Dr. Harsha Rajwanshi and Dr. Tajudeen Sanni
INTRODUCTION
On 6 December 2024, the Government of the Republic of Maldives presented oral arguments before the International Court of Justice in the Climate Change Advisory case submissions held from December 2 to 13, 2024. The Maldives was represented by HE Mr Ahmed Usham, Attorney General of the Maldives, Ms Jessica Wells, member of the Bar of England and Wales, Essex Court Chambers, Ms Naomi Hart, member of the Bar of England and Wales, Essex Court Chambers, Ms Camille Boileau, member of the Bar of England and Wales, Essex Court Chambers and Ms Faena Fayyaz, Senior State Counsel, Office of the Attorney General.
The Maldives climate diplomacy, advocacy and measures are rooted in its laws, notably the 2008 Constitution which includes provisions that clearly address environmental protection and international cooperation. Article 22 of the Constitution affirms that “the State shall protect and preserve the environment for the benefit of present and future generations.” This provision establishes a fundamental duty for the state to ensure environmental sustainability, reflecting a commitment to intergenerational equity including in climate change matters. Article 23(d) provides for the right of every citizen to a healthy and economically balanced environment, which further reinforces the state’s obligation to maintain ecological integrity.
These constitutional guarantees create a robust foundation for environmental governance, mandating that all state actions consider their environmental impacts. While the island is a dualist state in which the People Majlis (the Parliament) must ratify international treaties to come into effect, it is safe to affirm that its constitutional and environmental laws are not only generally consistent with its climate change obligations, they also inspire participation in international climate diplomacy such as in this ICJ Climate Change advisory case. Indeed, 255(d) stipulates that measures adopted during emergencies must be consistent with Maldives’ obligations under applicable international law. As per article 68 of the Constitution, deference is made to international obligations in the implementation of fundamental freedoms. These provisions underscore the importance of adhering to international standards even in times of crisis, reinforcing a commitment to legal norms that would be quite relevant in climate change situations.
LEGAL ATTRIBUTES OF THE MALDIVES AS A ‘STATE’ IN RELATION TO CLIMATE CHANGE ISSUES
The Maldives is an archipelagic nation comprising approximately 1192 islands, with a total population that is distributed unevenly across its landmasses particularly the 200 or so that are inhabited. Notably, around 80% of the country’s land lies less than 1 meter above mean sea level, and about 42% of the population resides within 100 meters of the coastline.
This geographical configuration renders the nation particularly susceptible to environmental changes and climate-related impacts.
The Maldives faces acute vulnerability to the slow-onset impacts of climate change, which include phenomena such as sea level rise, coastal erosion, and coral bleaching. These changes pose significant threats to the country’s ecological balance and economic stability, particularly given its reliance on marine ecosystems for tourism and fisheries, which are crucial to its GDP.
The climate crisis has been a central element of the Maldives’ foreign policy initiatives. In 1989, the Maldives hosted the inaugural Small States Conference on Sea Level Rise, which was instrumental in forming the Alliance of Small Island States (AOSIS), where the Maldives emerged as a founding member. The country has taken a leading role in advocating for the establishment of a dedicated Fund for Loss and Damage, actively pursuing its operationalization while promoting efforts towards a just energy transition. The island nation is committed to enhancing support for vulnerable communities, particularly those in Small Island Developing States (SIDS) and Least Developed Countries (LDCs), thereby positioning itself as a frontrunner in global climate diplomacy.
These initiatives reflect the Maldives’ recognition of its unique vulnerabilities and its proactive stance in international discussions surrounding climate change adaptation and mitigation strategies.
SALIENT FEATURES OF THE MALDIVES’ SUBMISSION BEFORE ICJ
Oral submissions were presented before the Court by His Excellency Mr. Ahmed Usham, Attorney General of the Maldives, alongside legal representatives Ms. Jessica Wells and Ms. Naomi Hart. Their arguments highlighted critical issues surrounding climate change adaptation, particularly the legal obligations of developed states towards SIDS like the Maldives. This post analyzes the key points raised during these submissions, emphasizing the implications for international climate law and the responsibilities of high-emission countries.
A central theme in the submissions was the Maldives’ staunch opposition to forced relocation due to climate change impacts. The Attorney General articulated that the Maldives is committed to protecting its inhabited islands through various adaptation measures. This commitment reflects a broader concern for preserving the nation’s millennia-old civilization and homeland, which are threatened by rising sea levels and other climate-related challenges. The rejection of forced relocation underscores a fundamental principle of self-determination and cultural preservation for vulnerable nations facing existential threats from climate change.
