Ah, the progress achieved by social justice progressives. Mass immigration: the devaluation of Western civilisation, delegitimisation of Western culture, demoralisation of white males, sexual assault of white females and retribalisation of once cohesive nations. Gender affirmation: the abandonment of girls and women’s safety, dignity and equality in toilets, changerooms, prisons and sports. Net zero: the deindustrialisation of the West and the impoverishment of its people. The fanatic pursuit of renewables – more accurately described as unreliables – has led to environmental vandalism of the iconic Kosciuszko National Park by the Snowy 2.0 pumped storage project, while in the UK families’ property rights can be overridden by for-profit renewable developers in the push for increased solar power generation.

On 21 June, I commented on how international organisations are taking over an increasing range of functions from the governments of states, posing a threat both to national sovereignty and to democracy with national bureaucrats working in tandem with international technocrats – the lanyard class – to overrule citizens’ choices. This followed a previous article six months ago warning about the threat posed by judicial overreach as unelected and unaccountable judges displace elected governments as the real rulers. Little did I know how soon both theses would be validated by a curious ruling (not a formal judgment) from the International Court of Justice (ICJ).

Over the past two decades, climate activists have essentially adopted a smug ‘we’ve won’ tone on a three-part ‘scientific consensus’ on adverse impacts of rising CO2, human activity being primarily responsible for the rise in emissions and the imminence of climate catastrophe without urgent drastic action. All three parts have come under attack in recent times. Many serious scientists have always been sceptical of the ‘science is settled’ claim on the unique rise in harmful emissions caused by the fossil-fuel-driven industrial revolution. More and more have begun to speak out on the growing panic over a climate emergency. Their response to climate catastrophisation can be summarised succinctly as ‘Rubbish!’, albeit expressed in more polite and scientifically neutral language. The doom merchants have a three-decade-long catastrophic record on predictions of catastrophes. The World Climate Declaration issued two years ago has been signed by 2,000 experts from 60 countries, including over 160 Australians. In the meantime there has been public awakening and rising resentment and firming opposition to the questionable assumptions, significant harms and outright futility of climate targets encapsulated in the slogan ‘net zero’ – in an age when slogans are mistaken for sound and fully costed policy. Consequently many Western governments have begun to backtrack, none more so than the Trump administration that also recognises the strategic folly of climate polices that have demonstrably failed to end global reliance on fossil fuels, added to energy costs while making supply increasingly less reliable, and transferred wealth and industrial might to China.

Faced with growing expressions of scientific doubt, public backlash and policy reversals, climate activists have switched from trying to persuade governments to weaponising the courts to force compliance with their agenda. Article 92 of the United Nations Charter describes the ICJ as the UN’s ‘principal judicial organ’ and all member states are automatically parties to the ICJ. Chapter IV of its Statute, which is annexed to the UN Charter, deals with advisory opinions. Article 96 of the Charter stipulates that the General Assembly may request the ICJ ‘to give an advisory opinion on any legal question’ or authorise another UN body to seek one.

In September 2021, inspired by the youth group Pacific Island Students Fighting Climate Change, Vanuatu launched a campaign for an advisory opinion. On 29 March 2023, the UN General Assembly requested an advisory opinion from the ICJ on the legal obligations and liability of states on climate change. On 23 July, the court published its advisory opinion. Relying primarily on IPCC reports which ‘constitute the best available science on the causes, nature and consequences of climate change’ and on the widespread acknowledgment of the adverse effects of climate change across the UN system, the court concluded that climate change is ‘an urgent and existential threat’. The court justified its conclusion on states’ commitments to both environmental (Kyoto Protocol, Paris agreement, UN Framework Convention on Climate Change) and human rights treaties: the ‘adverse effects of climate change’ such as rising sea levels, drought, desertification and natural disasters, ‘may significantly impair the enjoyment of certain human rights’, including ‘the right to health’. Applying a stringent standard of due diligence, the court held that a state does incur legal responsibility if it ‘fails to take all measures which were within its power to prevent the significant harm’. The ‘obligation to prevent significant harm to the climate system and other parts of the environment… applies to all States, including those that are not parties to one or more of the climate change treaties’ (my emphasis). Thus in the 15 judges’ unanimous opinion, climate obligations are legal, substantive and enforceable, not just aspirational. Previously vague obligations have been elevated to binding duties under customary international law to prevent significant environmental harm and cooperate internationally to uphold fundamental human rights in the face of escalating climate risks. Failure to do so leaves a country exposed to claims for restitution from those who have been harmed.

Ironically, such an opinion from the ICJ is itself not binding but merely advisory. However, it will shape climate governance around the world in myriad ways in the years to come in academia, courts, bureaucracies and civil society. Vanuatu’s special envoy on climate change, Ralph Regenvanu, believes that the ICJ opinion will shift discussions from one of ‘voluntary commitments’ to reduce emissions, to one about binding obligations under international law. It will embolden activist courts and judges around the world who are committed to the climate crusade. The logic underpinning the advisory prepares the ground for individual liability, speech restrictions and legal intimidation. The opinion comes across more like an activist manifesto than a sober judicial pronouncement.

All governments engage in policy trade-offs involving economic goals, development assistance and energy security that triangulate emissions, affordability and reliability. Who exactly will enforce this opinionated reasoning on the geopolitical heavyweights like China, Russia and America? On 29 July the US Department of Energy issued a report that rejects the core tenets of climate alarmism, notes that US policies will ‘have undetectably small direct impacts on the global climate’, and insists that the dominant energy systems deserve to be celebrated for their role in ‘the rise of human flourishing over the past two centuries’. Accordingly, the US is set to revoke many restrictive climate regulations in the push for continued global energy dominance. The previously smug mainstream media has reacted with fury. A New York Times article on 31 July quoted climate scientists who attacked the report for using ‘cherry-picked’ data to support a ‘scattershot collection of oft-debunked skeptic claims’ in ‘a coordinated, full-scale attack on the science’.

To have attracted such flak, the DOE report must be over the target.