Chhaya Bhardwaj
The ICJ’s Advisory Opinion on Climate Change appears to be one of those few beacons of hope that continue to strengthen the international climate rule of law. To celebrate and echo the advisory, twelve scholars came together for this “Symposium on ICJ’s Advisory Opinion on Climate Change”. This symposium is a reflection of the unanimity of the Judges on several legal principles, along with several refractions in their separate opinions and declarations. The scholarly work for this symposium touched upon conventional and customary climate obligations of States as interpreted by the ICJ. This includes climate obligations under international agreements like UNFCCC, Kyoto, Paris Agreement, Human Rights Treaties, UNCLOS, CBD and UNCCD amongst others. The symposium also discusses the applicability of customary international law principles like the duty to prevent a significant transboundary harm, duty to cooperate, due diligence obligations specifically concerning fossil fuels, principles of lex specialis, and state responsibility, causation and attribution in the light of common but differentiated responsibility based on respective capabilities. This symposium invites deeper academic discussion about the various aspects of the ICJ’s advisory in the future.
With this final post, we conclude the symposium. Through the preceding posts of the symposium, we expressed our collective appreciation, albeit critically, for the affirmation by the Court that States have an obligation to reduce greenhouse gas (GHG) emissions with an objective to maintain the global temperatures well within 1.5 to 2 degree celsius range.
In this concluding post, I firstly demonstrate that the ICJ advisory opinion concerning the obligation of States to reduce GHG emissions is common sense knowledge that the international community had known for a long time, but that this recital was still necessary. Secondly, I argue that small island developing states (SIDS) needed this advisory so that they could receive just treatment as “specially affected States”, however, the advisory did not interpret the existing rules of international law to indicate additional responsibilities of States towards SIDS and other “specially affected States”.
Specific law and legal obligations of States to mitigate climate change
When the ICJ analysed the issue concerning obligations of States to protect climate systems, it looked into the “act and omissions” of a State that can cause significant harm to the global climate systems and other parts of the environment. Based on the submissions by the States, International Organizations, and existing treaties on climate change, the Court naturally linked the issue of protection of the global climate to reduction of GHG emissions; and acts and omissions to human activities causing GHG emissions.
More specifically, the ICJ recapitulated obligations set forth under the existing climate treaties, like the United Nations Framework Convention on Climate Change (UNFCCC), and the Paris Agreement; the Human Rights Treaties and the United Nations Convention on the Law of the Sea, while linking them to customary and general principles of international law (para 475). The obligation of States to take measures to mitigate GHG emissions, while acting due diligently and according to their common but differentiated responsibilities and respective capabilities (CBRD-RC), should be done with the single objective of keeping the global temperature from rising beyond 1.5 degrees celsius. The measures taken by States should be reflected in the submission of their Nationally Determined Contributions (NDCs), demonstrating progressive commitments by the States, while cooperating with other States to prevent a significant harm to the environment that is being currently caused by the GHG emissions.
Common sense knowledge repeated by the ICJ
The fact that global GHG emissions need reduction, was known as a scientific and legal fact since 1992, when UNFCCC was adopted. The UNFCCC set forth legal obligations to reduce GHG emissions because they are dangerous to the climate systems and the environment. However, over three decades later, the global community still needed clarifications on what needs to be done to protect climate systems. Moreover, regardless of the knowledge, several States’ submissions can be characterised as a state of stupefaction– meaning complete oblivion to the adverse effects of climate change and their own climate obligations. The global community has known for several decades now that States need to replace the carbon-intensive development model with a clean energy developmental model so that GHG emissions are reduced. This knowledge was converted into common sense long before the SIDS approached the ICJ for precision, vivification and re-emphasis on this common knowledge.
But if it was common sense knowledge, why did we even need the ICJ advisory in the first place? I want to highlight three reasons why the SIDS approached the ICJ. Firstly, the voices of the SIDS were continuously negated and their needs not taken into account during treaty negotiations and global decision-making. For example, the SIDS proposed the Loss and Damage mechanism for their protection in 1992 itself, but the more dominant voices and needs succeeded. Secondly, SIDS are at the frontline of damages occurring from climate change, as it poses an existential threat to them. This means the SIDS are the most vulnerable group to climate change, and face the most significant challenge due to global GHG emissions. However, their voices continue to be the most insignificant. No matter the quantity and quality of actions SIDS take, it wouldn’t change anything for them, because the solution needs to come from big emitters. Through this advisory, the SIDS found a platform to voice their needs and seek remedies so that they can survive. The third reason, also reflected in the advisory proceedings before the ICJ in the submissions by the States, is the differential understanding and interpretation of responsibilities of States. All the top 10 emitting States characterise their obligations to reduce GHG emissions differently and do not have an agreement. The top 10 most affected States (SIDS) largely resonate with each other in terms of what they need and what the world needs to do, as they face significant challenges due to the harm to the atmosphere and climate systems. This means those who need to act have individualised understanding of what they think they need to do to protect the climate systems and do not agree with the reality of what they actually need to do, or even that they should do anything.
