The ICJ Climate Hearings

December 7, 2024

“This may well be the most consequential case in the history of humanity.”

Ralph Regenvanu, Vanuatu’s Special Envoy for Climate Change and Environment

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Introduction

Fresh from COP29 and the ensuing discontent in Azerbaijan, and the current delays on the Treaty on Plastics, INC-5, we are now witnessing the legal hearings in the highest court in Den Haag / The Hague - International Court of Justice, case #187.

The case has been brought by the UN General Assembly on behalf of the Vanuatu-led campaign, following the consensus Resolution 77/276 on 29 March 2023. Among many records, there are some 100 oral statements scheduled, with Vanuatu’s arguments scheduled for next Thursday, 12 December. This follows the submission of a record 91 written case submissions.

The case also follows a record year of extreme storms and floods across the planet, and a record year for global temperatures driven by the Earth's Energy Imbalance, the proximate cause for such extreme weather.

Vanuatu's circumstances, as with many island states, are extreme. With an average elevation above sea level between 1 and 2 metres, the risks to their economies and infrastructure are manifesting now. And they are existential risks for the populations affected. Moving to higher ground is not an option. And sea level rise is inevitable.

What does climate justice look like for such populations?

The ICJ are to provide an advisory opinion on the following two issues:

the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations; and
the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to: States, including, in particular, small island developing States (SIDS), which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change; and peoples and individuals of present and future generations affected by the adverse effects of climate change.

“The release of the oral statements schedule by the International Court of Justice puts us one step closer to one of the most important climate decisions of our time. The Court’s advisory opinion will clarify the obligations of all nations to address historical climate change, as well as prevent future harm to the climate system, the environment and our fundamental human rights."

“We are on the front lines of climate change; Vanuatu is projected to lose 25% of its gross domestic product (GDP) every year due to climate disasters. The impacts are already being felt by our communities. The lives of present and future generations are at stake."

Arnold Kiel Loughman, Attorney-General for the Republic of Vanuatu

Existing Laws and Precedents

The ICJ is to respond to the above questions on the basis of a selected set of legislative instruments. These include the treaty instruments, customary rules, principles and soft law instruments that today constitute the pillars of the legislative model and United Nations. An integrated interpretation would allow the ICJ to incorporate climate obligations from the Paris Agreement into such instruments. The ICJ will also take into account other international and national court rulings on the same subject matter - namely, the International Tribunal for the Law Of the Sea(GHG emissions absorbed by the ocean are a form of marine pollution, subject to international controls); the European Court of Human Rights(the binding Klimaseniorinnen ruling ordering Switzerland to revise its climate policies); and the South Korea Constitutional Court (the Act failed to set GHG reduction targets beyond 2030, effectively passing the burden of climate action to future generations).

As the EU has indicated to the ICJ, a progressive interpretation of international environmental law should be adopted, to encourage States to address the challenge of climate change with determination. An integrated interpretation must be offered of the basic norms of general international law (such as the UN Charter) and certain pre-existing aspects of the international legal system (e.g. international protection of human rights, or law of the sea) that predate the development and consolidation of international environmental law, but which also safeguard the interests of the international community as a whole. In that regard, Resolution 76/300 of the UN General Assembly of 28 July 2022 is fundamental, recognising the right to a clean, healthy and sustainable environment as a human right.

The principles governing interpretation are (i) the duty of due diligence and (ii) the principle of prevention (both of which are from customary law and exist in all areas of international law) and (iii) the principles of progression and environmental rule of law, which come from international environmental law.

