By Nilufer Oral, Director of the Centre for International Law, National University of Singapore
On 2 December 2024, the Peace Palace opened its doors to an historic two-weeks of States and international organizations appearing before the 15-member Court to express their views on the obligations of States in relation to climate change, widely considered as a threat to humanity on a planetary scale. Vanuatu and the Melanesian Spearhead Group made the first opening statements with the voice of youth included.
This historic moment for the International Court of Justice (ICJ), and the international community, started nearly four years ago by law students in the small island State of Vanuatu. Conscious of the previous unsuccessful initiatives, including that of Palau and the Marshall Islands in 2011 whose efforts were frustrated by a number of States, notably the US, Vanuatu strategically and carefully built its case with other Member States at the UN for a request to the World Court on the critical legal issues concerning climate change and related obligations of States. On 29 March 2023, the UN General Assembly (UNGA), by consensus, adopted resolution 77/276 titled, ‘Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change.’ The last time a request for an ICJ advisory opinion was adopted by consensus in the General Assembly was 75 years ago, on the ‘Reparation for Injuries Suffered in the Service of the United Nations.’
The historic nature of this advisory opinion request was further amplified by the unprecedented number of States and international organizations who participated in the proceedings. Ninety-one written statements and 62 written comments from States and international organizations were followed by 107 oral submissions (96 by States and 11 by international organizations). For States such as Nepal, Barbados, Sierra Leone, the Cook Islands, Micronesia, and others, this was the first time appearing before the Court. The active engagement by small island States and geographically disadvantaged States is likely because of the existential threats they face from climate change and sea level rise. This trend of increased participation is also visible in other forums, such as the International Tribunal for the Law of the Sea (ITLOS), where the 2022 request for the climate change advisory opinion was made by the Commission of Small Island States on Climate Change and International Law (COSIS).
This advisory opinion request was not only significant because of the number of States who participated but also in terms of the geographic representation of States. Since 1988, small island States have been at the vanguard of climate action, as Malta initiated the first UNGA resolution recognizing climate change as a common concern of humankind, followed by with the adoption of the Male Declaration on Global Warming and Sea Level Rise in 1989.
In addition, the participation by Pacific Island States in the proceedings through oral and written submissions was historic. Twelve out of the 18 Pacific Island States made written submissions, comprising over 20% of all written submissions made to the Court. This is in addition to concerted efforts of island States taken through intergovernmental organizations such as the Pacific Islands Forum Fisheries Agency, the Parties to the Nauru Agreement Office, the Melanesian Spearhead Group, COSIS, and the Alliance of Small Island States (AOSIS).
Beyond the Pacific, a number of coastal States, including Portugal, Saint Lucia and El Salvador, acknowledged their heightened vulnerability to the effects of climate change, likely driving their participation in the advisory proceedings. All regions of the world participated, from Africa, Latin America and the Caribbean (LAC), North America, and Europe, to the Pacific and Oceania.
Major themes
The science was clear and no State challenged the existence of climate change induced by human activity, or the urgency of addressing it. Even Saudi Arabia, a major oil-producing State, in its oral statement acknowledged “the urgency of taking action to mitigate the harmful effects of climate change.” There was also consensus on the existence of a number of principles of international environmental law, including the principles of precaution, no harm, prevention of transboundary harm, and the polluter-pays principle. Instead, disagreements arose over whether these principles applied to climate change and created obligations for climate change mitigation and accountability, triggering State responsibility in cases of non-compliance, – or fell outside the climate change regime, except for those specifically codified under the international climate regime, most notably the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC).
By the end of the first week of oral statements, a clear line of demarcation emerged between the developed and developing States on the question of the applicable law, and whether States’ obligations on climate action arise only from climate treaties (i.e. whether they are lex specialis), or also from other sources of international law, including core principles of environmental law. With certain exceptions, developed States, for example the US and Australia, argued that obligations of States were primarily governed by the specialized treaty regime on climate change, excluding all other sources such as customary international law.
Like the developed countries, China also espoused the lex specialis arguments, with an emphasis on CBDR. The applicability of CBDR was also one of the fault lines, as developing States argued it was a general principle. An interesting exchange took place as Singapore argued its applicability to historic emissions, evoking a response from Switzerland who stated it encompassed past, present, and future emissions.
The obligation of States regarding mitigation was also a core issue. Not surprisingly, the developed countries advocating for the Paris Agreement on climate change as the primary source of the applicable law took the position that the obligations of States on mitigation were procedural ones, and compliance with their nationally determined contributions (NDCs) would suffice. By contrast, the vast majority of States who came from the developing world, for example, Antigua and Barbuda and India, disagreed, arguing that other sources of international law, including customary law, applied.
A number of States also discussed the human rights implications of climate change, and the particular harms posed to especially vulnerable populations, such as persons living in poverty, those displaced by climate catastrophes, women, children, and those with disabilities. However, the extent to which existing international human rights law imposes obligations for climate action was contested. States such as the UK, Switzerland, Saudi Arabia, the US, and China rejected that such obligations arise from human rights treaties.
Palestine, breaking from a pattern of arguments, submitted on the need for the Court to take into account greenhouse gas (GHG) emissions from armed conflict and occupation, an issue that has largely been ignored in general.
Lastly, some States, like members of the Melanesian Spearhead Group and the Netherlands, brought the voice of youth to the hearings in the Great Hall. This was also an historic moment for the Court.
The Bench at the close of the hearings put four questions to the States and international organizations participating in the advisory proceedings: Judge Cleveland, on fossil fuels and domestic subsidies; Judge Tladi, on the effect of Vienna Convention of the Law of Treaties Art. 31(3) on the Paris Agreement; Judge Aurescu, on the content of the legal right to clean environment as a human right; and Judge Charlesworth, on legal consequence of declarations by States upon signature of the Paris Agreement and UNFCCC. Sixty-five written replies were submitted in the two weeks following the hearings, once again underscoring the enormous importance participants attach to the Court’s role in weighing in on climate change.
As the Court deliberates…
In the coming months, a great weight rests upon the shoulders of the 15 judges to respond both to the trust reposed in the ICJ by youth and to provide much-needed legal clarity on States’ obligations as the world continues to battle the planetary crisis created by climate change. Member States, policymakers, legal professionals, and numerous other stakeholders have high hopes for the advisory opinion, which, albeit non-binding, will carry significant weight and credence.
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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.
