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U.N. Passes Resolution On Climate Change Responsibility. It Isn’t The Win Some Claim.



Today, the United Nations General Assembly passed a resolution asking the International Court of Justice to issue an advisory opinion on the legal responsibilities of countries in fighting climate change. This is being touted by environmentalist as a major victory which will strengthen countries’ legal responsibility and liability for climate change. As an attorney, I am not convinced.

The International Court of Justice, or ICJ, is a court which was established by the U.N. to handle legal disputes between nations. If it is a dispute between individuals from different countries, that is handled in the regular courts. There are legal processes in place to select which country’s court has jurisdiction, or the ability to settle the dispute. In looking at disputes between countries, that gets more complicated. If the United States wanted to sue Canada over fishing rights off the coast of Maine and Nova Scotia, which they have, they need a place to handle that dispute.

There must be confidence that the court system will be impartial, and using the court of the country you are suing doesn’t reinforce that confidence. Hence, the creation of the ICJ in The Hague. There are other international courts and tribunals created by the U.N. and other governing bodies, like the International Criminal Court which issued the warrant for Putin, but the ICJ handles civil disputes between countries. The only penalty the ICJ can invoke is financial.

The U.N. General Assembly, or UNGA, is the policy making body of the U.N., basically their Congress. The UNGA passed a resolution asking for an advisory opinion from the ICJ on the legal responsibilities a country may have to another country for failing to prevent or causing climate change.


It is important to understand what an advisory opinion is and what it is not. Advisory opinions are a commonly used tool in governments around the world. It gives one branch of the government the ability to ask the judicial branch their opinion on the law. A governor may want to know what the state supreme court thinks about an issue before he takes action. This is a predictor of how the court may react if the governor’s action is challenged. It also is a tool to prevent unknowingly breaking the law. Attorneys can give opinions, but how we interpret a law matters less than how the judges interpret it.

Interpretation is the key word. I have seen some claim that the UNGA asked the ICJ to establish new liabilities for countries on climate change. That is simply not true. Courts do not write laws; that is the job of the legislative body. Courts interpret laws.

Here, the court was asked to interpret if one country should have to pay another country for climate change related damage. This was driven by Vanuatu, an island chain in the Pacific Ocean which is experiencing flooding and typhoons. In response to the resolution, the ICJ will do extensive research, looking at international treaties to determine what liability countries have agreed to. I suspect the Paris Accord will play a large part in their analysis.

Advisory opinions do carry extra weight, but ultimately, they are not binding. They are the legal equivalent of asking a judge “what do you think this law means?” That is why, while the resolution passed with much fanfare, it didn’t face resistance. The advisory opinion will not create new law. It will not establish new legal precedent. It simply looks at the current laws and interprets them, explaining where the laws are today. Of course it passed by a consensus vote, countries want to know how the current law impacts them. The opinion may say the countries have financial liability, it may find they have none. From there, new laws may be written to alter the interpretation, or new cases may be initiated to capitalize on the current laws. This isn’t the win some are claiming.

Source: Fox Business


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