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, armed with the prospect of advisory opinions. The International Tribunal for the Law of the Sea (ITLOS) landed a massive blow to the climate crisis in its recent delivery and ITLOS leaves no doubt (not that ECO had any): States are duty-bound to protect the oceans from the drivers and impacts of the climate crisis.

To those that have hidden behind the weaknesses of international climate treaties, this opinion makes clear that compliance with the Paris Agreement and the UNFCCC alone is not enough to uphold their obligations under international law.

Turns out showing up at a conference and making pledges here and there is not enough? Who would have thought! Apparently you have to actually do the work and take all necessary measures to prevent, reduce, and control the GHG emissions polluting the marine environment.

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

If you thought that the show was over after this amazing opinion, don’t worry: two other courts are working on more! Attention is now on the Inter-American Court of Human Rights and the International Court of Justice and the potential of their pending advisory opinions.

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.

ECO is getting its popcorn ready for when both Courts confirm that States have long-standing 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 (but hasn’t seen them as 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 inclusive of human rights law and principles of environmental law to guide state obligations, and that breaches of state obligations concerning climate change mean legal consequences. Reparations anyone? 

Now is the time for States to seize this generational opportunity to declare, in uncompromising terms, the human rights duties and prevention obligations that bind states across the entirety of international law. 

Decades of detractors exploiting “good faith” participation in toothless climate regimes to perpetuate business-as-usual emissions stops here.

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