ICJ rejects the narrow framing of ‘lex specialis’ in its Climate Change Advisory Opinion – Indian Blog of International Law

Abhinandita Biswas

Introduction

The International Court of Justice (ICJ) in its Advisory Opinion (AO) while deliberating on the obligations of states in respect of climate change discussed the novelty of the interpretative principle of lex specialis (subsection 8, paras 162-171). In this regard, the Court broadly discussed if the climate change treaties that form only the relevant applicable law (para 113) will take precedence, and by virtue of lex specialis, lead to the general exclusion of other rules and principles of international law.

The participants’ view on the application of Lex Specialis

The question entails how the identified rules/applicable laws (for e.g. the Charter of the United Nations, climate change treaties, UNCLOS, other environmental treaties, duties enumerated under the customary international law, international human rights law and other principles like equity, sustainable development, CBDR etc.) (Heading IV, subsections 1-7) are excluded from binding obligations by means of lex specialis. This question conceptualizes the relationship between climate change treaties with other rules of international law. The arguments of the participants in the case can be broadly divided in two categories: 

a) climate change treaties are the principal instruments but are essentially parts of broader sets of rules that needs to be considered by the Court. Climate change treaties are not lex specialis rules in relation to other rules pertaining to climate change. (para 162; General Assembly Resolution 77/276). 

b) The Court must only emphasize on climate change treaties that constitute lex specialis rules and displace general rules.(Preamble to General Assembly Resolution 77/276). Climate change treaties should have priority over any conventional rule or customary rule of international law. (For e.g. the positions taken by countries like Japan, United States and Russia in their written statements). Therefore, these obligations cannot be replaced or altered by any other source of law.

Rejection of the Lex Specialis principle by the Court

The Court, remarkably rejected the claims made by virtue of lex specialis that only climate change treaties that make up the ‘relevant applicable’ law will be upheld. Its unequivocal rejection of the argument that climate change treaties constitute lex specialis was unanimously agreed to, in the joint declaration made by Judges Charlesworth, Brant, Cleveland and Aurescu (Joint Declaration, pt.2) and also echoed in the declaration made by Judge Tladi (Declaration by Judge Tladi,part 2, pt.4). Further, the court also said that all States have binding obligations to comply with rules not just under the UNFCCC, Kyoto Protocol or the Paris Agreement  but also under international human rights law, law of the seas and other relevant rules of international law/treaties. (para 171). 

The Court reviewed the principle of lex specialis in two parts, to elaborate on its rejection, primarily focusing on its interpretative role.

A: The presence of an ‘actual inconsistency’ between the the two provisions in question

It has been explained by the International Law Commission (ILC)  that for the application of the principle of lex specialis, there must be some actual inconsistency between the two provisions that deal with the same subject matter. (para 167, AO; Article 55, paragraph 4 of the commentary, ILC Articles on State Responsibility). The court found that there are no actual inconsistencies between the provisions in climate change treaties and other rules/principles of international law in relation to ensuring protection of the climate system and environment by emission of greenhouse gases (Question (a),General Assembly Resolution 77/276). In reality, the Preambles to both UNFCCC and the Paris Agreement contain references to other rules and principles that the State parties to these treaties have recognized,  outlining their role in finding solutions for climate change. (para 168).

B: A ‘discernible intention’ of exclusion by one provision against the other

The ILC in its commentary on application of Lex Specialis (Article 55, paragraph 4 of the commentary, ILC Articles on State Responsibility) has  highlighted the need for discernible intention of exclusion by one provision to exclude the other provision, even if they deal with the same subject matter. (para 167). The court here, noted that there was no identifiable ‘discernible intention’ of the parties to the climate change treaties to replace other applicable rules and principles. It also clarified that even the object and purpose of these climate change treaties do not contradict the other rules/principles of international law (para 169). The operation of special rules, in addition, must be clear from their interpretation of the respective instrument. Special rules further, must also determine the ‘extent of such exclusion’ as well (para 412).

Judge Nolte however argued that the determination and application of customary obligations in climate change treaties is not an application of the lex specialis principle. He contended that although climate change treaties do not intend to replace customary duties in environmental protection and prevention of environmental harm, both the treaty and the general customary rules can potentially influence each other. (Part B, pt.9, Declaration of Judge Nolte)

Application of climate change treaties and the exclusion of general customary international law/ treaty rules on protection of environment

The court did not find any particular indications where the climate change treaties have simultaneously excluded general customary international law/ treaty provisions, for the protection of the environment. It further emphasized that climate change treaties have been meticulously negotiated and include interrelated rules which also do not indicate such exclusions (para 170). It also made a determination of the applicable laws which are immediately relevant for answering the question on the obligations of States for ensuring protection of the climate system under international law, by emission of greenhouse gases (Question (a), General Assembly Resolution 77/276, para 172, AO).  It is also noted that this determination is made without undermining other rules of international law which might be relevant in understanding other circumstances in the climate change milieu. 

The rejection of the key argument used by high-emitting States that climate change treaties are a lex specialis framework and the reinstatement that all States have binding obligations to reduce  emissions, by the International Court of Justice is truly a radical move reaffirming the cause of climate justice. By rejecting the narrow framing of lex specialis principle, the court has bestowed legal duties on all the States to mitigate, remedy and prevent climate harm. 

(Abhinandita Biswas is an Assistant Professor of Law at Vinayaka Mission’s Law School, Chennai.)