The submissions further contended that there exists a legal obligation for developed states to collaborate with the Maldives in implementing effective adaptation measures. The argument posited that these obligations arise not only from specific climate treaties but also from customary international law. The legal framework established by international climate agreements mandates developed nations to provide support for adaptation efforts in developing countries, reinforcing the notion that high-emission states have a duty to assist those most affected by their emissions.
A notable assertion made during the proceedings was that SIDS do not wish to be passive victims of climate change. Instead, there is an active duty for high-emission countries to engage with SIDS, listening to their needs and respecting their rights. This perspective challenges the narrative that portrays vulnerable nations solely as victims, advocating instead for their agency in global climate discussions. The call for cooperation emphasizes mutual respect and responsibility, urging developed nations to acknowledge their role in exacerbating climate vulnerabilities.
The submissions also echoed calls and increased support for a just energy transition, highlighting the need for increased support directed toward vulnerable communities, including SIDS and LDCs. The urgency of transitioning to sustainable energy sources is paramount, not only for mitigating climate impacts but also for fostering resilience among those most affected by environmental changes. This call aligns with global movements advocating for equitable access to clean energy technologies and financial resources necessary for adaptation.
The Island nation articulated the critical importance of international cooperation in combating climate change. This article critically analyzes her arguments regarding the legal obligations of states to cooperate, particularly in light of customary international law and procedural duties aimed at preventing transboundary harm.
It was emphasized that the climate crisis requires a concerted response from all states, highlighting that individual actions are insufficient to address the global scale of environmental degradation. The interconnected nature of climate change means that its impacts transcend national borders, thereby creating an imperative for cooperative action. As articulated in various international legal frameworks, including the UN Charter and the Paris Agreement, states have a recognized duty to collaborate in mitigating climate change and adapting to its effects.
Central to these points is the assertion that international cooperation is not merely a moral obligation but a legal requirement under customary international law. The duty to cooperate is well-established within this framework, encompassing principles that mandate states to work together in addressing environmental challenges. This legal obligation is particularly relevant in the context of climate change, where high-emission states are called upon to assist vulnerable nations in their adaptation and mitigation efforts.
It was reiterated that the Court has a role in developing clear principles regarding procedural aspects of this duty to cooperate. Specifically, she highlights the duty to exercise due diligence to prevent transboundary harm as a foundational element of international environmental law. This principle obligates states to take proactive measures to avoid causing environmental damage beyond their borders, thus reinforcing the necessity for collaborative approaches to climate governance.
Four specific manifestations of the duty to cooperate in relation to climate change were adumbrated:
1. Procedural Duties: These include obligations related to Environmental Impact Assessments (EIAs), which require states to engage in cooperative processes when assessing potential environmental impacts. The Court has previously underscored that such procedural obligations are “all the more vital” when protecting shared environments.
2. Determining Appropriate Measures: States have a duty to cooperate in determining effective measures for preventing or mitigating risks associated with potentially harmful activities. This collaborative approach is essential for ensuring that actions taken by one state do not adversely affect its neighbors. Reliance was placed on Article 1(3) of the UN Charter and Article 56, emphasizing that Member States undertake a “pledge” to take “joint and separate action in cooperation with” the United Nations to fulfil the objectives outlined in Article 55. References were made to the reaffirmation in the Friendly Relations Declaration that States “have the duty to cooperate with one another” to “maintain international peace and security” and promote “the general welfare of nations” as well as “universal respect for, and observance of, human rights.” Further references were made to the Climate Change Advisory Opinion of the International Tribunal for the Law of the Sea (ITLOS), which affirms that “the duty to cooperate is a fundamental principle in the prevention of marine environmental pollution under general international law.”
3. Good Faith Consultations: The duty to consult entails engaging in discussions with other states with a view toward arriving at mutually acceptable solutions. This principle emphasizes the importance of dialogue and negotiation in resolving conflicts arising from environmental issues.
4. Broader Obligations Under International Law: references were made to Article 1(3) of the UN Charter and Article 56, which stress member states’ commitments to act cooperatively with one another and with the United Nations. This broader duty encompasses not only environmental concerns but also promotes international peace, security, and human rights.
The implications of the arguments extend beyond legal obligations; they underscore a fundamental shift in how states must approach climate governance. The recognition that cooperation is a legal requirement compels states, particularly those with significant historical emissions, to take responsibility for their contributions to climate change and actively assist those most affected by its impacts.
