Abhinandita Biswas
Introduction
In the Advisory Opinion (AO), the International Court of Justice (ICJ) answered on the legal consequences that States may incur by their acts or omissions in causing harm to the climate system and other parts of the environment (Part V, subsection B). The court asserts that to determine and identify the legal responsibility of States, an in concreto assessment (para 97) is required which must be undertaken on a case-by-case basis (para 106). Therefore, the court must establish: a) an applicable legal framework of State responsibility in respect of responsible States relating to their obligations to protect the climate system and b) outline the general terms and the legal consequences flowing from such breaches (para 106).
Broad Material Scope of States’ Obligations
The court considered the two questions posed (Questions (a)and(b)) as interrelated concerns that demand the identification of States’ obligations pertinent to activities that cause climate harm and the legal consequences of their breach (para 94). It believes that ‘relevant conduct’ in this case is not limited to conduct that directly results in greenhouse gas (GHG) emissions (Question (a), but extends to all actions/omissions of States that cause climate and environmental harm by means of GHG emissions. The court employed a broader material scope to include the full range of human activities that add to climate change, resulting from GHG emissions, inclusive of both consumption and production activities (para 94). It further extended the States’ obligations in this regard to non-state actors as well, which are within their jurisdiction or are under its effective control and cause climate harm by anthropogenic GHG emissions (para 95).
Interpretation of ‘obligations’ and ‘legal consequences’
The ICJ explained that ‘obligations’ mean the identification of legal consequences by the Court, which eventually arise from various other obligations under international law (Heading IV, subsections 1-7; paras 170 and 171).
i. Legal consequences in the context of ‘specially affected/particularly vulnerable’ States
The court opined that specially affected/particularly vulnerable states are entitled to the same remedies as that of other injured States (para 109). It clarified that Small Islands Developing States experience greater and disproportionate impacts of climate harm owing to their geographical location and level of development (IPCC, Climate Change 2023: Synthesis Report, section 3.1.2) and are subject to pertinent primary rules of international law, but fall outside the scope of Question (b) (para 110).
ii. Legal consequences in the context of ‘peoples and individuals’
The court believed that whether individuals are entitled to invoke legal responsibility of States or make claims of injuries/harm resulting from climate change is dependent on the primary obligations of States (Article 33, paragraph 4 of the commentary, ILC Articles on State Responsibility). It emphasized that individuals’ ability to invoke State responsibility for breach of obligations identified under Question (a) depends on specific treaties and legal instruments that create procedural and substantive rights dealing with the relationship between States and individuals (para 111).
State Responsibility in the Climate Change Milieu
The complex and multifaceted nature of climate change gives rise to issues that require a specialized application of customary rules on state responsibility, primarily due to the varying degrees of contribution by the States in GHG emissions (para 142). The court, in particular, addressed questions on attribution and causation as acts/omissions attributable to a state can only attract responsibility in international law (para 422). The ICJ, therefore, discussed the operation and applicability of these rules.
Questions on Attribution
The ICJ made the following observations on understanding attribution in the context of establishing State responsibility in issues of climate harm:
AA. As established by the ICJ in the Democratic Republic of the Congo v. Uganda and Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, the conduct by any organ of a State is regarded as an act of the State itself. The failure of a State to take requisite action in protecting the climate system from GHG emissions thereby constitutes an internationally wrongful act, attributable to the State. The ICJ further clarified that such an internationally wrongful act is not merely the emissions of GHGs but the breach of general and customary international obligations identified under the scope of Question (a) (para 427).
AB. The State will not be responsible for the acts/omissions of private actors resulting in GHG emissions, unless it fails to exercise due diligence, which includes relevant regulatory and legislative measures to limit such emissions by private actors in its jurisdiction(para 428).
AC. On questions raised about the difficulties in invoking State responsibility in climate change because of the cumulative nature of the wrongful conduct and the plurality of injured states, the court declared that it is scientifically possible to identify a State’s contribution to global emissions (IPCC, Climate Change 2023: Synthesis Report; European Commission, Joint Research Centre Science for Policy Report, CO2 Emissions of all World Countries, 2022) and reiterated that the wrongful act is not simply emissions, but the acts/omissions of States that cause significant climate harm (para 429).
AD. While identifying the extent of responsibility in case of a breach of an obligation, it declared that the rules on State responsibility are adept to address situations where harm/injury is caused by multiple States who are involved in a wrongful act (Democratic Republic of the Congo v. Uganda, para 430). Regarding climate change, each injured State can distinctly invoke responsibility of every responsible State for damaging the climate system and environment and where there is a plurality of responsible States, the individual responsibility of each State can be invoked, relating to the wrongful act (para 431).
Questions on Causation
Deliberating on establishing causation in the context of climate change, the Court observed that:
BA. causation of damage is not a requisite for determining State responsibility for an internationally wrongful act (para 433). The legal standard for establishing causation in this case is dependent on the nexus between the internationally wrongful act of non compliance with States’ obligations in protecting the climate system from harm caused by anthropogenic GHG emissions and the resultant injuries suffered by States. The court thus emphasized that a sufficiently immediate and certain causal nexus must exist between the alleged wrongful action/omission and the alleged damage (Costa Rica v. Nicaragua, Democratic Republic of the Congo v. Uganda; para 436). The alleged damage must be flexible to address the challenges resulting from climate change (para 436).
BB. causation, when it operates in the backdrop of climate change, involves two elements: a) if a given climatic event can be attributed to anthropogenic climate change, b) the extent of damage caused by climate change can be attributed to a particular State/ group of States (para 437). The court believes that the identification of a causal link is more tenuous in cases of wrongful actions/omissions that cause climate harm and can be established by an in concreto assessment (paras 437 and 438).
Erga Omnes character of Climate Change Obligations
ICJ, in a radical move, asserted that climate change obligations are obligations erga omnes. Since all States have a common interest in the protection of global environment commons (e.g. the atmosphere and the high seas), therefore, a State’s obligation to protect the climate system and environment from GHG emissions, are obligations erga omnes. Climate change is a common concern of humankind (UNFCCC, first preambular paragraph; Paris Agreement, eleventh preambular paragraph) and hence it is an essential interest of all States to safeguard the climate system and such obligations of States under relevant treaties are obligations erga omnes partes(para 440). Erga Omnes obligations, by nature are ‘concern of all States’ (Barcelona Traction, Light and Power Company, Limited) and treaties that protect such common interests imply the existence of erga omnes partes (Gambia v. Myanmar). Therefore, the ICJ declared that State parties have a legal interest in the protection of the primary mitigation obligations contained in the climate change treaties (Belgium v. Senegal) and can invoke State responsibility when other States fail to comply with them (para 441), under customary international law (para 442).
In conclusion, the court ascertained that the responsibility for violations of obligations under climate change treaties can only be identified by applying the established rules on State responsibility under customary international law, and such violations do not affect the continued obligation of the responsible State in performing the obligation that it has violated (para 445).
(Abhinandita Biswas is an Assistant Professor of Law at Vinayaka Mission’s Law School, Chennai.)
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