Prime Minister Mark Carney in Huntsville, Ont., on July 22.Nathan Denette/The Canadian Press
Michael Byers teaches global politics and international law at the University of British Columbia.
Pay now, or pay more later. That’s the message sent by the International Court of Justice to fossil fuel-producing countries in an “advisory opinion” on climate change released last week. The opinion responds to a request for legal advice from all 193 United Nations member states.
“Failure of the state to take appropriate action to protect the climate system from GHG [greenhouse gas] emissions including through fossil fuel production, fossil fuel consumption, the granting of fossil fuel exploration licenses, or the provision of fossil fuel subsidies may constitute an internationally wrongful act which is attributable to that state,” the court wrote in its unanimous decision.
This legal finding creates stark choices. For the Canadian government, it means eliminating supports for the oil and gas industry now, or risking having to pay hundreds of billions of dollars in compensation to developing countries later.
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For Canadian oil and gas companies, it means that a wave of climate-damage cases could soon be headed their way, in domestic courts in Canada and around the world.
Advisory opinions of the International Court are not, in and of themselves, legally binding. But the rules they identify are, and this advisory opinion will therefore be relied on by other courts as a highly authoritative statement about the law.
Domestic courts are important because the damage awards that they issue are enforceable, including against any assets that a company might have in another country. This occurs though a well-established system of “international judicial co-operation” designed to prevent ill-gotten wealth from being stashed abroad.
We can also anticipate awards from climate-damage cases in other countries being sent to Canadian courts for enforcement here.
These two now-clear risks – large compensation payments and a wave of court cases – have changed the parameters of viable public and corporate policy overnight.
Canadian Prime Minister Mark Carney, then, can no longer justify including fossil fuel projects among his infrastructure goals. This includes liquefied natural gas plants, the Northern Gateway oil pipeline to the Pacific coast, and carbon sequestration projects (which most climate experts agree are industry greenwashing). Indeed, the responsible thing to do after this advisory opinion would be for all subsidies for the oil and gas sector to be phased out, including industry-specific tax breaks.
Some skeptics will argue that Canada should ignore the International Court of Justice. But Canada, as a medium-sized country in a highly interdependent world, relies on international law in every domain – from enabling trade, foreign investment, banking and transportation, to fighting drug trafficking, terrorism, tax evasion and corruption, to co-operating with NATO allies under a collective security guarantee. You cannot pick and choose between different parts of the international legal system.
Nor would ignoring the International Court of Justice protect us from the consequences of the advisory opinion. It won’t stop the climate damage cases in domestic courts, or the execution of judgments against assets.
Most of all, it won’t make the climate crisis go away. The International Court of Justice carefully assessed the best available scientific evidence. It concluded that climate change constitutes an “urgent and existential threat” that results primarily from the production and consumption of fossil fuels.
For decades, Canada has been a free rider, benefitting from the efforts of others to transition away from fossil fuels while doing little ourselves. We’ve been free-riding because of deeply entrenched interests, mostly in the oil and gas industry, but also in the financial sector, as well as federal and provincial governments.
Increasingly frequent and extreme weather events, floods, droughts, forest fires, sea level rise and ocean acidification are already imposing horrendous personal, social and economic burdens on current and future generations. Continued inaction will only make things worse. The International Court of Justice has done us a favour by reminding us of this.
Mr. Carney must feel that he’s stuck between a rock and a hard place. But with courage and resolve, there is a way out.
The well-respected Prime Minister is uniquely positioned to educate the public about the climate crisis – and the hard choices and big changes it requires.
Canadians rallied behind Mr. Carney when our sovereignty was threatened by U.S. President Donald Trump. The risks for the future of our country are even higher now.