Moreover, that Maldivian position aligns with recent developments in international environmental law that emphasize cooperation as a critical component of effective climate action. For instance, the Climate Change Advisory Opinion from the International Tribunal for the Law of the Sea (ITLOS) affirms that cooperation is essential for preventing marine pollution and managing shared resources sustainably.
Those submissions illuminate the critical role of international cooperation in addressing the climate crisis. By framing cooperation as both a moral imperative and a legal obligation under customary international law, her arguments call for a reevaluation of how states engage with one another in climate governance. The manifestations of this duty—ranging from procedural obligations to good faith consultations—highlight the necessity for collaborative approaches that transcend national boundaries.
The Maldives reiterated that mandatory obligations exist within the Paris Agreement, forming an interlocking scheme that necessitates developed countries to provide support effectively. Article 9(1) explicitly mandates that developed states must provide financial resources for both mitigation and adaptation efforts. Wells emphasized that this obligation is binding and supported by various nations’ commitments under the Agreement, including Australia, Iran, South Korea, China, the UAE, the UK, and South Africa.
Furthermore, it was pointed out that treaty obligations coexist with customary international law principles, suggesting that neither framework displaces nor exhausts the other. This duality reinforces the comprehensive nature of international obligations regarding climate action and support.
The analysis presented also delved into the interpretational scope of terms such as “shall” and “should” within the 2015 Paris Agreement. The distinction between these terms is crucial; “shall” indicates binding obligations while “should” suggests recommendations or expectations. This differentiation highlights how international agreements can simultaneously impose strict requirements while also encouraging best practices among nations. Indeed, the Agreement establishes a comprehensive framework for international climate governance, particularly emphasizing the obligations of developed countries to support developing nations in their climate change mitigation and adaptation efforts. The Maldivian submission called attention to the provisions in the Paris Agreement that delineate these obligations, focusing on the interpretational scope and implication of the terms “shall” and “should” as they relate to support obligations. It articulates a dual framework of obligations through its use of “shall” and “should.” The binding commitments outlined by “shall” create a robust foundation for accountability among developed countries, mandating substantial support for developing nations in addressing climate change challenges. Conversely, provisions framed with “should” offer guidance and encourage best practices without imposing legal penalties for non-compliance.
For example, in terms of mobilization of Climate Finance, article 9(3) states that developed States should continue to take the lead in mobilizing climate finance from various sources while considering the needs and priorities of developing States. This suggests a normative expectation for leadership in financial mobilization rather than a strict obligation. In contrast, in terms of International Support for Adaptation, article 7(13) mandates that “continuous and enhanced international support” shall be provided to developing countries concerning adaptation measures. This provision mandates provision of continuous assistance tailored to the specific needs of vulnerable nations.
While this nuanced approach reflects an understanding of differentiated responsibilities among nations in a way that fosters a collaborative environment aimed at achieving global climate goals, it must not stall measures required to deal with the impact of climate change on developing countries such as the Maldives. As such, it is imperative that all Parties correctly recognize their obligations as essential components of their commitment to international climate action under international law.
CONCLUSION
The Maldives has consistently advocated for stronger climate action as a core aspect of its foreign policy. It was one of the 132 co-sponsors of the UN resolution calling for this advisory opinion, viewing it as a critical step toward achieving climate justice and enhancing multilateral responses to climate challenges. Maldives engagement in the ICJ AO highlights the island state’s commitment to addressing climate vulnerabilities and shaping international legal frameworks related to climate action.
The oral submissions presented before the Court encapsulated a critical moment in advocating for the rights and needs of SIDS in the face of climate change. By emphasizing legal obligations on developed nations and rejecting narratives of victimhood, representatives from the Maldives articulated a vision for active participation in global climate governance. The calls for a just energy transition and increased support underscore an urgent need for collaboration among nations to address one of humanity’s most pressing challenges—climate change.
In summary, these discussions not only reflect ongoing legal debates but also illuminate broader themes of justice, equity, and shared responsibility in addressing global environmental crises. As such, they serve as a reminder of the imperative to uphold commitments made under international treaties while fostering meaningful partnerships between high-emission states and vulnerable communities globally.
(Dr. Harsha Rajwanshi is Assistant Professor of Law, Gujarat National Law University, India and Co-Head, GNLU Centre for Public and Private International Law. Dr. Tajudeen Sanni (LLB (ABU), BL(Abuja), LLM (Ilorin), LLM (Liverpool), LLD/PhD (South Africa) is an Associate Professor at the Faculty of Shariah and Law, Villa College Maldives.)
Discover more from Indian Blog of International Law
Subscribe to get the latest posts sent to your email.