Mayer: International Advisory Proceedings on Climate Change

Benoit Mayer (Chinese Univ. of Hong Kong - Law) has posted International Advisory Proceedings on Climate Change (Michigan Journal of International Law, forthcoming). Here's the abstract:

Several island states are expected to be severely harmed by climate change and rising sea levels. In late 2021, Tuvalu, Vanuatu, and other island states launched two legal initiatives aimed at requesting advisory opinions of international courts on the law applicable to climate change. They are planning to ask international courts to clarify the obligations of states to cut greenhouse gas emissions and to pay reparations for the harm already caused, hoping that this would help foster more action against climate change.

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. Contrary to the prevailing view, this Article shows that these initiatives, albeit well intended, are almost certain to fail to achieve their goals, and might 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 would find it difficult to determine the law applicable to key aspects of the questions, such as the modalities of burden-sharing in global efforts on climate change mitigation. And even if a court were to give a meaningful advisory opinion, it is highly uncertain whether powerful states would comply with it. These factors raise the risk that the issuance of advisory opinions might further erode the credibility of international institutions, thus undermining the foundations of any cooperation against climate change.