Last night the International Court of Justice provided its
advisory opinion on Obligations of States in respect of Climate Change. Its very long, but the TL;DR is that states have real obligations under climate change treaties and other international law, including an obligation to limit fossil fuels, and that
failing to uphold them may result in legal liability to pay compensation to injured parties. Importantly, these obligations are not just restricted to climate change treaties like the UNFCCC and Paris Agreement, but stem from all sorts of other treaties and agreements, including
Montreal Protocol,
Biodiversity Convention,
Convention on the Law of the Sea, international human rights law, and ultimately, customary international law. So merely sticking your fingers in your ears and withdrawing from climate change treaties - fuck you, America - may change some specific obligations, but ultimately does not remove them or prevent liability.
Internationally, the door is now open for countries suffering climate damage to start suing laggards and deniers and start demanding reparations, with the backing of the international legal system. But the real difference will be its effects on how laws are interpreted within states, and on climate change litigation across the world. Because most legal systems recognise or refer to the relevant international law, and most courts pay attention to the ICJ's definitive interpretation of what that means. So if countries are not meeting the obligations the ICJ says they have, their own courts may be able to say so and force them to do so.
What does it mean for Aotearoa? To give one example, back in January the National-led regime issued a new Paris NDC of a 51-55% cut in emissions by 2035 (from a 50% cut by 2030). This was... unambitious, especially in light of advice from He Pou a Rangi that we could do 55-60% by domestic action alone, and that a fair target would be in the real of 70-75%. That unambitious NDC is clearly illegal in international law, as it clearly does not reflect our "highest
possible ambition", and may not be consistent with the (now legally binding) 1.5 degree target. Another country - the Cook Islands, say - could sue us to force us to raise it. The next government has a cast-iron case for doing so. And all future advice on such targets will reflect the ICJ's ruling (at least if it is competent).
Another example: states have concrete obligations to limit fossil fuels, and granting new permits was marked as an action inconsistent with that. So the legal ground under the regime's plans to restart offshore drilling and subsidise the gas industry just shifted. The climate change clauses in our free trade agreements will be interpreted accordingly, so if it wasn't already illegal and in breach of those FTAs, it definitely is now. And MFAT should be screaming at the regime about that.
Most importantly: our climate change legislation refers explicitly to our international obligations in various places - target reviews, the setting of emissions budgets and emissions reduction plans, and ETS volume limits and unit price settings. The relevant legal instruments are incorporated directly into the law of Aotearoa in the schedules to the Climate Change Response Act. In interpreting them and deciding on those obligations, New Zealand courts are likely to find the ICJ ruling persuasive. While international obligations are explicitly one of only a number of factors for consideration, there's an assumption that the government will behave legally and consistently with its obligations, so in practice they're a limit. Which means that targets, budgets, and plans which are inconsistent with the legally binding 1.5 degree temperature threshold, or with the requirement to exercise due diligence in reducing emissions - might be ruled to be unlawful and forced to be reconsidered. Judicial review just got easier, and the Environmental Law Institute's case challenging the ERP may benefit significantly.
Its less clear what it will mean for cases like Smith v Fonterra, but I guess we'll find out.
Ideally, we shouldn't have to sue our own governments to get them to stop grovelling to the fossil fuel industry and adhere to their clear international obligations. But the ICJ has just given us a weapon to do so, and the people of the world should use it.