By Marjorie Cohn
The International Court of Justice (ICJ) has just completed hearings on the climate crisis in a case that could have critical consequences for the survival of future generations. From 02-13 December, more than 100 states and organisations argued before the ICJ in landmark litigation that began five years ago when Pacific Islander law students initiated a grassroots movement that persuaded the UN General Assembly to request an advisory opinion from the ICJ.
“In The Hague, most of which lies below sea level, this has been a momentous two weeks,” environmental attorney Richard Harvey, who works for Greenpeace International and attended the historic proceedings, told Truthout. “The Cold War divided the world into East and West but climate change divides it into North and South: corporate petrostates against the Small Island Developing States and the rest.”
“Never before have the U.S, Russia, China, UK, Saudi Arabia, Kuwait and OPEC [the Organisation of the Petroleum Exporting Countries] lined up so explicitly against those who suffer the most from their greed,” Harvey said. “Corporate petrostates shamelessly asserted that peoples’ rights to self-determination, to life and to a clean, healthy and sustainable environment are, in essence, trumped by their right to fossil fuel profits.”
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On 29 March, 2023, the General Assembly adopted Resolution 77/276 that recognised “climate change is an unprecedented challenge of civilisational proportions and that the well-being of present and future generations of humankind depends on our immediate and urgent response to it.” The resolution directed the ICJ to render an advisory opinion on: The obligations of States under international law to protect the climate system and other parts of the environment from anthropogenic [caused by humans] emissions of greenhouse gases, now and in the future. The legal consequences for States that fail to do this and cause significant harm to present and future generations and other States (particularly small island developing States affected by adverse effects of climate change).
The campaign in the General Assembly was spearheaded by Vanuatu, a constellation of 83 small islands in the South Pacific and one of the states most vulnerable to climate change. The measure that was introduced by Vanuatu and co-sponsored by over 130 states took aim at the primary emitters of fossil fuels, of which the United States is the leading culprit.
“Today, we find ourselves on the frontlines of a crisis we did not create ⎯ a crisis that threatens our very existence and that of so many other peoples who have come in unprecedented numbers to be heard by this Court,” Ralph Regenvanu, Vanuatu’s special envoy for climate change and environment, told the 15 judges. “The outcome of these proceedings will reverberate across generations, determining the fate of nations like mine and the future of our planet.”
The Climate Crisis Is “Existential” for Many Developing Countries
Many states, including Tuvalu, characterized the climate crisis as “existential.” Despite producing less than 0.01 percent of greenhouse gas emissions, Tuvalu is on a trajectory to be the first country completely lost to rising sea levels due to climate change. The Solomon Islands have already lost five islands and others face severe erosion. Several states cited extreme weather events, many quite recent, that have had disastrous consequences for their people.
“The cost of fossil fuel subsidies from States reached an all-time high of US$7 trillion in 2022,” more than 23 times the amount that developing countries strived to secure for climate finance at the recent COP29.
Elizabeth Exposto, chief of staff to the prime minister of Timor-Leste, which is acutely vulnerable to climate change, said, “The climate crisis that we face today is the result of the historical and ongoing actions of industrialised nations, which have reaped the benefits of rapid economic growth, powered by colonial exploitation and carbon-intensive industries and practices.” She also noted, “These nations, representing only a fraction of the global population, are overwhelmingly responsible for the climate crisis, and yet, the impacts of climate change do not respect borders.”
But Margaret Taylor, legal adviser to the U.S Department of State, dismissed the idea that the worst offenders were most responsible for taking actions to remedy the harm they are causing to the developing states. She asserted that, “States’ current obligations in respect of mitigating greenhouse gas emissions do not vary based on differentiation between categories of States, such as those characterised as ‘developed’ and ‘developing.’”
Like other major emitting states, Russia contended that the 1.5 degrees centigrade temperature limit in the Paris agreement is not legally binding, international responsibility is only triggered at the moment the climate treaties came into force for each state, causation by a single state is impossible to prove, and the primary emitters are not responsible for harm that future generations will suffer.
Even though Palestine is responsible for less than 0.01 percent of global emissions, it suffers severe climate impacts that are intensified by Israel’s illegal occupation. It has led to “the violation of the Palestinian people’s inalienable right to control its territory, to have sovereignty over its resources and to be in command of its climate policies,” Ambassador Ammar Hijazi, permanent representative of the State of Palestine to International Organisations in the Netherlands, told the court.
Palestine’s representatives raised the significant linkage between occupation, militarism and climate justice. “Climate scientists have determined that the ongoing war in the Gaza Strip was responsible for emission of between 420,000 and 650,000 tonnes of carbon dioxide and other greenhouse gases in just the first 120 days, which is the period for which there is published data,” Kate Mackintosh argued for Palestine. “This is equivalent to the total annual emissions of 26 of the lowest-emitting States.”
“Although the occupying Power has a legal obligation to protect the environment and to conserve the natural resources of the occupied territory for the benefit of the protected population, this obligation is often violated, as the Court has already concluded in relation to Israel’s occupation of Palestine,” Mackintosh added. She was referring to the ICJ’s advisory opinion issued in July which concluded that Israel’s occupation of Palestinian territory is illegal.
