Timing the Environment in International Law

In the closing paragraph of its Advisory Opinion on Climate Change (one surely set to be quoted for years to come), the ICJ recalls that ‘it has been suggested that these advisory proceedings are unlike any that have previously come before the Court’. While able to answer the legal questions put before it by the General Assembly, the Court acknowledges that climate change represents ‘more than a legal problem’: it is ‘an existential problem of planetary proportions that imperils all forms of life and the very health of our planet’, one which ‘[i]nternational law…has an important but ultimately limited role in resolving’ [ICJ, 456].

I find this hesitancy fascinating. In this paragraph, the ICJ acknowledges a fundamental gap between law and climate justice—a limit to how far law and legal responsibility can ultimately take us in protecting our planet. Yet it also expresses a feeling I think many of us share. Climate change occurs at such a large, abstract level that it is impossible for us to comprehend its full scale and history. We live in a ‘fossil modernity’ powered by fuels compacted over millennia in the past, turned into plastics and residues that will remain on the planet for thousands of years after our deaths. How can you begin to conceptualise even your personal responsibility for something that monumental, never mind the legal responsibility of states? 

In their 2013 book Hyperobjects: Philosophy and Ecology after the End of the World, philosopher Timothy Morton designates this as a titular ‘hyperobject’: something so massively distributed across space and time that it is impossible for us to relate to it fully:

[O]ne hundred thousand years? It’s unimaginably vast. Yet there it is, staring me in the face, as the hyperobject global warming. And I helped cause it. I am directly responsible for beings that far into the future, insofar as two things will be true simultaneously: no one then will meaningfully be related to me; and my smallest action now will affect that time in profound ways. (Hyperobjects, p. 60 [emphasis original]) 

In this blog post, I want to argue that one of the primary ways in which international law articulates this problem is through time: more specifically, through the creation of temporal boundaries that delimit climate change’s start, translating the impossibly vast temporality of the climate hyperobject into the smaller scale of legal responsibility. By following how the ICJ, ITLOS, and Inter-American Court of Human Rights have positioned law and climate change ‘in’ time, I aim to show not only the different bordering functions of time, as a kind of jurisdictional scope for international law’s grasp on the climate, but also use this as the starting point for a map of something like the climate ‘imaginary’ of international law—what it is that different regimes and courts visualise, integrate, and exclude from their minds when they try to think about our changing climate.

Establishing the Legal Time of Climate Change at the ICJ

At first blush, the ICJ’s Advisory Opinion would appear to dodge the question of temporality entirely. At paragraph 97, the Court notes that temporality was raised as an issue for both of the questions before it: for question (a), this related to ‘crystallization and identification’ of relevant obligations to protect the climate system; and for question (b), the need to establish an international obligation ‘in force’ at the time in which the allegedly wrongful conduct occurred. While these temporal questions ‘may be particularly relevant for an in concreto assessment of the responsibility of States for breaches of obligations pertaining to the protection of the climate system’, the Court found that their specific determination fell outside the scope of the present Advisory Opinion [ICJ, 97]. A similar exclusion for the purposes of attribution and causation is also made at [ICJ, 423]. 

Nevertheless, the Court provides some suggestions as to where it would border the legal start of climate change. In its description of the context of the request for an advisory opinion, the Court begins in December 1968, with General Assembly resolution 2398 (XIII), which the Court identifies as the starting point for the context of the Advisory Opinion before it [ICJ, 51]. From there, the Court then ties awareness of climate change to the reports of the IPCC, created in 1988 to report every five to seven years on the state of knowledge on climate change and recognised by states as ‘the best available science on the causes, nature and consequences of climate change’ [ICJ, 74]. Considering that this ‘best available science’ is identified as core to states’ obligations of due diligence obligations [ICJ, 137, 254, 258, 284], the duty to prevent [ICJ, 278], and risk assessments and environmental impact assessments under the precautionary approach [ICJ, 298], future litigation on these matters will need to wrestle with how the historical state of knowledge about climate change can be translated into legal obligations at different points in time—that is to say, as an application of the intertemporal doctrine, a point raised in a number of states submissions but unremarked upon by the ICJ. (On the use of science by the ICJ, particularly as relates to the (in part temporally-organised) distinction between ‘harmfulness’ and ‘wrongfulness’, see Katalin Sulyok’s excellent earlier post here. For two recent engagements with intertemporal law, see Remi Fuhrmann and Melissa Schweizer’s article in the German Law Journal and Steven Wheatley’s productive reading of the Court’s treatment of intertemporal law in the Chagos Archipelago proceedings.)

