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Climate Change and the International Court of Justice

This report, Climate Change and the International Court of Justice: Seeking an Advisory Opinion on Transboundary Harm from the Court, focuses on the international campaign, initiated by the Republic of Palau, to secure an advisory legal opinion from the International Court of Justice (ICJ) on climate change. Palau, with a growing coalition of nations, requests that the United Nations General Assembly seek an ICJ opinion on the question of state responsibility for transboundary harm caused by greenhouse gas emissions. The urgency of climate change, coupled with widespread frustration at the lack of binding international commitments secured through the United Nations Framework Convention on Climate Change (UNFCCC) process, inspired the multistate coalition. The Report is the product of a course taught in Fall 2012 at Yale Law School in New Haven, Connecticut, by Ambassador Stuart Beck of the Permanent Mission of Palau to the United Nations; Aaron Korman, Palau’s Legal Adviser; and Douglas Kysar, Joseph M. Field ’55 Professor of Law at Yale Law School. Eighteen graduate students enrolled at Yale Law School, the Yale School of Forestry and Environmental Studies, and Yale University contributed to the final Report, which was compiled and edited by Halley Epstein, Yale Law School ’14. The Report aims to outline the legal, political, and scientific justifications for the coalition’s request and why the ICJ should issue an opinion on the matter.

Part I, The Brief, presents the advocacy components of a request for an advisory opinion from the ICJ. If and when the General Assembly votes to submit a request for an advisory opinion to the ICJ, all interested nations will have the opportunity to share their positions on the matter. The Brief aims to identify the most compelling arguments about state responsibility for transboundary climate harms, so that members of the campaign coalition can create a united front of representation before the ICJ. Drawing from Intergovernmental Panel on Climate Change (IPCC) reports and other sources, the Brief outlines the scientific evidence of climate change and its transboundary effects, with attention to the effects of a warming world on some of the most vulnerable nations—Palau included. After explaining how to frame the legal question presented to the ICJ, the Brief evaluates the proposed question in the context of prior ICJ advisory opinion requests and responses. Finally, the most authoritative sources of law are analyzed for their value as advocacy tools in this process.

Part II, Background, offers an array of contextual and supporting materials. It introduces the Justices serving on the ICJ and provides insight into their international law experience, prior judicial decisions, and scholarship that might inform their approach to the climate change responsibility question. Next, the Report traces the principle of transboundary harm generally, in U.S. and European courts and across international agreements and conventions. Its analysis suggests that legal authorities support the application of the well-established principle of transboundary harm to the climate change context. The final Background section focuses on policy arguments likely to be persuasive to one of the campaign’s most vocal opponents, the United States, as a way of illustrating why all nations would stand to benefit from application of the rule of law to the climate change context.

The full report is available for download here.

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