The application of the principle of due diligence in environmental law, which requires States to prevent significant damage to the environment, is well established in international law. Per the ITLOS advisory opinion, the content of due diligence “may change over time as measures considered sufficiently diligent at a certain moment may become not diligent enough in light, for instance, of new scientific or technological knowledge". The integration of human rights alongside scientific knowledge in the climate obligations framework exemplifies this progressive evolution. The Paris Agreement provides a basic framework to achieve equitable outcomes, with the obligation to undertake mitigation and adaptation measures, based on the principle of due diligence, with States acting in accordance with their respective capabilities.
The principle of prevention of significant harm to the environment is a principle recognized by international case law and obliges States to exercise their sovereignty in a way that ensures that activities within their control do not cause environmental damage beyond their borders.
The progression principle appears in Article 4.3 of the Paris Agreement, where each Party’s successive NDC "will represent a progression beyond the Party's then current NDC and reflect its highest possible ambition." In conjunction with the COP26 Breakthrough Agenda, this principle calls for ongoing improvements of environmental legislation, on the basis of e.g. the latest scientific knowledge, with updated commitments due to the NDC Registry every five years.
Recent developments in international environmental law provide two further changes which reflect the principle of environmental rule of law and environmental democracy: (i) the linking of environmental protection to human rights, by granting certain environmental rights to civil society (as individuals or groups); and (ii) public participation in environmental matters in the interests of environmental democracy. Citizens must have access to information, so that they can participate in decisions that affect them, and they are able to defend their rights in Court. The IACHR and REDESCA resolution No. 3/21 recognizes that climate change is a human rights emergency, constituting one of the greatest threats to the full enjoyment of human rights by present and future generations, to the health of ecosystems and all species.

"The Most Affected"

Vanuatu and other low level island states are unfortunately not likely to survive the long-term effects of climate change. They will most likely be lost to sea level rise within decades. And other nations - predominantly 'Global South' nations - are also bearing severe impacts from climate change. Many with fragile economies and excess debts. They are particularly vulnerable to climate change impacts and the economic and environmental catastrophes that inevitably follow. For ease of reference, all such nations are collectively referred to below as "Most Affected".

Against this backdrop, the Most Affected hope for positive and rapid changes in climate action and climate funding.

The UN COP processes and climate treaties have not delivered in time - the UNFCCC was established 30 years ago, the Kyoto Protocol 27 years ago, and the Paris Agreement almost a decade ago.
The historical problem is funding. The future problem is also funding. Climate action must be financed not just in well-financed countries around the world, but in all countries. We are all on that same sinking ship "HMS Drawdown". There is no excuse for continued lack of action that is well overdue and ultimately self-preserving for all nations.
Climate funding that is both adequate and fair, considering that significant harm has been caused to the Most Affected by the industrialisation and enrichment of developed nations. Collectively the Most Affected are a small part of the industrialisation and emissions that have created the current polycrisis. And developed nations have cut their own emissions while in effect 'outsourcing' emissions to other polluter nations and the Most Affected.
Climate justice that holds major polluters legally accountable and holds them to an action plan. It is one thing to argue about the balance of historical liabilities, but quite another to continue to obfuscate, delay and avoid taking actions to mitigate impending disaster.

“Vanuatu is hopeful the ICJ advisory opinion will usher in a new era of climate cooperation that clarifies legal responsibilities under international law and respects and protects human rights with clear paths to hold major polluters accountable for their lack of action. Climate change is amplifying the strength and frequency of the mega-storms that have hammered the entire world, from the U.S to France to Vanuatu; all nations are suffering the consequences. We have no choice but to act, and the court decision will set the stage for real climate action and lasting solutions to climate change."

Arnold Kiel Loughman, Attorney-General for the Republic of Vanuatu

The Pleadings so far

The last things The Most Affected wish to hear are exactly what is being put forward at the ICJ.

Broadly, the criticisms and arguments so far are as follows:

Exculpatory pleadings from polluting nations and developed nations, as to responsibility under international law and even as to the severity of the crisis
'hiding behind failed treaties' instead of taking meaningful action - insistence on existing climate change treaty obligations (UNFCCC, UNCLOS) as necessary and sufficient, urging the Court not to identify new customary international law obligations
Very technical, legal arguments, in contrast to the impassioned pleas of the Most Affected, highlighting the social, cultural, political and economic dimensions of climate catastrophes
“when it comes to paying lip service to climate justice, they are all on board, but here they pull every lever to escape accountability”
“you do not need to master the depth of attribution science to understand that fossil fuel expansion is not compatible with the Paris Agreement"
Such states knew as far back as the 1960s that their actions would lead to “drought, famine, and political unrest” but proceeded regardless
the “absolute disconnect from reality” with regard to Kuwait’s “desperate attempts to greenwash the fossil industry.”

