On African, Caribbean and Pacific States’ submission to the ICJ – Indian Blog of International Law

Aditi Saxena

The submissions by the Organisation of African, Caribbean and Pacific States (hereafter OACPS), comprising 79 member states from Africa, Caribbean and Pacific regions, rest on the cornerstone of climate change being a global crisis riddled with climate injustice, colonial injustice and racial discrimination. It defines the obligations and legal consequences of the States to that end based on various international law instruments, including and beyond the climate regime.

Preliminarily, in its submission before the International Court of Justice (hereafter ‘ICJ’ or ‘Court’) OACPS emphasised that it is within the jurisdiction of the Court to give the Advisory Opinion (hereafter ‘AO’) as requested by the United Nations General Assembly (hereafter ‘UNGA’) and that there is no compelling reason for the Court to refrain from doing so. These proceedings, OACPS argued, satisfies the two conditions sought by Article 65 of the ICJ Statutes for the jurisdiction of ICJ to render an AO. Firstly, UNGA, which has requested for the AO, is an authorised body by the UN Charter as required. Secondly, this request qualifies as a ‘legal questions’ (para 12, 13, Written Submissions).

Scope of Questions (a) and (b)

Based on an established and robust scientific premise, OACPS interpreted the scope of the two questions before the Court as per the rules of treaty interpretation guided by Article 31 and 32 of the Vienna Convention on the Law of Treaties, as was explained by the Court in Kosovo advisory opinion. OACPS argued that Question (a) and (b) are clear and unambiguous and there was no reason for the Court to reformulate the scope of the question (para 56, Written Submissions).

On Question (a), OACPS relied on the Intergovernmental Panel on Climate Change (hereafter IPCC) Glossary for the purpose of definition of the key terms “greenhouse gases” and “anthropogenic emissions” (para 57, Written Submissions). OACPS interpreted the wording of the resolution through its preamble to argue that the Court is meant to examine obligations of the States beyond specific climate-related instruments such as the United Nations Framework Convention on Climate Change (hereafter UNFCCC), Kyoto Protocol or the Paris Agreement. The comprehensive examination, it argued, of ‘acts and omissions’ must be based on obligations under legal instruments listed in the resolution and principles of customary international law (para 59, 60, Written Submissions).

On Question (b), OACPS interpreted the legal consequences of obligations of the State to be based, firstly, on the obligations determined as the result of Question (a) and secondly, on the basis of acts and omissions of a State over time, in relation to activities that contribute to climate change and its adverse effects to the degree of significant harm to the climate system (para 141, 142, Written Submissions). It argued that not only that these acts and omissions are attributable to the relevant states (para 146, Written Submissions) and that OACPS States do not qualify the threshold of contributing ‘significant harm’. OACPS states, in fact, are affected disproportionately by climate change and is a Orwellian ‘new sacrifice zone’ (para 50, 51, Written Submissions).  

Obligations based on climate injustice, colonial injustice and racial discrimination

Based on the sources of international law as listed by the resolution OACPS argued for nine obligations of the States in the context of climate change, in response to Question (a). These obligations, OACPS argues, arise out of the adverse impact of climate change and through the conduct responsible for it. They are non-exhaustive yet relevant from the perspective of climate injustice, colonial injustice and racial discrimination (para 63, Written Submission).

The first obligation, OACPS argued, arises from the duty of the States to reduce the impact of climate change adversely on the principle of equal rights and self-determination — an essential principle of contemporary international law — which also appears in the UN Charter, is a fundamental right with broad scope of application, a jus cogens norm and emphasised as the right to existence within the the African Charter on Human and Peoples’ Rights (Art. 20(1)) (para 64-71, Written Submissions). The second obligation, OACPS argued, arises from the duty of the State to prevents acts of genocide pursuant to the Geneva Convention against at least two protected groups. OACPS argued that climate change poses existential risks to Small-Island national groups and people of African descent, disproportionately threatening their survival. It further relied on ICJ’s advisory in Bosnia and Herzegovina v. Serbia and Montenegro case that clarifies that the obligation to prevent genocide arises upon knowledge of a serious risk, irrespective of certainty (para 72-80, Written Submissions). The third obligation, OACPS argued, arises from the States obligation to eliminate racial and gender discrimination through neutral policies and affirmative measures. It argued that the disproportionate effect of climate change on groups and individuals based on gender and race violates prohibitions against racial and gender discrimination under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (para 81-90, Written Submissions).

