymaking.

2. International Tribunal for the Law of the Sea (ITLOS)

In a similar vein, the Commission of Small Island States on Climate Change and International Law (COSIS) has requested an advisory opinion from ITLOS to determine the obligations of states under the UN Convention on the Law of the Sea (UNCLOS) to prevent, reduce, and control greenhouse gas emissions and protect the marine environment.

This case may influence the interpretation of climate-related oceanic harm, such as sea-level rise, coral bleaching, and acidification.

3. European Court of Human Rights (ECHR)

The ECHR has accepted multiple cases alleging that inadequate climate action by states violates the European Convention on Human Rights, including:

  • KlimaSeniorinnen v. Switzerland: Brought by a group of elderly Swiss women alleging that the government’s failure to take sufficient climate action endangers their right to life and health.
  • Duarte Agostinho v. Portugal and 32 Others: Filed by Portuguese youth against multiple European countries, claiming violations of their rights to life and private life due to climate inaction.

These cases may set precedents linking climate change to enforceable human rights obligations.

4. Inter-American Court of Human Rights

In 2023, Colombia and Chile requested an advisory opinion from the Inter-American Court on the state obligations related to climate change under the American Convention on Human Rights. The outcome could affirm the extraterritorial and future-oriented responsibilities of states in protecting both people and ecosystems.

5. Investor-State Dispute Settlement (ISDS) Tribunals

Climate justice also intersects with international investment law. Fossil fuel companies have used ISDS mechanisms to sue governments for phasing out coal or canceling oil exploration contracts, claiming violations of investor protections under Bilateral Investment Treaties (BITs).

For instance:

  • RWE and Uniper v. Netherlands: German energy companies sued the Netherlands over its coal phase-out law under the Energy Charter Treaty (ECT).

Such cases raise concerns that investment treaties may undermine climate goals, highlighting the need for treaty reform to balance investor rights with environmental responsibilities.

Challenges in Using International Courts for Climate Justice

  1. Jurisdictional Barriers
    Not all courts have jurisdiction over climate disputes or may require consent from states to proceed.
  2. Lack of Binding Enforcement
    Advisory opinions, while influential, are not legally binding. Even binding judgments may face enforcement hurdles.
  3. Complex Attribution
    Proving causal links between specific state actions and particular climate harms is scientifically and legally complex.
  4. State Sovereignty vs. Global Harm
    Climate cases often challenge domestic policies, leading to tensions between state sovereignty and international obligations.
  5. Resource Inequality
    Vulnerable countries and communities may lack the legal and financial resources to pursue international litigation.

To enhance the role of international courts in advancing climate justice, the following steps are crucial:

  • Clarify Legal Obligations: Advisory opinions from the ICJ, ITLOS, and regional courts can help define the legal duties of states regarding emissions reductions, adaptation, and protection of rights.
  • Recognize Ecological and Intergenerational Rights: Courts can affirm that the rights of future generations and nature itself must be safeguarded within the climate framework.
  • Integrate Human Rights with Climate Law: Establishing that climate inaction constitutes a violation of human rights can empower individuals and communities to seek legal redress.
  • Promote Access to Justice: Legal aid, capacity-building, and support from civil society can enable marginalized groups to participate in climate litigation.
  • Reform Investment Treaties: Modernizing treaties to include climate carve-outs and sustainability clauses can ensure they align with global climate goals.

Conclusion

The climate crisis is a test not just of scientific or political will, but of legal imagination and justice. International courts and tribunals are increasingly being called upon to play a transformative role in this domain—by clarifying obligations, enforcing rights, and enabling accountability.

While challenges remain, the engagement of these courts signals a growing recognition that climate change is not just an environmental issue but a legal and human rights emergency. In the years ahead, international adjudication will be central to shaping the norms, responsibilities, and remedies that underpin a more just and sustainable global climate regime.

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