UN vote on climate change does not change the law, but will affect the courtroom
A clear majority in the UN confirmed that states are obliged to combat climate change. 141 countries voted in favour, 8 against, including the US, Russia and Saudi Arabia. Associate Professor Jason Rudall explains the implications.
The resolution endorses an advisory opinion issued last year by the International Court of Justice (ICJ) which stated that a failure to prevent climate change can amount to an internationally wrongful act under existing international law. Yet, no new legal obligations arise from the resolution, says Jason Rudall, Associate Professor of Public International Law at Leiden University. ‘The legally significant step was the ICJ's advisory opinion last year. What this resolution does is confirm that a very large majority of states accept the ICJ’s interpretation. The key change is that the authority and legitimacy of the ICJ's interpretation have been considerably strengthened because of this new resolution.’
Why this matters in the courtroom
Advisory opinions are formally non-binding, but they still carry significant weight. And that weight has now been reinforced. The underlying idea, Rudall explains, is that international law develops not only through treaties and case law, but also through the way states respond to authoritative interpretations. A UN resolution from the General Assembly on 20 May is precisely such a response.
‘A 141-state majority does not convert the advisory opinion into binding law, but it significantly increases its normative weight,’ Rudall says. ‘I would expect petitioners in climate cases to cite this vote extensively as evidence that the ICJ's advisory opinion is now firmly embedded in the international legal order and will be reflected in the Court’s approach.’
So, the effect is not the creation of a new rule, but a shift in how courts will read the existing obligations. A domestic judge ruling on a climate case can now point both to the reasoning of the world's highest court and to the broad political endorsement of it. That makes it harder for governments to ignore or dismiss that interpretation as marginal or unsettled.
'A 141-state majority significantly increases the normative weight of the ICJ advisory opinion'
What this means for the Netherlands
The Netherlands voted in favour. Nevertheless, the distance between that vote and actual policy may be considerable, Rudall cautions. ‘Voting in favour creates political commitment, but it does not automatically mean that Dutch policy now abides by the standard articulated by the Court.’
The legal question to ask is whether Dutch law and policy meet what the ICJ described as a duty of due diligence under international law: is the state taking all appropriate measures, in line with scientific evidence and the objectives of the Paris Agreement, to prevent significant harm to the global climate system and other states? The Netherlands has a comparatively developed climate framework, and Dutch courts have already shown a willingness to scrutinise this kind of question: first in the well-known Urgenda case, and again earlier this year in the District Court of The Hague's ruling in Greenpeace Netherlands v The Netherlands (Bonaire), which drew explicitly on the ICJ's advisory opinion in its reasoning.
At the same time, Rudall notes, there is ongoing debate on various aspects of Dutch law and policy, and whether they remain compatible with the country's international obligations. With the UN resolution in hand, climate litigants now have a considerably broader and stronger legal toolbox.
Political consequences
For the new Jetten cabinet, which must set out its own course on climate policy, one of the biggest risks in this context may be new domestic litigation building on the consequential advisory opinion, now reinforced by overwhelming political support in the UN General Assembly.
Beyond litigation, there is also a reputational risk. ‘The Netherlands has traditionally presented itself as a champion of the international legal order,’ Rudall says. ‘Once a state publicly endorses an interpretation of international law at the UN, inconsistency between external support and domestic policy becomes harder to defend politically and legally.’