Duty to Cooperate in Good Faith, OACPS argued, is the fourth obligation under the UN Charter. This obligation extends to cooperation between states on anthropogenic GHG emissions as well as production of fossil fuels, and requires States to engage meaningfully and achieve a specific result as can be inferred from the Court’s advisory opinion in Legality of the Threat or Use of Nuclear Weapons (para 91-95, Written Submissions). Fifth obligation, OACPS argued, arises from the States’ duty to exercise due diligence as a corollary of the territorial sovereignty within the realm of international law and international relations alike. This duty requires States to adopt a precautionary approach and regulate emissions, enforce environmental standards and ensure private actors adhere to international commitments (para 96-100, Written Submissions). Sixth obligation to prevent significant harm to environment, OACPS argued, is grounded in existential threat to humanity as a whole, with most hardship on people made vulnerable due to historical crimes such as slavery and colonialism. This obligation, however OACPS argued, is not an obligation of result but an obligation of conduct, is recognized as a rule of customary international law and applies to climate system as a whole based on definitions under UNFCCC and IPCC (para 101-104, Written Submissions).

Duty to protect and preserve the marine environment, OACPS argued, is the seventh obligation, which entails a positive obligation of protect and preserve and a negative obligation to not degrade it. This duty is explicitly codified under Article 92 of the UN Convention on the Law of the Sea and is recognized as the customary international law para 105-111, Written Submissions). The eighth obligation, OACPS argued, arises from the obligation of the States to respect, protect and fulfil human rights with respect to climate change, within its territory as well as outside if the victim of the source of harm is under its effective control. The OACPS contended that climate change adversely impacts the fundamental human rights, including the rights to life, health, food and water, as protected under the The Universal Declaration of Human Rights (hereafter UDHR), International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). While the UDHR conceives these rights as universal, indivisible, interdependent and interrelated, OACPS argued that in context of environmental protection as well, the jurisdiction of these rights also covers persons outside the State’s territory and impacted by State’s conduct (para 112-128, Written Submissions). As the ninth and last obligation, OACPS argued, it arises directly from the UN climate regime including the UNFCC, the Convention on Biological Diversity, the UN Convention to Combat Desertification, Paris Agreement and other instruments adopted by the UN or its regional economic missions (para 129-137, Written Submissions).

Wrongful Act and Aggravated Responsibility

OACPS identified that specific States have done wrongful act within the international customary law under ILC Draft Articles on Responsibility of States for Internationally Wrongful Act (hereafter ARSIWA). This occurs by their acts as well as omissions including performance of activities that result in substantial GHG emission, government subsidies to fossil fuel, favouring activities contributing to greenhouse emissions through laws and policies and failing to prevent activities that cause significant harm to climate system and other parts of environment.

OACPS argued that the breach of obligations as identified in Question (a) were at all relevant times governed by international law within the meaning of Article 15 of ARSIWA. To that end, firstly, the duty to due diligence existed and was recognised as the duty for States in 19^th century, binding States to exercise it. Secondly, OACPS argued more specifically, that this duty in the context of environment protection was reaffirmed in the Trail Smelter case in 1941 (para 149, Written Submissions). Thirdly, since 1945, the States are under obligation to respect human rights under various international human rights treaties such as UDHR. In this context, OACPS argued, the Court need not establish the definite timeframe for binding obligations for the purpose of Article 15 of ARSIWA. It argued that as long as the relevant obligations emerged or became binding on specific state before or after the series of acts and omissions constituting the act was unfolding, such obligations govern the conduct (para 153, Written Submissions).

Legal consequences arising from this conduct in breach under Article 30 and 31 of ARSIWA, OACPS argued, are two-fold. The States in breach must cease the act (para 163, Written Submissions) by immediately adopting measures to achieve deep cuts of their anthropogenic GHG emissions and by way of reparation, achieve restitution by adopting restorative measures to the climate system and parts of the environment which has been damaged by the emissions of greenhouse gases and the failure to exercise due diligence (par 176, Written Submissions). Finally, OACPS argued, legal consequences in this matter trigger the application of the regime of aggravated responsibility against violations of jus cogens and erga omnes obligations by these States (Para 191, Written Submissions).

In conclusion, the submissions of OACPS emphasised on the establishing the obligations and legal consequences of the specific states and aim at removing the structural injustice and inequity in the global system that, OACPS argued, has even further entrenched historical crimes such as slavery, colonialism and racial discrimination.

(Aditi Saxena is a lawyer from India and currently, a German Chancellor Fellow of Alexander von Humboldt Foundation with European Centre for Constitutional and Human Rights, Berlin.)