In conversation with Zaneta Sedilekova on the ICJ’s role in climate litigation

"The ICJ opinion has contributed to reframing of the mainstream political and economic thinking, which sees our planet as a servant of humanity"

Zaneta Sedilekova is Founding Director & CEO at Planet Law Lab, London. She is a Biodiversity and Climate Risk Lawyer with a strong focus on risk and opportunities that climate and biodiversity crises present to the financial system as well as individual decision makers.

Zaneta helps clients understand and mitigate their exposure to biodiversity and climate liability risks, prepare for regulatory changes anticipated in the decarbonisation of worldwide economy. Most importantly, in her words, she helps clients turn these risks into opportunities.

Praveen Gupta: The ICJ verdict has either been received with lot of jubilation or dismissed as ‘non-binding’.

Zaneta Sedilekova: Both reactions are valid.

ICJ verdict is an advisory opinion, which means that it is only a non-binding guidance. In other words, no government or court is legally obliged to comply with it. Having said that, the opinion is a clear statement on how international law approaches the main questions related to climate change – it clarifies that under international law, all states have a legal obligation to mitigate their emissions, that a breach of such obligation especially by high-emitting states will entitle states who suffer from such breach to seek a legal remedy, such as compensation, and much more. Those are now principles of international law, and all states are part of international legal order. Ignoring these principles is not advisable.

ICJ pronouncements will become legally binding as part of the domestic law.

This is where the jubilation comes in – this opinion is the clearest guidance we have on international law and climate change. While it does not bind any government or court, many governments use ICJ opinions as guidance when drafting policies and regulations. Courts are also often guided by ICJ’s opinions, not as binding law, but rather as an aid in interpretation and application of domestic law. And this is important – when domestic courts use this ICJ advisory opinion on climate change to clarify legal obligations of governments vis-à-vis climate change under domestic law, ICJ pronouncements will become legally binding as part of the domestic law. This is the true power of ICJ opinions on international law, and indeed, a reason for jubilation.

PG: Does it open floodgates? Young law students from a small Pacific sovereign state made it happen.

ZS: It definitely gives a boost to movement lawyering and climate litigation as many arguments made by ICJ can be used to build ambitious cases against governments. Policies and regulations, especially in relation to the fossil fuel sector, which do not outline transition away from production and consumption of fossil fuels, allow for continuous approval of new projects or indeed provide heavy subsidies to the industry, are all likely to face legal challenges from the civil society supported not only by science and, in some countries, national law, but also by clear statements of international law. That is significant. Impact of such cases against governments will cascade down the economy to corporate actors as well.

Whether or not such measures are successful is not a question of the strength of law, but rather one of political attitudes and beliefs.

Whether or not we will also see more cases filed by states against states for climate reparations is a more open-ended question. International relations are a tricky area. As such international law, including binding ICJ judgments (rather than no-binding advisory opinions), is difficult to enforce given the absence of international police. States usually resort to self-help measures, such as sanctions and diplomatic pressure, or political dialogue, to enforce international legal obligations. Whether or not such measures are successful is not a question of the strength of law, but rather one of political attitudes and beliefs. Given the political volatility the world finds itself in right now, I do not believe that many positive results will be achieved in this way. At the same time, I hope I am wrong on this one.

PG: Are you enthused by the possibility of all the wavering and indecision getting a nudge (from this development) at the COPs on account of contentious adaptation and Loss & Damage issues?

ZS: I am not convinced that the ICJ opinion, however clear and unambiguous, is what is needed to nudge the COP negotiations forward. Ambitious law – in the form of the Paris Agreement – has been in place for a decade now. The progress has been made in that time but definitely not of the scale and ambition we need. The ICJ opinion clarifies that states’ obligations vis-à-vis climate change exist not only under the Paris Agreement, which is an international treaty, but also general international law, under what we call international custom. This binds all states, regardless of whether they have signed up to the Paris Agreement or not.

Now we need international diplomats and politicians to get on that train too.

The ICJ also said that the breach of such obligations will lead to liability in the form of restitution, compensation and the like. With this all clear now, what is really needed is political will to move in the direction of enabling transition on state and international level, which includes the flow of adaptation finance, and in some cases damages, to states that are suffering the most. International law says this clearly, delineating, if you will, the direction of travel for the next few decades. Now we need international diplomats and politicians to get on that train too.

PG: Do you see this reinforcing a sense of hope amongst the upcoming generations?

ZS: Certainly. In the face of the political inertia that we have been witnessing for the past 10 years or so, having the top international court give clarity on important issues of climate change must be encouraging for young people. This is where the wider climate litigation movement really comes in – when people (of any age, I should add) feel that their elected political representatives are failing them, they turn to another branch of the power dynamics, the courts. The courts’ support of their arguments can only bring them hope.

For the first time, having been ignored by their governments for years, the people feel heard and seen.

We have seen this in all high-profile climate cases in the past decade, not only the ICJ advisory opinion. It is almost as if, for the first time, having been ignored by their governments for years, the people feel heard and seen. Such is the power of public-led litigation. At the end of the day, the request for the advisory opinion was originally initiated by young students from the Pacific islands as a grassroot campaign asking for clarify in law and hope in life. They have now received both.

PG: Isn’t all this about integrating Nature into the ways of the state and business?

ZS: It is about finding a way to live in harmony with nature, be it as a state, business, or indeed the humanity at large. It would also help us all to see nature as an ally in this process – not as something we have to manage for our own needs, but as a greater wisdom, much older than our own, that shows us where we need to go. So, for example, the natural process of climate change points us in the direction of travel for our civilization – towards renewable decentralized and democratized energy system, small and mostly self-sufficient communities, more peer-to-peer trading and the list goes on and on. To answer your question then, I see it more as integrating states and businesses into nature rather than the other way round.

If you accept that humanity is embedded in and dependent on nature, rather than the other way round…

PG: We are losing time and must act decisively. Will the verdict facilitate the much desired convergence between diverse societal aspirations and Planetary boundaries?

ZS: Acting decisively is important, I agree. The ICJ advisory opinion has put climate and environmental issues on par with social issues by framing climate change as a human rights matter. So indeed, it has brought forward what many of us knew for decades – that without a healthy planet, there is no humanity (healthy or otherwise). Convergence is likely to follow. I should also say though, that it is a matter of your worldview whether this is expansion and reduction of your thinking.

Climate change is a process that impacts everything on this planet – planetary processes and balances, entire species and ecosystems, and the whole of humanity. If you accept that humanity is embedded in and dependent on nature, rather than the other way round, the right question to ask is whether the ICJ opinion has contributed to reframing of the mainstream political and economic thinking, which sees our planet as a servant of humanity. I do believe it has and that we will see more development – academic as well as practical – on this question.

PG: Many thanks for these crystal clear insights and a strong sense of optimism, Zaneta!

This article is also published on The Diversity Blog. illuminem Voices is a democratic space presenting the thoughts and opinions of leading Sustainability & Energy writers, their opinions do not necessarily represent those of illuminem.

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