Climate Change and the International Court of Justice

Douglas A. Kysar

Yale University - Law School

August 14, 2013

Yale Law School, Public Law Research Paper No. 315

This Report 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 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. Drawing from Intergovernmental Panel on Climate Change 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 strident opponents as a way of illustrating why all nations would stand to benefit from application of the rule of law to the climate change context.

Number of Pages in PDF File: 103

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Date posted: August 15, 2013  

Suggested Citation

Kysar, Douglas A., Climate Change and the International Court of Justice (August 14, 2013). Yale Law School, Public Law Research Paper No. 315. Available at SSRN: http://ssrn.com/abstract=2309943 or http://dx.doi.org/10.2139/ssrn.2309943

Contact Information

Douglas A. Kysar (Contact Author)
Yale University - Law School ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States

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