SIDS obligations to mitigate and adapt along with other States
The States are under an obligation to reduce their net GHG emissions with an objective to ensure that the global temperature rise does not exceed the 1.5 degree celsius. This scientific and legal mandate applies to all States equally and without discrimination. Although in some cases, historically high emitters have a larger role to play in a case-by-case analysis and may have differing obligations from that of developing or least developed countries (para 247). This means, SIDS’ responsibility to mitigate is different from the responsibility of high emitting States, as high emitting States are “contributing more” and can be characterized as “special contributors”.
This common sense clarification by the Court is not groundbreaking or state-of-the-art. The States and the scientific community have known this fact for a while now (at least since 1992). States who are actually emitting GHGs are “special contributors” and do not care about common sense of shared responsibility. States who are not emitting GHGs are “specially affected” secluded sufferers, sidelined as a consequence of power-relations in international law. Some States have emitted more and profited more from GHG emissions due to their carbon-intensive development plans and economic structures. This historical fact has always put developed countries in a different (or special) category than developing or least developed countries for the purposes of responsibility to mitigate.
The activities emitting GHGs are those activities that are justified as “necessary evil”, or activities for the happiness of the maximum even though troublesome for a handful; activities that will bring in money; and activities that make people’s lives developed and better. The most vulnerable States & their people who are affected disproportionately are those who did not participate in a carbon-intensive global development or did not decide for themselves that they wanted a carbon-intensive model. The vulnerabilities of States like SIDS puts them in a significantly dangerous situation, which is detrimental to their existence, and make them “specially affected States” in the context of climate change- an antonym to “special contributors” in the context of climate change.
In the AO the ICJ clarifies that although some States like the SIDS are “specially affected” or “vulnerable”- facing significant challenges and dangerous of the anthropogenic climate change; these States cannot be treated as “specially affected” under the rules of international law because “[A]pplication of rules on State responsibility under customary international law does not differ depending on the category or status of an injured State” (page 2). This is where the advisory is short on responsibility of States for “special contributors” and for “special affected”.
The advisory confirms that all States have a duty to mitigate, because all States in one way or the other contribute to the risk of climate change caused by the GHG emissions. This implies all States in one way or another engage in activities that cause GHG emissions, and no State is a 100 percent GHG emission free State. The contribution to the risk of climate change and global warming is significantly different due to differing degrees to emission contributions, and hence, under the common but differentiated responsibility, each State has a differing obligation to reduce GHG emission, depending on its respective situation and national circumstances. This is a fair and common sense enunciation of the duty to mitigate climate change, which is different for “special contributors” and for SIDS which have almost negligible GHG contribution.
The ICJ also stated that under existing customary international law, “specially affected” or “particularly vulnerable” States “are in principle entitled to the same remedies as other injured States” (para 109). This is where the shortcoming lies. The Court did not delve deeper into the question of vulnerabilities of SIDS or other States citing that “these matters do not fall within the scope of question” (para 110). The Court shied away from giving any shape or detailed understanding about “particularly vulnerable” States, and the remedies available to them under customary international law, or under the primary treaties governing the issue. Judge Xue, highlights in her separate opinion, that existing rules of state responsibility are not sufficient to accommodate the special needs of vulnerable countries like SIDS (para 76), thus leaving them behind in a disproportionate state. This represents a huge gap for SIDS and least developed countries, which according to Judge Xue, leads to an acute dilemma for States like SIDS, which are constantly trying to deal with the adverse effects of climate, eradicate poverty, mitigate GHG emissions and simultaneously develop.
