The International Court of Justice building in The Hague. International Court of Justice: Are States Responsible for Climate Change? Climate and Environment
96 countries and 11 regional organizations took part in the historic public hearings that took place at the International Court of Justice from December 2 to 13. Recall that the UN General Assembly asked the Court to clarify “the obligations of States with respect to climate change” under international law.
The relevant resolution of the UN General Assembly was adopted on March 29, 2023. The document provides for a request for an advisory opinion on the legal obligations of states to protect the climate system and reduce greenhouse gas emissions. In addition, it concerns the legal consequences for states that have caused significant damage to the environment, especially in the context of the consequences for vulnerable small island developing states, as well as for future generations across the planet.
Small Island States: The Fight for Survival
The hearings opened on December 2 with a presentation by Vanuatu and the Melanesian Spearhead Group, which includes Vanuatu, New Caledonia, Solomon Islands and Papua New Guinea. “The outcome of this historic case will have implications for future generations and will determine the fate of countries 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 COP29 Climate Conference in Baku, where we once again witnessed the failure of all efforts. It is inconceivable that this meeting failed to reach an agreement on emissions reductions.”
Vanuatu, a Pacific island threatened by climate change, was a leading sponsor of the UN General Assembly’s referral to the International Court of Justice. “The failure of a handful of high-emitting states to comply with their obligations constitutes an internationally wrongful act,” Vanuatu Attorney General Arnold Keel Loughman said.
“Collectively, their actions have caused catastrophic damage [to the planet],” he said. “How can conduct that has driven humanity to the brink of destruction, threatening the survival of entire nations, be legal and without consequences??”
The threat of ‘total inundation’
On December 12, the Alliance of Small Island States joined Vanuatu and other island states such as Grenada and the Cook Islands. “In this era of unprecedented and inexorable sea level rise, international law must confront the climate crisis and the disproportionate impact it is having on small island developing States,” the Alliance said.
States have asked the International Court of Justice to uphold the principle of “state continuity” in areas affected by climate change. It is about preserving states even if their territory disappears as a result of total flooding.
Brazil: differentiated responsibilities
Brazil, which will host the 30th UN Climate Change Conference in Belém (COP-30) in 2025, recalled the catastrophic consequences 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 insists on “historical responsibility” for greenhouse gas emissions and the principle of “common but differentiated responsibility” of states.
China urges no new laws
China, one of the world’s largest greenhouse gas emitters, expressed hope that the International Court of Justice “will focus on identifying and clarifying the lex lata (existing law) and refrain from developing and applying the lex ferenda (future law).”
China believes that the United Nations Framework Convention on Climate Change, the Kyoto Protocol and the Paris Agreement constitute the legal basis for global climate governance.
US: Existing treaties not legally binding binding
As the second-largest emitter of greenhouse gases, the United States has acknowledged its responsibility. Like China, the United States has called on the Court to preserve the central role of the UN treaty framework, but recalls that existing treaties are not legally binding. The United States also rejects the importance of differentiated responsibilities.
The Court’s Opinion
The International Court of Justice will deliver its advisory opinion in a few months. It will not be legally binding, but is expected to influence future international climate law.