The government must defuse a legal time bomb

A year ago this month, the International Court of Justice set off what could be a ticking time bomb on the United Kingdom’s public finances. In an advisory opinion, the ICJ ruled that states have wide-ranging duties to prevent climate change, not only under the Paris Agreement, but under treaties such as the United Nations Convention on the Law of the Sea and through customary international law. 

Crucially, the ICJ ruled that a breach of those obligations was an internationally wrongful act, which could allow other states to sue the offending state and to request reparations. Some judges went even further and argued that there is a duty under international law to gradually stop fossil fuel production.

In our new report for Policy Exchange, Tom Grant, Richard Ekins, and I explain how this came about. The Climate Change advisory opinion is part of a recent trend by states to obtain their desired policy outcomes through the International Court of Justice’s advisory opinion mechanism.

Taken at face value, the ICJ’s advisory opinion could open the floodgates for countries of the “Global South” to sue advanced industrialised economies, including the United Kingdom, for their greenhouse gas emissions, potentially going back to the Industrial Revolution.

Using a widely circulated estimate of the economic damages that can be attributed to climate change, and assuming that the United Kingdom is responsible for 3 per cent of greenhouse gas emissions in history, the butcher’s bill comes out to £4.24 trillion, which exceeds the country’s annual GDP.

Lawyers across the world are already considering how to use the advisory opinion to extract payments from not only states, but also corporations. As a leading English environmental law barrister has written, “[t]he ICJ Advisory Opinion now paves the way for significant claims to be brought for reparations by countries harmed by climate change, with potential liabilities likely to reach into the trillions of dollars. It is only a matter of time before the law recognises that similar claims may be brought against companies and, critically, against directors personally.”

The government could and should have taken steps to clarify that it does not accept the advisory opinion of the ICJ, which is not legally binding, but which carries political weight. Instead, in an inexplicable decision, it voted at the UN to endorse it in May this year, thus giving the advisory opinion an imprimatur from one of the states the most affected by it.

Normally, a state can only be sued in the ICJ if it consents to being so sued. The advisory opinion regime existed for international bodies to request the ICJ’s views on legal questions; but it was never meant to be abused by states to sue other states by a backdoor.

Yet this is how the system is being deployed today. A state can now bring another state to court, even if the latter refuses jurisdiction, by getting the UN General Assembly to ask the ICJ for an advisory opinion. Though the advisory opinion is not legally binding, it can be used to pressure the other state into making wide-ranging concessions.

This is exactly what happened in the Chagos advisory opinion. Mauritius could not sue the United Kingdom to try to take control over the Chagos Archipelago because the UK does not allow members of the Commonwealth to sue it in The Hague, so Mauritius simply lobbied members of the UN to ask the General Assembly to ask the ICJ to issue an advisory opinion.

The opinion was then used to pressure the UK into agreeing to give the Chagos Archipelago to Mauritius and for the UK to pay an exorbitant amount to lease it back (the deal hasn’t been ratified by Parliament.)

As the former Lord Chief Justice, Lord Burnett of Maldon, writes in a preface to our paper, “in this Advisory Opinion the ICJ appears to have placed the world’s economy under judicial superintendence. Judicial pronouncements of this sort, and decisions by international tribunals in the future cases that it encourages, arguably usurp legitimate areas of political responsibility but will also, I fear, serve to undermine the legitimacy of the international courts in question.”

This is clearly unacceptable. In our paper, we make a series of recommendations to the United Kingdom government to push back against this outrageous case of judicial overreach. It should reject the idea that the Climate Change advisory obliges anyone to do anything in particular, such as stopping oil and gas operations in the North Sea.

It should reaffirm the non-binding nature of ICJ advisory opinions in the face of attempts, often successful, to pass advisory opinions off as legally binding ones.

And it should opt out of the compulsory jurisdiction of the International Court of Justice, which is what every other permanent member of the Security Council has done. The UK can still go to the ICJ after opting out from the compulsory jurisdiction of the Court, but only if and when it wants to be before that court.

Climate change, as we make clear, is both real and a danger to the world. But the best way to fight it is through the building of consensus and not through judge-backed coercion for reparations for the Industrial Revolution. The government should act before it is too late.