International courts impel advisory climate action
The quarters concerned with climate change are aware that since December 2, 2024, the world is witnessing oral hearings on climate change and state responsibility at the International Court of Justice (ICJ) at The Hague. More than 100 states and international organisations (IOs) will participate in the process. China and the US as the two largest global emitters will also attend the pleadings. This is perhaps the most attended hearing ever in the ICJ's history. The historic resolution adopted by consensus at the UN General Assembly (UNGA) on March 29, 2023, requested the ICJ to deliver its Advisory Opinion (AO) on climate change. Then the ICJ president set the deadline for states and IOs to make written submissions by March 22, 2024. The deadline to respond to written submissions was extended till August 15, 2024.
Vanuatu as a Pacific Small Island Developing State (SIDS) requested the UNGA for the AO. We may recall that Vanuatu was among a few SIDSs which maintained the reservation to approach alternative forums other than the UNFCCC process before ratifying the UNFCCC. As the SIDS are "nano-emitters" in real sense, they are likely to face "watery death" due to rapid sea level rise engendered by an ever-warming world. Developed countries, as historically the largest emitters, are mainly responsible for this. The hearings come at a time when the impacts of climate change are more evident than ever. But the just-concluded COP29 achieved a lackluster outcome, particularly in mitigation, transitioning away from fossil fuels and climate finance.
For all latest news, follow The Daily Star's Google News channel. In response to such "active inaction," as I started calling the COPs years ago, 62 countries including Bangladesh have made written submissions and more than 90 comments have been recorded.
The Paris Agreement (PA), though, has an Article 8 on Loss and Damage, the decision text of the PA forecloses any step for liability and compensation under it. Then why did the developing countries accept such a provision? I have argued elsewhere that IPCC science has established "general causation" for the ever-increasing fever of our planet, liability and compensation through courts warrant "specific" causation that can link climate events to consequences. But it is still not possible to link specific climate events to specific consequences, as attribution science is not perfect yet. Under the PA, country-parties cannot go to court for litigation and seek for compensation. So, countries from both sides have agreed to go for negotiated settlements in loss and damage under Article 8 of the PA. But totally inadequate mitigation by major emitters is failing to curtail the rising harm and the antecedent depositions are making the climate system increasingly unstable, causing unprecedented impacts.
During the last two days, many countries from both the Global North and South have attended the hearings. There is a clear divide on perspectives. Developing countries have been stressing on climate science, violation of development and human rights from climate change, controlling harm through ambitious mitigation, due diligence, equity and climate justice, etc. Against this, developed countries have been arguing for limiting discussions on climate change within the UNFCCC process, restricting human rights in relation to climate change amongst other issues.
On December 2, Bangladesh participated in the hearings. Its main arguments, in line with other climate-vulnerable countries, stressed the importance of climate change-human rights nexus, highlighting that unendurable impacts will increasingly worsen in the coming years. The oral submission pointed out the need to clarify state obligations due to the slow progress of the climate negotiations. They rightly pointed out that to remedy harm, the applicable law that the court needs to consider must go beyond the climate regime, to clarify the secondary and primary obligations that states have in relation to adaptation and keeping in mind the principles of equity and differentiated responsibility.
We may cite the first AO given a few months ago by the International Tribunal of the Law of the Sea (ITLOS) under the UN Convention on the Law of the Sea (UNCLOS). On May 21, 2024, the first ground-breaking AO on the specific obligations of states to climate change was issued by the ITLOS, which provided interpretations of the UNCLOS' role on ambitious climate action. The request for the ITLOS AO was brought by the Commission of Small Island States (COSIS), that represent the SIDS of both the Pacific and Atlantic regions. COSIS came into being immediately after COP26 held in Glasgow, when SIDS joined forces to solicit AOs on international legal obligations to prevent climate change. ITLOS was requested for clear interpretations on the specific obligations of parties to UNCLOS arising from Article 192 to protect and preserve the marine environment and their obligations under Article 194 to "prevent, reduce and control" marine pollution. ITLOS AO detailed out the links between UNFCCC and UNCLOS, arguing that under UNCLOS, countries must reduce GHG emissions to protect the marine environment and its resources.
This ruling is the first from an international tribunal about state obligations regarding climate change mitigation. It also emphasised that Article 194.1 of UNCLOS imposes a duty of care and due diligence on states in combating climate change, focusing particularly on marine environments.
The ITLOS' AO is expected to influence legal opinions and significantly impact the international regimes regarding climate-related obligations. It reinforces the scientific consensus on climate change and underscores the urgent need for states to phase out fossil fuels to protect our oceans. The ITLOS' AO is the first of three advisory opinions, the other two to be issued after due process including by the ongoing ICJ proceedings and the third AO is expected from the Inter-American Court of Human Rights (IACHR), initiated by Chile and Colombia in March 2023.
The mission of all these AOs is to seek explication of the state obligations under related legal regimes toward climate change. While the legal nature of AOs is non-binding, it provides authoritative interpretations of obligations under global regimes. Positive AOs from the ICJ and IACHRs will surely galvanise global public opinion to impel speedier actions, and the global youth is likely to capitalise on the outcomes for pressurising their politicians to act and not just talk in the COP jamborees. Reports suggest that such AOs are being sought by countries and CSOs in other regional courts including the African Court of Human Rights. The more such AOs from global and regional courts, the better for the countries and communities facing existential threats from the runaway climate change.
Mizan R Khan is a board member at Scientific Council of COP29 Presidency, visiting scholar at Brown University, and technical lead at LDC Universities Consortium on Climate Change (LUCCC).
Views expressed in this article are the author's own.
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