The world’s top court is set to decide what legal obligations countries have to respond to climate change — a set of questions that could have significant implications for Canada.
This month, the International Court of Justice (ICJ), housed in The Hague, the Netherlands, announced it would hold hearings in December to answer two broad questions. The first is, what are the obligations of states under international law to protect the climate from human-caused greenhouse gas emissions? The second: what are the legal consequences for failing to act?
The ICJ’s answers to those questions will be in the form of an advisory opinion. It would be non-binding, but nonetheless would clarify countries’ legal responsibilities, and is widely expected to influence international climate change negotiations.
Beyond its impact on negotiations, Ecojustice lawyer Fraser Thomson told Canada’s National Observer it can also be expected the opinion could shape how Canadian courts deal with governments’ responsibilities to act on climate change.
“These kinds of opinions can carry significant legal and moral authority across the world in determining the scope of international law,” Thomson said.
People around the world, including in Canada, are increasingly turning to courts to hold their governments accountable to their legally binding emission reduction goals under the Paris Agreement.
Canadian climate cases are far-ranging, and include Competition Bureau Canada’s investigations into alleged greenwashing from the Pathways Alliance, Wet’suwet’en challenges to fossil fuel projects they allege violate their constitutional and human rights, and youth challenges alleging the Ontario government violated the Canadian Charter of Rights and Freedoms when it walked back emission-reduction targets in 2018.
“As politicians have failed to address this crisis, citizens are increasingly turning to courts to protect their most fundamental rights,” said Thomson, who leads Ecojustice’s work on the youth challenge to Ontario.
The lawsuit, called Mathur, et al. v. Her Majesty the Queen in Right of Ontario, is the first charter climate case to be argued in any courtroom in Canada, Thomson said. The argument is that by weakening emission reduction targets, Ontario is exacerbating the climate crisis. Because the science is overwhelmingly clear that a hotter planet means more heat waves, floods, and fires — which have negative health impacts on people — the young applicants argue it violates their rights.
“We know that this will contribute to widespread illness and death, and therefore the case is proceeding on that basis saying that it violates Ontario's charter rights to life, security of the person, and equality,” he said.
The Mathur case was heard in 2022 by the Ontario Superior Court but was dismissed in April 2023. Youth and their counsel have since appealed the ruling, and the Ontario Court of Appeal heard the case in January. A decision is pending.
“We believe that the verdict could transform how governments address the climate emergency here in Canada,” Thomson said.
There are 2,666 climate related litigation cases around the world, according to a Global Climate Change Litigation database maintained by Columbia law school’s Sabin Centre for Climate Change Law. The majority of those cases (70 per cent) have been filed since 2015 –– the year the Paris Agreement was signed. The majority of the total cases are also occurring in the United States (1,745), followed by the U.K (139), Brazil (82) and Germany (60). According to the database, Canada has had 38 climate-related cases to date.
In a June report from the London School of Economics and Political Science’s Grantham Research Institute on Climate Change and the Environment, researchers found hundreds of climate litigation cases filed in 2023. The rate of new cases has slowed from previous years, according to the researchers, suggesting a “consolidation and concentration of strategic litigation efforts in areas anticipated to have high impact.”
“Since the ratification of the Paris Agreement, around 230 strategic climate-aligned lawsuits have been initiated against companies and trade associations, with more than two-thirds of these cases emerging since 2020,” the researchers found. “Cases against companies have traditionally been focused on the fossil fuel sector but they are now being launched across other sectors, including airlines, the food and beverage industry, e-commerce and financial services.”
In March 2023, the United Nations’ General Assembly adopted a resolution requesting the ICJ produce an advisory opinion.
Beyond emissions reductions, president of the World Wide Fund for Nature, Adil Najam is urging that biodiversity be included in how states understand their legal obligations.
“Protecting the climate system is impossible without also protecting the natural world,” he wrote in an article published by Nature earlier this month. “Therefore, states’ legal duties must include protecting and restoring biodiversity, which is itself necessary to securing a stable climate.
“It also means protecting human rights — encompassing the right to a healthy environment, to health and life and to an adequate standard of living, which includes access to clean food and water.”
Comments
Court rulings don't matter all that much unless the Court has a method to enforce the ruling. Is there reason to believe that enforceable sanctions would follow?
The world seems to be at a tipping point politically. If we tip one way, then carbon border tariffs might become common enough to drive us to lower emissions. If we tip the other way, no one will pay any attention to the UN and even the weak carbon regs we have now will fall by the wayside. Perhaps we'll know more in November.
It's like Eddard Stark believing that everybody would just do the right thing and obey their King.
The courts are generally too smart to issue rulings that they know will just be ignored with impunity. After such an event, their psychological power is forever lowered. Trump specialized in just ignoring "decent norms" and all that, not just for himself, but to ruin those norms permanently.
I'm an old guy who believes in climate change.
We need more people like Greta in Canada to see any significant changes. Thanks to the young people in Ontario for going ahead with an appeal to the pathetic judgement made against them by the Ontario Court. We know who rules the roost in that province.
However, my hopes of seeing any change here in BC is dying as well. The people who are employed it seems, will not change their minds, even though they should be seeing firsthand at what is happening here as a result of climate change. They are still buying the big 4x4's and SUV's, building the big homes, flying off the never-never land for luxury vacations as if everything is still hunky-dory in this part of the world.
We need to encourage schools at all levels to start teaching the basic science of climate and weather along with the economic problems that they will face in the future -- if they have a future.