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INTERNATIONAL JUSTICE: TWO WEEKS OF HEARINGS ON STATES’ RESPONSIBILITY FOR
CLIMATE CHANGE



6 min.
17/12/2024
Declaration by the Cook Islands at the Hague. © UN Photo/CIJ/Frank van Beek © UN
Photo/CIJ/Frank van Beek

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No fewer than 96 countries and 11 regional organizations took part in landmark
public hearings before the International Court of Justice (ICJ) from 2 to 13
December.

All presented their positions on the United Nations General Assembly’s request
for an advisory opinion on 29 March 2023, to clarify the “obligations of States
with regard to climate change” under international law.


VANUATU CONSIDERS THE FAILINGS OF PARTICULAR STATES TO BE “ILLICIT“

The hearings began on 2 December with a presentation by Vanuatu and the
Melanesian Spearhead Group (MSG), made up of Vanuatu, New Caledonia, the Solomon
Islands and Papua New Guinea. “The outcome of these historic proceedings will
have repercussions for generations to come, determining the fate of nations like
mine and the future of our planet,” said Ralph Regenvanu, Vanuatu’s special
envoy for climate change.

“Our delegation has just returned from the recent COP29 in Baku, where we once
again witnessed first-hand the failure of the process. It is inconceivable that
during this meeting no agreement was reached on reducing emissions”. Emissions
reached a record level in 2023, stressed Ralph Regenvanu.

Vanuatu, a Pacific island threatened by climate change, was the main instigator
of the UN General Assembly’s approach to the ICJ. “The failure of a handful of
high-emitting states to meet their obligations constitutes an internationally
wrongful act,” said Vanuatu Attorney General Arnold Kiel Loughman.

“Collectively, they have caused catastrophic damage (…). How can behaviour that
has brought humanity to the brink of the abyss, threatening the survival of
entire peoples, be lawful and devoid of consequences?”.


SMALL ISLAND STATES FACE THE THREAT OF “COMPLETE FLOODING.”

On 12 December, the Alliance of Small Island States (AOSIS) joined Vanuatu and
other island states, such as Grenada and the Cook Islands, in arguing that “in
this era of unprecedented and relentless sea-level rise, international law must
evolve to meet the climate crisis and the disproportionate effect that it has on
Small island developing States (SIDS)”.

AOSIS brings together 39 small islands and low-lying coastal developing states,
which are particularly hard hit by coastal erosion and rising sea levels. This
organization pointed out that 28 SIDS have made submissions to this Court, more
than one-quarter of all the submissions.

The Alliance asked the ICJ to acknowledge “the duty of co-operation as a general
principle of international environmental law”, including the provision of
technological and financial assistance; “the duty of States to recognize the
stability of maritime zones”; and to affirm the principle of the “continuity of
the State” in areas affected by climate change, “despite physical changes to or
complete inundation of a State’s land territory due to climate change-related
sea-level rise”. The aim is to maintain the existence of States, even if their
territory disappears.


BRAZIL STRESSES HISTORICAL AND DIFFERENTIATED RESPONSIBILITIES.

Brazil, which will host COP30 in 2025 in Belem, recalled the catastrophic
effects of climate change within its borders – severe droughts in the North,
massive rains and floods in the South, burning forests in the Amazon, Cerrado
and Pantanal.

Brazil highlighted the ambition of its new voluntary national contribution
(CNV). It aims to reduce emissions by 59% to 67% by 2035, compared with 2005
levels. This, despite Brazil being a “developing country”, ranked 89th on the
Human Development Index (HDI) and focused on poverty eradication.

The commitment of Brazil, reflected in its new nationally determined
contribution (NDC), extends far beyond what could be reasonably expected, based
on our historical responsibility for global temperature rise”, said Luiz Alberto
Figueiredo Machado, Special Envoy on Climate Change.

Brazil insisted on “historical responsibilities” for greenhouse gas emissions
and the principle of “common but differenciated responsabilities and respective
capacities” of states.

“Each nation must contribute to combatting climate change in proportion to its
social and economic capacities and historical role in global emissions (…).
Climate justice demands that the nations benefiting the most from historical
emissions that still deplete the global carbon budget must bear the greater
burden in addressing climate change.”


CHINA CALLS FOR COMPLIANCE WITH THE PARIS AGREEMENT WITHOUT NEW LAWS

China, one of the world’s largest emitters of greenhouse gases, expressed the
hope that the ICJ “will focus on the identification and clarification of lex
lata (current law), and refrain from the development and application of lex
ferenda (future law).”

China believes the United Nations Framework Convention on Climate Change, the
Kyoto Protocol and the Paris Agreement represent the legal basis for global
climate governance.

Like Brazil, China presents itself as a developing country and stresses the
principle of common but differentiated responsibilities between developed and
developing countries.

“Regarding the long-term temperature goal, the Paris Agreement sets a time frame
for global mitigation efforts, and recognizes that developing countries require
longer time frames for emissions peaking”, said Xinmin Ma, legal advisor at the
Ministry of Foreign Affairs. The objectives of the Paris Agreement “constitute
shared political commitments, not concrete legal obligations”.

Going further, “China submits that developed countries have an obligation to
bear their historical responsibilities. IPCC reports 80 reveal that historical
emissions from developed countries are the primary cause of the current climate
crisis and injustice”.


EXISTING TREATIES ARE NOT LEGALLY BINDING, ACCORDING TO THE USA.

As the second largest emitter of greenhouse gases, the United States has
acknowledged its responsibility. “The United States recognizes the climate
crisis as one of the gravest challenges humanity has ever faced (…) Addressing
it requires global action and cooperation by all States – and in particular, by
all major greenhouse gas emitters.”

Like China, the United States encourages the Court “to ensure that its opinion
preserves and promotes the centrality” of the UN treaty framework. These,
however, are not legally binding, according to the United States: “A party does
not breach the Agreement if it fails to achieve its NDC. This is clear from
Article 4.2’s description of each party’s NDC as something ‘that it intends to
achieve'”.

Furthermore, the US refutes the importance of differentiated responsibilities:
“I would like to emphasize that ‘common but differentiated responsibilities and
respective capabilities’ is not a fundamental principle of the Paris Agreement,
nor a principle of customary international law, nor a general principle of law”,
continued Margaret Taylor.

In conclusion, the USA argues that “the global climate crisis can be solved only
through international cooperation“.


EU PLEADS FOR THE ABSENCE OF “ESTABLISHED OR EVEN PROBABLE VIOLATIONS” BY STATES

Several European countries, including France, Germany, the Netherlands, Spain
and the UK, took part in the hearings. Denmark, Finland, Iceland, Norway and
Sweden made a joint presentation on 4 December.

André Bouquet, Legal Adviser and member of the Legal Service of the European
Commission, presented the European Union’s (EU) position in the following terms:
“First, the European Union recalls the inherently non-adversarial character of
the advisory opinion procedure before the Court. As such, there should be no
scope for findings of established, or even of probable, breaches by States or
groups of States.”

“Second, while the States’ views may differ on the existence and content of the
treaty and customary rules setting out certain obligations to address and combat
climate change, their views largely converge in recognizing the central role of
the United Nations Framework Convention and the Paris Agreement.”

The ICJ will deliver its non-binding advisory opinion in several months, but it
is expected to guide future international climate law.

 

Additional links: 

 * Verbatims of the hearings at the ICJ (in English)
 * The audiences on UN Web TV (in English)
 * International Court of Justice starts building historic opinion on climate
   change

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