Representatives from the Dominican Republic said that damages from climate change violate the fundamental right to survival — a right recognised by the ICJ in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons.
The Risks of Greenhouse Gas Emissions Have Been Known Since at Least the 1960s
Regenvanu from Vanuatu emphasised that “the unprecedented risks created by anthropogenic greenhouse gas emissions have been known since at least the 1960s,” citing an address by U.S President Lyndon Johnson in 1965: “This generation has altered the composition of the atmosphere on a global scale through radioactive materials and a steady increase in carbon dioxide from the burning of fossil fuels.”
Referring to the Conference of the Parties to the UN Framework Convention on Climate Change (UNFCCC), Regenvanu noted, “For many peoples, including in Vanuatu, the prolonged and systematic failure of the COP process has cost them their well-being, their cultures and even their lives. There is an urgent need for a collective response to climate change grounded not in political convenience but in international law.”
Jorge Viñuales from the Melanesian Spearhead Group stated that emissions of greenhouse gases have increased more than 50 percent since 1990. He cited a report by the International Monetary Fund that “the cost of fossil fuel subsidies from States reached an all-time high of US$7 trillion in 2022,” more than 23 times the amount that developing countries strived to secure for climate finance at the recent COP29.
Fossil fuels account for 80 percent of global primary energy. Nearly 80 percent of historical greenhouse gases have come from the Group of 20 (G20), while developing countries contributed only 4 percent.
In its directive to the ICJ for an advisory opinion, the General Assembly resolution referenced several relevant treaties, including the UN Charter; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; UNFCCC; the Paris Climate Agreement; the UN Convention on the Law of the Sea; the duty of due diligence; the Universal Declaration of Human Rights; the principle of prevention of significant harm to the environment; and the duty to protect and preserve the marine environment.
The Leading Greenhouse Gas Emitters Tried to Narrow Climate Change Law
Nevertheless, the leading greenhouse gas-emitting states argued that their international legal obligations did not go beyond those set forth in the UNFCCC and Paris agreement, an international treaty on climate change adopted by 196 Parties at the UN Climate Change Conference (COP21) in 2015 and entered into force in 2016.
But the overwhelming majority of states told the court that international law governing climate change also includes customary international law and human rights law.
“As the majority of the submissions have highlighted, for islands like Samoa, climate change is more than an environmental issue,” Peseta Noumea Simi, chief executive officer in Samoa’s Ministry of Foreign Affairs and Trade, said. “It is a health, food security, economic, social, cultural, human rights and security concern. As large ocean States, it fundamentally affects our ability to draw sustenance from the pristine oceans and seas that surround us.”
The Solomon Islands called for international legal protection for refugees displaced by climate change under international refugee law.
Some, like Ecuador, maintained that states which have significantly harmed the climate system, including harm caused by private contractors under its jurisdiction, must also be held accountable.
The Union of Comoros argued that breaches of the legal obligations owed to the international community as a whole (erga omnes) require reparations, including cessation of illegal acts, compensation for damage and loss, and financial support. Many of the states agreed that reparations must be paid, including restitution, compensation and satisfaction (for moral damages such as mental and emotional suffering). Some, including the African Union, mentioned debt cancellation (or at least debt relief) and structural reparation. Vietnam, which continues to suffer the effects of the U.S. military’s spraying of Agent Orange during the Vietnam War, suggested restorative measures for the national environment.
A Favourable Advisory Opinion from the ICJ Would Carry Great Moral Weight
During his first term, President Donald Trump withdrew the U.S from the Paris agreement. President Joe Biden then rejoined the treaty in 2021. Now, Trump is preparing once again to leave the Paris agreement and has promised to increase fossil-fuel production.
Although an advisory opinion from the ICJ is not legally binding, it carries great moral weight. It could help climate activists hold polluting states accountable by providing legal support for climate litigation against their governments. Politicians could cite it to support the imposition of sanctions against states that fail to comply with their legal obligations. And diplomats could use it as a minimum standard in the next global climate change negotiations.
“The ICJ’s opinion will be published in 2025, just as the court celebrates its 80th birthday,” Harvey told Truthout. “I sincerely hope our colleagues threatened by rising sea levels, unbreathable air and deadly temperature increases will find its opinion a cause for celebration.”
On the last day of the hearings, Vishal Prasad, director of Pacific Islands Students Fighting Climate Change, presented the ICJ with the “People’s Petition: A Collective Climate Justice Call for the ICJ,” which quoted a young woman from the Micronesian island of Kiribati: “The ocean, once a nurturing mother, has become a vengeful giant, swallowing the land it once cradled. It no longer only gives life — it now takes it, inch by inch. Where it once offered sustenance, it now brings destruction, its rising tides a cold and unrelenting force that pulls homes, cultures, and futures into its depths.”
Prasad invoked the memory of his ancestors, who were guided across the Pacific islands by the stars, telling the judges: “Just as the wayfinders of the Pacific held the wisdom to guide us through the vast ocean to safe harbour, you hold the knowledge and the responsibility to guide the international community to ensure the protection of our collective future. And you can do this simply by applying international law to the conduct responsible for climate change.”
Indeed, Vanuatu’s Regenvanu told the ICJ, “Let us not allow future generations to look back and wonder why the cause of their doom was condoned.”