Kuwait held that since the treaty regime does not prohibit GHG emissions tout court, these emissions cannot constitute an internationally wrongful act.
El Salvador, Ecuador, UAE, and Egypt reinforced the centrality of 'common but differentiated responsibilities and respective capabilities' (CBDR-RC) towards a climate justice approach, while the United States outrageously argued that CBDR-RC is neither an overarching principle of the Paris Agreement nor implies any differentiation of commitments between countries
Malawi held the climate crisis is a “crisis of inequity” highlighting the perspective of LDCs ('least developed countries') - recently suffered climate harms led to a “massive setback” in progress toward SDGs and the African Union’s Agenda 2063, and their ability to repay debt.
Belize likened GHG emissions to a transboundary river polluted by upstream States - general causation suffices in the context of climate change - no single legal text establishes universal causation standards, the content of the specific obligation must guide causal determination.
Bolivia held that the climate crisis stems from the “capitalistic” development model that has dominated over the past two centuries - the “bitter fights” over climate finance at COP29 illustrate that the international community needs clear legal guidance
Brazil held that terms in climate treaties such as “may” and “should” do not solely speak to the binding nature of obligations - parties’ intentions should also be taken into account
The Cook Islands denounced the "colonial and racist" underpinnings of the climate crisis', with “genuine, heartfelt apologies” to serve as the foundation of an international system “based on trust, reciprocity, and care, rather than oppression and domination."
The Marshall islands called on the Court to refer to the entire corpus of international law, including customary law and principles, when determining obligations. The risk - not the occurrence - of transboundary harm triggers States’ duty of due diligence to minimize risks and prevent harm. States have known about these risks since at least the 1960s, long before climate treaties were adopted.
Indonesia underscored the relevance of UNCLOS - in particular the obligation for parties to prevent, reduce, and control pollution to the marine environment “from any source” - as set out in the recent ITLOS advisory opinion.
In response to Germany’s dismissal of future generations as “abstract persons” incurring “abstract risks,” Kiribati underscored there is “nothing abstract in their predicament.”
Spain stood out against its European neighbours highlighting domestic efforts to give ecosystems legal personality, and championing the right of environmental NGOs to file lawsuits in the common interest.
France held that attribution of responsibility to individual States is beyond the Court’s mandate, but that the opinion could clarify the date from which States incurred an obligation to avert climate harm. Article 4.2 of the Paris Agreement (NDCs) was a legally binding obligation of conduct which “can never be an excuse for inertia.”
The Philippines held that non-compliant States are committing internationally wrongful acts, triggering responsibility and requiring a remedy similar to the “Writ of Kalikasan” - that protects the right to a healthy environment.
Chile held that States’ failure to limit GHG emissions may constitute a breach of human rights, alluding to the ECHR finding that simply elaborating NDCs does not satisfy the requirements of human rights law, which may apply extraterritorially
Cameroon went as far as to urge the Court to recognize the crime of ecocide and invited countries to exercise their criminal jurisdiction to ensure “non-repetition” of climate harms

Again, the Vanuatu special envoy expresses the issues with eloquence:

“these treaties are essential, but they cannot be a veil for inaction or a substitute for legal accountability. There needs to be an accounting for the failure to curb emissions and the climate change impacts and human rights violation that failure has generated”

“the conduct responsible for climate change is not just irresponsible—it is unlawful under a range of international obligations, including those under the law of the sea, human rights law, and environmental law. The destruction of Earth’s climate system constitutes an ongoing breach of international law, and it demands immediate legal recognition and cooperative measures to turn the tides, repair the harm, and protect our futures from further destruction"

“Our appeal is to all nations, especially those with the greatest capacity and historical responsibility, to align their actions with the principles of international law and the urgent needs of our shared planet"

“No country can afford to keep its head in the sand any longer. The time for decisive, legally grounded action is now”

