International Courts Against the Defunding of Climate Science? Revisiting the ICJ’s Climate Change Advisory Opinion

Introduction

The first eighteen months of the second Trump administration have witnessed a sustained assault on scientific infrastructures enabling understanding of anthropogenic climate change. This has taken the form of cuts to national science agencies; freezes and dramatic reductions in grants to universities; and attempts to dismantle observation arrays and crucial monitoring stations. It has also extended to research jointly conducted with partners in other states, who have received questionnaires requiring them to disclose whether their work involves ‘climate’ or ‘environmental justice’. Environmental Protection Agency head Lee Zeldin has described the goal of the administration as ‘driving a dagger straight into the heart of the climate change religion’.

The current government in the United States is not the first to pursue an anti-science agenda: publicly-funded science and the future conduct of scientific research has been under threat by far-right governments in Argentina and Brazil. But measures taken under Trump 2.0 have had an outsize impact because of the current importance of US-funded climate science in the landscape of international cooperation. These measures have extended to blocking government scientists and officials from attending meetings of the Intergovernmental Panel on Climate Change (IPCC), and to the withdrawal from a number of treaties and UN agencies instrumental in science collaboration on climate, as well as health, oceans, water, and biodiversity.

As climate lawyers have noted, the dismantling of science infrastructures is of critical concern, not least because of the centrality of the best available science to current jurisprudence (see, eg, here and here). This has not been overlooked by international courts. Two of the advisory opinions rendered last year (by the International Court of Justice and by the Inter-American Court of Human Rights) set out novel obligations on states to ‘actively pursue’ or to ‘encourage’ the production of climate science. These have gone largely unexplored in the anglophone commentary (though are noted here and here).

In this short post, I suggest that these advisory opinions signal a new sensitivity of international courts toward the material conditions for climate science in the context of far-right anti-science politics. In what follows, I focus mainly on the ICJ’s Advisory Opinion on the Obligations of States in respect of Climate Change. I outline the obligation set out by the Court and consider some of its implications, as well as the limitations that may hinder it in responding effectively to the contemporary moment.

Obligations to ‘actively pursue’ science as a corollary of prevention

As is well known, the Court’s opinion restated the existence of a customary duty on states to prevent significant harm to the environment. It also affirmed that this duty applies to harms to the climate system which are cumulative and atmospheric rather than cross-border in nature (at [134]). This ‘requires states to take, to the best of their ability, appropriate and, if necessary, precautionary measures, which take account of scientific and technological information’ (at [136]).

Best available science informs the conduct to be undertaken in performance of the obligation of prevention, which ‘may … become more demanding in the light of new scientific and technological knowledge’ (at [284]). As Katalin Sulyok has observed, scientific knowledge, and the work of the IPCC, also played a ‘central role … in how the Court made legal sense of the climate crisis’, and in the newly reiterated legal significance of the 1.5C temperature goal. Given this centrality, it is in retrospect not entirely surprising that the Court would pronounce on obligations on states to produce climate science, as well as to attend to its consequences.

The Court did so through stating that the obligation of prevention encompasses a requirement on states to ‘actively pursue the scientific information necessary for them to assess the probability and seriousness of harm’ (at [283]). Although this obligation was not the subject of significant argument before the Court, it can be understood as arising from the foundational—and widely accepted—role of science in informing the standard of due diligence to be observed. Accordingly, the standard of the requirement to actively pursue scientific information would be one in which a state is required to use ‘all the means at its disposal’ in the performance of that obligation (at [132]).

In the same way as other obligations relating to the prevention of climate harms, it seems safe to assume that the stringency of this obligation is heightened because of the already-existing science regarding the climate emergency (see at [138], and citations there to the ITLOS Advisory Opinion on Climate Change). The Court also emphasised that this requirement is subject to the principle of common but differentiated responsibilities, such that lack of capacity or resources to fulfil the obligation may not result in unlawfulness.

Perhaps understandably given the vast range of scientific work relevant to facets of the climate crisis, the sorts of activities that are mandated by this obligation are not further spelt out. It seems probable, however, that it encompasses a wide variety of conduct, including but not limited to the direct funding of science through university grants or government agencies. This includes climate science relevant to mitigation although, as Vanuatu’s submissions emphasised, the nature and extent of existing anthropogenic climate change is ‘settled science’ (at [3]; and see the Opinion at [284]). The obligation may be of greater relevance for the broad range of scientific and technical information relevant to climate adaptation. Here it is notable that the Court emphasised ‘options … effective in reducing climate risks in certain contexts, such as restoration of ecosystems, the creation of early warning systems, and resilience-enhancing infrastructure’ (at [258]), as well as the relevance of adaptation for the fulfilment of customary obligations (at [282]).

One question is whether the primary focus of due diligence on state processes of assessment envisages a primarily national, rather than international, pursuit of science. In other words, the Court did not clarify whether the obligation as currently framed extends to participation by government officials or scientists in international activities, or to engaging in forms of scientific collaboration. This is in contrast to recognition in other settings of the inherently international nature of much scientific research (see, eg, Whaling in the Antarctic at [213] ff). Other aspects of the Opinion, however, indicate that decision-makers should be mindful of the nexus with the duty to cooperate which, as the Court stated, requires states to ‘continuously develop, maintain and implement a collective climate policy that is based on an equitable distribution of burdens’ (at [306]).

