Bridging Jurisprudence and Ecology

Earlier this year, the United Nations General Assembly filed a request for an advisory opinion from the International Court of Justice following the adoption resolution on 29 March. The request comes against the backdrop of ongoing climate deterioration, despite the global community’s layered commitments, most recently exemplified by Resolution 77/165. It aims to have the Court elucidate states’ obligations under international law to safeguard the climate system and other environmental facets from anthropogenic emissions of greenhouse gases. Moreover, it seeks clarity on the repercussions of failure to prevent harm to states, particularly small island developing states (SIDS), peoples, and individuals.

Despite discourses pertaining to the environmental obligations of states being a prominent feature of international law in recent decades – best showcased at the Court in Costa Rica v. Nicaragua – a case-by-case approach is still predominant. Though various treaties have been put in place, a void is visible in the sense that there is no connecting chain to tie them together. In line with the precedent set by previous advisory opinions in influencing international law, it is plausible that this advisory opinion will help define a new benchmark to which states may be called upon to adhere.

To address these questions and provide a more nuanced perspective, the Court can turn to the insights offered by the New Haven School of thought. This approach, which goes beyond the basic understanding of (international) law in its textual form, can shed light on how it might best endeavour to provide answers and reach satisfying conclusions in the realm of environmental obligations.

Apropos Features of the New Haven School

Started out as an alternative means to see the law as neither naturally occurring universally nor reliant on legitimising proponents, Myres McDougal and Harold Lasswell’s work found its way to the international legal realm on account of its translatable traits. Essentially, the School provides a more realistic, functional standpoint from which the law should be seen. It offers flexibility by understanding how despite the need for a set system, there are certain social complexities to navigate through.

First, as a result of its domestic roots, the School provides a policy-oriented jurisprudence that strives for reaching common ground among so-called participants who hold a say on an issue, ranging from states to non-governmental entities. By mapping out the actors’ levels of engrossment and bases of power, jurists would be able to better formulate strategies to reach a desired outcome. This overarching theme is today seen in most treaties on specific subjects – a starting point that can be used in making a legislative thematic on, for instance, international environmental law.

The evolution of international climate agreements showcases the practical translation of the New Haven School’s approach. The United Nations Framework Convention on Climate Change first proved that the global community can work together through an institutionalised cooperation to address an urgent common concern. The Paris Agreement, having learned the lessons from Kyoto Protocol’s failure, topped this up by introducing NDCs (nationally determined contributions) as a way to make do with the varying capacities of states.

The opinion-requesting instrument, GA Resolution 77/276, itself quotes at least three different stakeholder categories: states as obligation holders, states (especially SIDS) as impacted parties, and peoples and individuals. Each of these actors would benefit (or be harmed) differently from the opinion. It is the job of the Court to position them in a map and supplement it with sufficient due regard to intricacies of the law in application – which brings us to the second point.

When the New Haven School was first introduced in the States in 1930, it was considered ground-breaking thanks to its very visible use of interdisciplinary approaches. Most notably, it incorporated anthropological considerations to resolving legal issues by understanding policy-making as a process instead of merely accepting it as a product. Today’s version of the School includes other grounds such as economics, international relations, and political philosophy, making interdisciplinarity its foremost feature.

The issue of environmental protection is by no doubt multicategorical with many points of view that can be employed to evaluate its problems. Human rights are of particular concern. In recent years, the global community through the UN has increasingly tied the two together such as seen last year with the adoption of a landmark GA resolution that obtained overwhelming support. Environmental rights, stemming from the concept of the right to a healthy environment which gained notable claim through the Stockholm Convention, are considered pertinent and should be embedded in decision-making across levels – as states have committed to advocate for under operative clause number 4 of Resolution 76/300.

The advisory opinion request’s assertion (its mere fact and the way it is phrased) on the specific attention toward SIDS further illustrates this need. For one, these states are often neglected on the world stage despite them being the most affected by issues such as climate change. This issue of absence of diplomatic leverage – which itself has to do with the economies of the states in question – is exacerbated by the fact that nature and climate change, to these people, are closely intertwined with their livelihood and culture. Initiatives taken by intergovernmental organisations have made use of this to certain extents, but there is yet to be an instrument that can consolidate and extrapolate past and current actions that are still sporadic.

Lastly, as the New Haven School is derived from normative ideas in which it encourages actors – mainly states and international organisations – to perceive the law as a dynamic rather than constant matter, it pushes international ‘legislators’ to be adaptable. In this case, the Court, in rendering the advisory opinion, would have to construct the obligations of states as ever-evolving instead of a static list of things.

Two points are sufficient to argue for the need to do this. First, there is a growing movement among international legal scholars and practitioners in considering environmental rights as a part of customary international law. The Court, as demonstrated in the Pulp Mills dispute, can employ customary principles such as this to reason states’ obligations in environmental matters. Building on this evolving perspective, secondly, scientific evidence should be and have been used in the Court’s reference in rendering decisions on matters that require robust empirical evidentiary basis, especially in relation to human welfare and sustainable development – and climate change is the epitome of such cases due to its wide-ranging implications globally. In the past, the Court has utilised scientific knowledge (or at least reference to the works), most notably in the Gabčíkovo-Nagymaros case. However, its task today is not only to use it as a one-off means or as a piece of supporting its rationale, but rather as a substantive recommendation as its contribution to international law through the advisory opinion.

Looking Beyond “Just” an Opinion

The advisory opinion which the ICJ is tasked with providing is not just one of importance in the short term. It can be even argued that the opinion, though similarly not binding just like its other 28 advisory opinions, will significantly change the international legal framework on climate justice for good due to its two-fold weight: substance and scope of application. The Court can start by addressing the various international treaties touching upon different aspects of the larger issue that are referred to in the resolution and subsequently connect the dots to come up with an opinion that would be used as the international soft standard.

The ICJ’s significance to the global community, as demonstrated by its previous decisions, lies in its potential to shape and interpret international norms through the influence of its rulings. While it is important to clarify that the Court’s decisions, including advisory opinions, do not automatically establish universally binding rules for all states, they do carry significant persuasive authority. The requesting resolution is considered a historical accomplishment of world unity to solve an issue of humanity’s common concern. It is thus only proper for it to craft the advisory opinion in a way that would befittingly solve our collective problem, today and tomorrow.