Ralph Regenvanu, Vanuatu’s Special Envoy for Climate Change and Environment

"We cannot wait for speeches, when the sea is rising around us all the time"

Simon Kofe, Tuvalu Foreign Minister

Conclusion

Seen through the lens of others at the ICJ trial, the level of collective denial amongst polluter nations (past and present) is disconnected from reality. The arguments put forward hold no weight against the seriousness of the Earth’s environmental degradation.
In general, polluter nations are willing to take ambitious national actions. But these are not sufficient on their own. The problems arise when dealing with international commitments and cooperation.
In simple terms, a "you go first" mentality must be overcome at the international level. Past polluter nations know the right thing to do, and believe they are doing it, but also suffer from cognitive dissonance and a 'hierarchy maintenance' reality. Current polluter nations are rising in this hierarchy, and will refuse to reduce their own national wealth generation (from fossil fuels) when there is no sense of true recompense, cooperation and commitment from others. The major outlier and largest polluter of course being the USA.
The refusal to provide sufficient climate finance ambition at COP29, and the failure to negotiate a Global Plastics Treaty, are symptoms of this stalemate. And they undress the underlying lip service at work. Such finance (howsoever described) is - for an increasing number of countries - existential finance that MUST be raised.
Unfortunately, polluting nations (past and present) appear content to consign their populations and everyone else to a hothouse Earth scenario, a dystopian version of the game Chicken, or 'lifeboat politics'. For the Most Affected nations, this is an existential risk.
But many polluting nations will also suffer disproportionately from the effects of future climate change, as they are also members of the Most Affected.
Nations may fundamentally disagree on how, when, previous history, who pays etc. But there are no free rides and a rich nation or corporate with ‘clean hands’ is very rare. Nations have reached highly effective global agreements in the past and they must do so again.
Arguments about who pays and how much raise important issues of fairness and exculpation, but other funding alternatives are also available to bypass some issues. The issues are of course complex - the wealth from past pollution sits with nations but also powerful private interests that engage in economic and political capture and worse.

There are many solutions for the funding and risk mutualisation aspects that make remedial actions achievable. Including new taxes and redirection of existing fossil fuel subsidies. Many of which can act to soften the relative impacts on, and perceived injustices between, past and present polluter nations. Especially new taxes (on activities and assets) which are an easier way to accomplish the 'automatic' or structural funding amounts needed - while directly taxing the harmful activities and asset bases built up from past pollution. Nothing will be exactly fair, but necessary to achieve the correct quantum and regularity of finance.
Of course, “turkeys don’t vote for Christmas”, so the collective whole and the law are going to have to get all (or most) of these “giga-ton turkeys” to commit to Carbon Liability Funds, Loss and Damage Funds, Environmental Protection Funds, and other Funds for Future Generations.
A positive ICJ advisory opinion will assist in putting a 'straightjacket' on such argumentation, and legal weight to the commitment process ahead. In the long run no one is above the law.
The alternative is to reform the UN COP process and for the 'most willing' nations to go it alone with other nations as a 'super majority'.

The daily reports for the trial

The televised pleadings for the trial

It is hoped that the Court will hand down its decision on the request for the advisory opinion in early 2025.

“The lengthy discussions at COPs with its stalling, delaying tactics and procrastination, that have hampered implementation and delivery is simply cruel and unjust. We cannot afford to spend more time skirting around the real issues, and we must break out of the open ended process-focused discussions we are trapped in..... In the face of impending catastrophe, whose warning signs are already unbearably disastrous, weak action is unwise. No action is dangerous.”

William Ruto, President of Kenya

"But man is a part of nature, and his war against nature is inevitably a war against himself. Why should we tolerate a diet of weak poisons, a home in insipid surroundings, a circle of acquaintances who are not quite our enemies, the noise of motors with just enough relief to prevent insanity? Who would want to live in a world which is just not quite fatal?"

Rachel Carson, Silent Spring, 1962

"The ultimate test of man's conscience may be his willingness to sacrifice something today for future generations whose words of thanks will not be heard."

Gaylord Nelson, former governor of Wisconsin, founder of Earth Day

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The ICJ Climate Hearings