While this temporal framing may seem uncontroversial, states had presented divergent views on the matter during written and oral submissions. Large polluters such as the USA, Australia, France, Russia, and the UK had argued for a tighter temporal frame, beginning only with the UNFCCC in 1992, as the lex specialis that should govern climate change at the expense of other rules of international law. In contrast, a number of less-developed states, more vulnerable to the immediate impacts of climate change, argued that climate change was ‘inseparable from our shared colonial histories’ (the Melanesian Spearhead Group, page 102, para. 7), not only in the ‘colonialism and racism which largely inform our level of development and vulnerabilities’ in the present (the Cook Islands, pages 11–12, para. 9) but also the historical fact that the ‘developed’ position of industrialised states was ‘powered by colonial exploitation’ (Timor-Leste, page 25, para. 13). (For more on the temporalities of state submissions, see my previous EJIL:Talk! blogpost and the introduction to this chapter here.) 

The Advisory Opinion, then, tracks a course between these positions. While rejecting the lex specialis arguments that would have limited responsibility for climate change to only recent acts [ICJ, 162-171], the Court also resisted calls to extend climate change back to encompass its roots in colonial exploitation, with its 1968 starting point locating the start of any claim after the process of formal decolonization. (In this light, it’s also notable that the right to self-determination—featured in many states’ submissions—receives only a cursory mention in relation to sea level rises [ICJ, 357.) As such, climate change becomes synchronised as a shared, contemporary responsibility of all states, rather than the outcome of a differentiated and unequal historical process that is already imperilling the presents and near-futures of certain states and peoples (a point made forcefully in the Separate Opinions of Judge Sebutinde,  Judge Yusuf, and Judge Charlesworth).

Temporal Fragmentation

The work of the ICJ’s temporal boundaries becomes sharper when compared against the two other Advisory Opinions on climate change. In the ITLOS Advisory Opinion, climate change is understood on a much tighter, narrower scale. At paragraph 47, ITLOS begins its legal history of climate change with UN General Assembly resolution 43/53 of 6 December 1988—passed after the drafting of UNCLOS. This creates a different relationship between the law of the sea and climate change. Rather than asking which new obligations must be found to apply to climate change, ITLOS instead asks how climate change can be understood within the existing boundaries of UNCLOS. This means that the Advisory Opinion is not oriented towards preventing the extinction of humanity at large (indeed, the ITLOS Advisory Opinion is almost totally devoid of the existential language that the ICJ uses when describing climate change—there is really only one mention of the stakes of climate change at [ITLOS, 122]) but rather asks only how ongoing climate change can be understood and domesticated within the existing parameters law of the sea, with the meaning of the treaty evolving to meet its new challenges.

The Inter-American Court of Human Rights’ Advisory Opinion poses a very different temporality. For the Inter-American Court, we do not simply face an ‘urgent’ risk from climate change in the future [ICJ, 137], but instead already live in a ‘climate emergency’ [IntAm, Chapter V, pages 16–79]. This drawing back of climate change leads to two significant differences. First, the characterisation of climate change as already existing harm leads to a much earlier historical starting point: not simply in the twentieth century legal sources of the OAS, but in 1750, when human activities first began to influence the global climate [IntAm, 46]. As a consequence, the historical ‘complexity’ of the climate emergency demands present ‘measures to address the structural circumstances that led to it’, specifically a move towards sustainable development [IntAm, 369, emphasis added; see also 204–216]. Rather than casting climate change as a universal, future threat, then, the Inter-American Court looks for structural responses that can undo the past and present harm that is already occurring. 

International Law on a Warming Planet

Scholars can debate the benefits and drawbacks of each approach. Does ITLOS’s more specific and timebound approach give easier purchase for achievable and measurable actions? Is the ICJ simply setting the minimum stage for other courts and tribunals to drive forward real progress? Or is it only the Inter-American Court that properly grasps the significance of our changing climate for the present and the future? But as climate action builds on the foundations of these three Advisory Opinions, these temporal differences not only show different ways of thinking about the climate within different regimes, but may also manifest in distinct obligations, with each regime attributing responsibility for historical contributions at different points in time. This has the potential to fragment rather than systemically integrate the law relating to climate change, all along the bedrock of different temporal imaginaries.

Fundamentally, these temporalities also provide an insight into the ways in which international lawyers make sense of the world in which they work today. It is hard to know what to do when faced with a looming future of extreme climate change—law, like everything else, is fumbling in the shadow of the hyperobject. As Morton writes:

[H]yperobjects are impossible to handle just right… [W]e have no time to learn fully about hyperobjects. But we have to handle them anyway. This handling causes ripples upon ripples. Entities that are massively distributed in time exert downward causal pressure on shorter-lived entities. (Hyperobjects, p. 67)

Thinking through how the ‘causal pressure’ of climate change exerts itself on international law brings to the front the stakes of how our discipline thinks about itself during environmental collapse: which concepts survive, which change, and which practices are upheld or sanctioned into the future (on this, see also Jochen Rauber’s post). Grappling with the manifestation of those existential stakes, as expressed through the discipline’s sense of time, is one clear way to bring into focus what international law’s ‘important but ultimately limited role in resolving’ our climate crisis will be [ICJ, 456].