By Vicente Paolo Yu
The ongoing proceedings before the International Court of Justice (ICJ) for the advisory opinion on the obligations of States in respect of climate change requested by the UN General Assembly (UNGA) in its resolution 77/276 of March 2023 have highlighted the varying approaches taken by States with respect to such obligations under international law. These proceedings give the ICJ a significant opportunity to clarify the state of international law with respect to the obligations of States to address and combat climate change, the legal bases for and the actions to be undertaken by States in fulfilment of such obligations, and the legal relationship between such climate change-related obligations and other State obligations under international law, such as those relating to human rights and customary law, including the right to development.
Multilateral cooperation to combat the climate crisis has now become even more urgent than when the UNFCCC was adopted in 1992, its Kyoto Protocol in 1997, and the Paris Agreement on climate change and the SDGs, both in 2015. The inadequacy of States’ actions to combat climate change under these international instruments over the past three decades is reflected in greenhouse gas (GHG) emissions continually rising and the adverse impacts of climate change on people, communities, and economies, particularly of developing countries, becoming more severe.
The year 2024 has since been confirmed by the World Meteorological Organization (WMO) as the warmest year on record, based on six international datasets, with global average temperatures at 1.55°C above pre-industrial levels and the decade 2015-2024 being the warmest decade on record. This means that the lower end of the global long-term temperature goal set out under Article 2.1(a) of the Paris Agreement of “holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels” has now been breached on a yearly basis for the first time.
The impacts of climate change, driven by increasing global average temperatures, are significant threats to the ability of countries to pursue and achieve their sustainable development objectives. These impacts include extreme weather events such as more severe and more frequent tropical storms – and slow onset events such as rising sea levels, droughts and desertification, shifts in agricultural patterns, and impacts on industrial and agricultural productivity due to extreme temperatures. These disproportionately affect developing countries, which often lack the resources and infrastructure to effectively respond, thereby exacerbating existing development-based economic and social inequities and vulnerabilities and posing further obstacles to their sustainable development progress and the achievement of the SDGs and the right to development.
The submissions and comments made by States during the proceedings before the ICJ, particularly those coming from many developing countries, sought to link together international law obligations of States in respect of climate change and the real-world adverse effects of climate change, including the downstream impacts on people’s lives and livelihoods and the development prospects of countries.
This approach reflects the principles and provisions enshrined in the UNFCCC and its Paris Agreement. The preamble of the UNFCCC affirmed that “responses to climate change should be coordinated with social and economic development in an integrated manner with a view to avoiding adverse impacts on the latter, taking into full account the legitimate priority needs of developing countries for the achievement of sustained economic growth and the eradication of poverty,” while its Article 3.4 declared that “[t]he Parties have a right to, and should, promote sustainable development. Policies and measures to protect the climate system against human-induced change should be appropriate for the specific conditions of each Party and should be integrated with national development programmes, taking into account that economic development is essential for adopting measures to address climate change.” The chapeau of Article 2.1 of the Paris Agreement states that “[t]his Agreement, in enhancing the implementation of the Convention, including its objective, aims to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty.”
An advisory opinion from the ICJ that authoritatively clarifies how States’ legal obligations with respect to climate change interact with the right to development (as well as other human rights) and the SDGs would reinforce the principles and provisions of the UNFCCC and its Paris Agreement that stress the need to ensure that national climate actions are undertaken in the context of, and with a view to promoting, sustainable development and poverty eradication. Doing so will help clarify the extent to which States are obligated, as a matter of international law, to integrate climate considerations into their development policies and vice versa, thereby aligning with the objectives of SDG 13 (climate action), and how the achievement of this Goal contributes to the achievement of the other SDGs and the right to development of developing countries. This will be of significant interest for developing countries that continue to face the challenge of achieving sustainable development while addressing those posed by climate change.
This holds the potential to influence how States approach and implement the policy interlinkage between effective climate change and sustainable development action. It could also provide a clear legal foundation in support of developing countries’ long-standing push within the multilateral climate change regime for the full and effective implementation by developed countries of their obligations under the UNFCCC and its Paris Agreement to provide support (through finance, technology transfer, and capacity building) to developing countries’ national climate actions in the context of the latter’s pursuit of sustainable development and poverty eradication.
In doing so, the ICJ’s advisory opinion can advance the international discourse in looking at the achievement of sustainable development as a global public good and a collective global responsibility, shaped by national experiences and international law. This would highlight the interconnectedness of global environmental, economic, and social systems when it comes to designing and implementing national, regional, and international approaches to combating climate change and its adverse effects while enhancing the lives and economic welfare of people and communities, especially those in developing countries.
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Vicente Paolo Yu is senior legal adviser at the Third World Network and former Deputy Executive Director of the South Centre. He participated as of-counsel for the Philippines in the ICJ advisory opinion on climate change proceedings.
This Guest Article is part of a project that seeks to raise awareness and build momentum and knowledge around the ICJ advisory opinion on obligations of States in respect of climate change and to promote a better understanding of the implications of the advisory opinion among sustainable development decision makers.
