The President of the Maldives and his ministers holding an underwater cabinet meeting to draw attention to the pressing issue of climate change (2009)

On February 3rd 2012, Johnson Toribiong, the President of the Pacific Island Nation Palau, announced that his country will seek an Advisory Opinion from the International Court of Justice (ICJ)  in The Hague regarding the issue of climate change.  In September 2011, the Pacific Island Nation of Tuvalu also made the news when they urged the UN to take action to limit the damages of climate change and stated that they too were prepared to bring the case to the ICJ.

Climate change has already had serious implications for the vulnerable islands of the Pacific  as sea levels continue to rise due to global warming. Scientists have predicted that within a fifty year time-period rising seas will have swallowed up many islands in the Pacific region.

The President of Palau stated that International Law could be a great help in collaborating on a shared solution to the issue of climate change, as years of negotiations on the issue have failed to produce a binding agreement so far.

If the ICJ decides to take on the case, it will be the first legal dispute between sovereign states over the question of liability for global warming.

What measures can states in these circumstances invoke during such a procedure?

Palau announced that it will ask the ICJ to provide guidance on how the No Harm Rule and the UN Law of the Sea Convention applies to climate change damage.

The No Harm Rule is a rule of international customary law that declares each State has a duty to prevent, reduce and control the risk of environmental harm to other States. This rule was first developed and applied in the Trail Smelter case in 1941 and has since been applied in many other cases and was eventually included in the Declaration of the United Nations Conference on the Human Environment.

The No Harm Rule might be very well suited to the problem of climate change as it’s not necessary to show actual harm in order to establish a breach of this rule. This means that demonstrating an increase in risk of harm is sufficient although the increase needs to be significant.

Even though it remains unclear whether or not the nation of Tuvalu  will bring the issue of climate change to the ICJ, it originally meant to file suit on grounds of a breach of general obligations under the United Nations Framework Convention on Climate Change (UNFCCC) . Its argument is that the United States  and Australia, by taking only half-heartedly measures to combat global warming - as evidenced by their refusal to ratify the Kyoto Protocol-  have violated their general obligations as prescribed in the UNFCCC, to stabilize greenhouse gas concentrations (Article 2), take precautionary measures (Article 3), engage in various forms of international cooperation (Articles 3-6), and so forth.

This raises the question if one State’s emissions of greenhouse gases can be linked to another’s climate change damage. For this, there needs to be proof that without the State’s emissions the damage would not have occurred. However, the process of climate change is cumulative and not just one state on its own is responsible for climate change damage alone  In addition, there are still too many scientific uncertainties to properly establish the extent of the damage that is attributable to a particular state.

When it comes to establishing cause and effect, legal scholars advise that  it would be wiser to ease the burden of proof or shift it elsewhere. [1] This has already happened in domestic courts. Where a large numbers of players are involved there is debate as to whether to apply the yardstick of degree of contribution or that of proportionate liability.[2] In the field of International environmental law as well as in international law these principles are still in evolution. [3]

Therefore, an Advisory Opinion of the ICJ would help to give guidelines to the Pacific Islands States and the international community as a whole on what to do to limit the effects of climate change.


 [1]Problems and Prospects of International legal Disputes on Climate Change by Okamatsu, A., Waseda Ocean Policy Research foundation, University, Tokyo, Japan

[2] Problems and Prospects of International legal Disputes on Climate Change by Okamatsu, A., Waseda Ocean Policy Research foundation, University, Tokyo, Japan

[3] Problems and Prospects of International legal Disputes on Climate Change by Okamatsu, A., Waseda Ocean Policy Research foundation, University, Tokyo, Japan

Other Sources

See you in court: the rising tide of international climate litigation by K. Boom. The Conversation

United Nations News Center

Secretariat of the Pacific Regional Environment Programme

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