The limitation of the nature and scope of the question before the Court
The ICJ did look into the question of responsibility of States who cause harm by emitting GHGs to the special category of “particularly vulnerable” States. When answering these questions, the ICJ did not answer it from the lens of rights of particularly vulnerable (rights and remedies of injured States), or from the lens of responsibility of the State towards “specially affected” States. From the point of view of vulnerability, vulnerable groups should be treated differently, and current rules of responsibility of States are not sufficiently inclusive of allowing more justiciable treatment to these vulnerable States.
The separate opinion of J. Charlesworth dives into the issue of vulnerability, but it seems to be focused more on vulnerability of people—which is a human rights law issue, instead of vulnerability of States—which is not a human rights law issue in international law. She explained that the States may have a legal obligation under international human right law to protect climate vulnerable groups- who are humans. Again, even this separate opinion does not look into the issue of climate vulnerable States which cannot be covered under international human rights law.
There have been Special Categories of States in Climate Treaties since inception
The ICJ’s justification for not engaging deeply with the issue of the rights and remedies available with the “specially vulnerable” or “particularly vulnerable” States is two fold. First being the nature and scope of the questions asked to the court, and second the application of existing customary international law rules which apply equally on all States. The Court, however, does not talk about the special category of particularly vulnerable State from a Conventional perspective.
The UNFCCC was established with keeping categories in mind, with special duties for States. For example, UNFCCC Article 4 language reads “The developed country Parties and other Parties included in Annex I commit themselves specifically as provided for in the following”. This language underscores the relevance of categories in international climate law treaties, with special duties given to the developed Annex 1 countries. It seems like under the foundational principles of both international climate treaties and principles of State responsibility, duties of developed countries and high emitting countries were always considered in detail, with more specific outlines.
At the same time, the UNFCCC also sets forth provisions recognising the special category of particularly vulnerable groups under UNFCCC Article 3 (Principles). The provision states that “[T]he specific needs and special circumstances of developing country Parties, especially those that are particularly vulnerable to the adverse effects of climate change…[s]hould be given full consideration.” The UNFCCC confirms the special category of particularly vulnerable States under its treaty rules, however, does not include any provisions that could operationalise this special category. In 1991, during the making of the UNFCCC, particularly vulnerable States had proposed inclusion of operational aspects of the rights of special category States and the specific obligations of the duty bearing States, under the loss and damage scheme, also then known as the insurance scheme. However, the special remedies for this category did not materialise or become a law because all the States could not agree to special categories receiving relief.
In the Paris Agreement (2015), however, the issue of particularly vulnerable States and the remedies available to them became the focal point even before 2015, so that under a Loss & Damage mechanism, these special category States can claim their rights as particularly vulnerable and specially affected States. The mechanism will still be nuanced with most States claiming to be particularly vulnerable, because of the political nature of the conceptualisation of the concept.
Given the history of the relationship between rights of particularly vulnerable States and the duties of the high carbon emitting States, it seems like there was almost nothing that bridged the rights with the duties under the circumstances of climate change. The ICJ advisory may allow building of this bridge, however, in the positional choice of the ICJ to not elaborate on any special rights for the especially vulnerable States, is a continuing historical positionality in international law, traced back to 1990-1992, when the States refused loss and damage mechanism in the UNFCCC to the SIDS. The ICJ chose not to progressively interpret the law in this regard, and indirectly taking the position of the States that have long kept the specially affected States from remedies under the treaty system.
Vicious cycle of vulnerability and development
The State of Bahamas in its verbal submissions to the ICJ, highlighted the vicious cycle of climate vulnerability that has taken over the State as a routine, and has been keeping them away from how the world understands development in the modern world. They stated that “we see it as a revolving door of preparation, impact and recovery — and then we reset that cycle, we prepare again, we have an impact, and then we recover again” (para 21, page 55). Similarly, Dominica submitted that they are trapped in “recovery and reconstruction and debt incurrence and that cycle continues” (para 14, page 53). They further added that “(i)t is no small feat to rebuild your home and life after hurricanes and recover from the constant onslaught of adverse climate conditions and have to prepare again and again every year for this uncontrollable threat” (para 19, page 58).
The ICJ does not specifically provide a relief for this vicious cycle disaster, debt and recovery that traps several SIDS and least developed countries into consideration, even though it recognizes that special vulnerabilities exist. The Paris Agreement and its decisions can escalate the mechanisms that can be remedial to provide relief to these especially affected countries and help them with their trap in the vicious cycles.
(Chhaya Bhardwaj is an Associate Professor at the O P Jindal Global University, and a PhD Candidate at Dublin City University.)
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