Abstract:In recent years, global climate governance has increasingly turned to international courts and tribunals through advisory opinions as a means of seeking judicial involvement. The International Tribunal for the Law of the Sea, the International Court of Justice and other judicial bodies have issued advisory opinions on climate change that recognize the close interconnections between climate change, human rights protection and the marine environment, bring greenhouse gas emissions within the ambit of the general obligation to prevent significant environmental harm, and, within the framework of the Paris Agreement, advance a new understanding of the obligation structure attached to nationally determined contributions. These developments give a central interpretative role to the principle of common but differentiated responsibilities and respective capabilities. To some extent, such judicial developments help to remedy the indeterminacy and gaps of treaty texts. At the same time, however, by identifying a broad category of “most directly relevant applicable law”, co-applying treaty law and customary international law, and reintroducing the logic of state responsibility, these opinions place pressure on the institutional balance of the Paris Agreement, complicate the coordination between the climate regime and other regimes such as the law of the sea and international human rights law, and modify the way in which the principle of common but differentiated responsibilities operates in practice. The current trend towards judicialization of climate governance, therefore, calls for careful and cautious assessment. The fundamental way forward for global climate governance remains to adhere to the mechanisms under the United Nations Framework Convention on Climate Change, to deepen international cooperation under genuine multilateralism and party-driven arrangements, and to build a fair, equitable, and mutually beneficial system of global climate governance.

Keywords: judicialization of climate governance; International Court of Justice; International Tribunal for the Law of the Sea; nationally determined contributions; common but differentiated responsibilities

 

Author:He Tiantian, associate research fellow, CASS Institute of International Law; associate professor, Law School of the University of CASS;

Source:6 (2025) Journal of International Law.