The ICJ’s Advisory Opinion on Obligations of States in respect of Climate Change is one of a string of recent cases which has brought the ICJ to the centre of public discussions of international law (see coverage of proceedings on the BBC, the Guardian, and Forbes), and academic commentators have already noted the significance of the case for procedural rules on the participation of small island developing states and amicus curiae from NGOs, the establishing of obligations erga omnes, and the Court’s use of experts fantômes. In this short post, I want to focus on a different aspect of the Advisory Opinion: namely, its temporal significance, as a decision over when climate change began, how it manifests in our present, and how it will develop in the future.
Time may seem a marginal issue for understanding climate change. Yet across the submissions of the 96 states and 11 international organisations participating in the case, different histories, presents, and future expectations are again and again put before the ICJ to guide its decision. For some states, climate change has a long history, its origins stretching back decades to the emergence of scientific consensus on climate change in the 1960s, or even further back to colonial possession of natural resources and the Industrial Revolution (see, for example, Kenya’s submissions that carbon dioxide emissions should be measured from 1850). This creates a differentiated present: while some states have historically made the largest contributions to climate change, it is others that have been forced to bare its brunt. Accordingly, the history of climate change alters expectations about its future regulation. With the pollution of some states already threatening the existence of others, the ICJ must recognise legal obligations between these states which can halt and rectify the existing damage caused by climate change and restore the right of those states to self-determination over their future (see, among many passing citations by other states, the detailed submissions on self-determination by the Melanesian Spearhead Group, the Republic of Fiji, the Marshall Islands, Papua New Guinea, Kiribati, Liechtenstein, Micronesia, Namibia, Nauru, Palau, Saint Vincent and the Grenadines, Samoa, and Tuvalu).