In the same way as other aspects of the obligation of prevention, it also now seems clear that breach of this standard of conduct will give rise to state responsibility (at [409]), and that these breaches are of an erga omnes character (at [440]). This means that the ordinary suite of legal consequences is relevant, including declarations, cessation (which may include requirements to take all means at the state’s disposal to ensure compliance: Rainbow Warrior at [113]) and in appropriate cases, assurances and guarantees of non-repetition. Any contentious case would necessarily involve fact-intensive questions about financial commitments, as well as about capacity. In more extreme cases, actions and rhetoric of the type mentioned at the beginning of the post would be powerful indicia that a state is not ‘actively pursu[ing]’ the sorts of scientific information that must, by law, inform its conduct.

The pursuit of what science? Pluralism and hegemony in climate science

While the Court’s engagement with science production is a welcome intervention in the contemporary landscape, it must be judged by what it omits, as much as by what it envisages. In particular, the question of Indigenous science and kastom knowledge in the Court’s reasons is notable by its absence. This is especially so given its prominence in materials submitted to the Court, including the Expert Report of Anna Naupa and Chris Ballard on Climate Change and Cultural Loss in Vanuatu, as well as in recently concluded treaties and human rights jurisprudence. Scientists themselves have critiqued an exclusion and marginalisation of Indigenous peoples within diplomatic settings that ‘risks reproducing the same perversities of the conventional energy system’ in the climate transition.

Here, the Opinion of the Inter-American Court on Climate Emergency and Human Rights offers a significant contrast. Like the ICJ, the Inter-American Court extended existing obligations in respect of science to the climate situation, stating that states must ‘encourage the development of science in relation to key aspects of the climate emergency’ (at [474]). In doing so, the Inter-American Court recognised the specifically plural nature of this obligation, since ‘scientific knowledge coexists with other forms of knowledge, such as local, traditional and indigenous knowledge’ (at [476]). The Inter-American Court also recognised the particular role of Indigenous women in ‘preserving and transmitting’ these forms of knowledge (at [482]). Significantly for the interpretation of the obligation of prevention, it found that the procedural dimension of the right requires ‘integration of the best available science with local, traditional and indigenous knowledge, and … the joint production of climate knowledge between scientists and the custodians of such knowledge’ (emphasis added, at [480]).

Although the ICJ noted that its discussion of the relevance of human rights law to the obligations of states in respect of climate change was non-exhaustive (at [376]), it did not directly address the right to science, or what pluralism it requires. The lack of intercitation on this aspect is a contrast to what Jacqueline Peel has termed the remarkable ‘connectivity’ of many other aspects of the ICJ’s Opinion. This lack of intercitation is also true of the Separate Opinion of Judge Charlesworth, which noted evidence received by the Court on ‘how forced migration caused by climate change has led to the loss of Indigenous knowledge, rituals and customs’ (at [17]) and the relevance of this loss for the ‘potentially discriminatory effects of measures taken to respond to climate change’ (at [29]). However, given that the Court affirmed the direct relevance of the ‘core human rights treaties’, including the ICESCR and the cognate right to science (at [145]), the question of joint production raised by the Inter-American Court remains relevant for future lawmaking and dispute resolution in this area.

Finally, the Court’s emphasis on the obligation to ‘actively pursue’ science as conditioned by the principle of common but differentiated responsibilities raises questions about the hegemonic nature of the science order such an obligation envisages. As Caroline Foster has noted, the Court eschewed firm distinctions between ‘developed’ and ‘developing’ states in favour of a more granular exploration of national circumstances. Yet even this differentiation on more concrete rather than taxonomic grounds ultimately endorses a science order funded and shaped by wealthy states. Special Rapporteur Xanthaki has emphasised that in an unequal research landscape, ‘[s]cientific priorities and modalities tend to be determined by donors and researchers from the global North’. Instead—and as has also been the subject of work by legal scholars and philosophers of science—she found that genuine fulfilment of the right to science requires a ‘wide, inclusive and decolonized understanding’ of that science. Given the recent and dramatic reversals of US funding for scientific infrastructures explored above, there are also real questions as to how robust such an unequal science order will be in the future.

Conclusion

The ICJ’s crafting of the obligation of prevention in a way that attends to the underlying conditions for its fulfilment is a welcome engagement with the stark reality of climate science defunding. As Justina Uriburu has powerfully argued, this engagement will not be made real in isolation: ‘international law, by itself, does not fail or succeed, save or abandon’. Instead, it should be an opening for conversations with governments, science agencies, national academies, university leaders and tertiary sector unions. International lawyers and settler courts must grapple with how these obligations require not merely the pursuit but the co-production of science with First Nations, and how to concretise respect for sovereignty and for the possibility of refusal in that encounter. And in any such endeavour, international lawyers must attend to the plural and contested nature of science, as a discipline already in resistance.