International Advisory Proceedings on Climate Change

Several island states are expected to be severely harmed by climate change and rising sea levels. In late 2021, several island states launched two legal initiatives aimed at requesting advisory opinions of international courts on the law applicable to climate change. In the hope of fostering more action to combat climate change, these states are asking international courts to clarify the obligations of states to cut greenhouse gas emissions and pay reparations for harm already caused.

This article provides the first comprehensive assessment of the feasibility and desirability of international advisory proceedings on climate change. It analyzes recent developments and engages critically with the main substantive and procedural aspects of potential advisory proceedings. This article demonstrates that, contrary to the prevailing view, these well-intended initiatives are almost certain to fall short of their goals and may even be counterproductive.

The likely failure of advisory proceedings on climate change results from several factors, including jurisdictional challenges and questions of judicial propriety. A court tasked with adjudicating such an advisory proceeding would find it difficult to determine the law applicable to key aspects of the questions presented, including modalities of burden-sharing in global climate change mitigation efforts. And even if a court were to offer a meaningful advisory opinion, it is highly uncertain whether powerful states would comply. These factors raise the risk that the issuance of an advisory opinion would further erode the credibility of international institutions, undermining the foundations of future cooperation combating climate change.