EIGHT years after the Paris Agreement, the global community is nowhere near reducing emissions to keep temperature increase within the safe threshold of 1.5 degrees Celsius by 2030. According to a study led by James Hansen, who is Nasa’s top scientist, “The 1.5ºC limit is deader than a doornail. The 2ºC limit will also be dead unless we take purposeful actions to reduce the Earth’s energy imbalance.”
In the backdrop of this apocalyptic scenario and no breakthrough in climate negotiations, the International Court of Justice has commenced advisory proceedings which include written submissions and oral hearings to give guidance on the obligation of states in respect of climate change, with a view to handing down an advisory opinion in late 2024 or early 2025. The UNGA initiated a formal request after adopting a resolution by consensus, supporting the government of Vanuatu’s request for an advisory opinion from the ICJ regarding state obligations on climate change. This offers a unique opportunity to shape the future of climate action with a pivotal shift in interpreting climate justice.
For countries that risk disappearing from the face of the earth and others that face life-threatening challenges, the ICJ’s upcoming advisory opinion can help in holding big emitters legally accountable under international law. The advisory opinion may also bolster climate litigation and court cases in jurisdictions across the globe — now seeking to hold governments accountable for climate acts and omissions that cause harm or injury to the most vulnerable of present and future generations. This offers a breakthrough opportunity for changing the course of climate action. The deadline for state contributions of the first round of written submissions to the ICJ has been extended until Jan 22, 2024. For countries in the forefront of the crisis, this opens the door for broader engagement in the climate justice discourse to strengthen arguments and place legal perspectives before the court.
Much will depend on how countries present their cases with strong evidence and progressive views on human rights and environmental and climate international law to help the justices of ICJ to underline what those most responsible for the climate crisis must now do to prevent significant harm to vulnerable nations.
ICJ’s advisory opinion can help hold big emitters legally accountable.
This is also an opportunity to place loss and damage at the forefront of future climate negotiations and make the global community realise that managing the climate crisis beyond moral responsibility also entails binding obligations that can be viewed as legal duty.
The ICJ’s advisory opinion may shift the discussions from countries merely offering charity and aid to vulnerable nations to fostering a fair and legally sound form of reparations for climate harm and injury. For countries like Pakistan that contribute the least to the crisis but suffer the most, this opportunity must be used for timely and strongly argued submissions. With the world caught in the grip of violence at a time when the planet is burning, this development infuses new hope in multilateralism and the global justice system. The idea of voluntary reduction in emissions has not worked. It was instrumental in developing an ‘Agenda of Solutions’ but hope of a fair future has been on the decline. This offers state and non-state actors a unique chance to participate in a process that can clarify countries’ legal obligations and hold them accountable for delivery.
As governments and civil societies around the world get ready to participate in COP28, this opening should be used to press home the point that no country has the right to put at risk the lives of people living in other parts of the world in the name of development that is neither fair nor sustainable. With only seven years to go before the projected scorching heat and devastating deluges overrun half of humanity, it is hoped that the ICJ will use past damages and projected future catastrophes to take a decision on what constitutes a global common and how best the international community can assign responsibility and liability for violations. This call for action has come at a time when the global community has taken cognisance of the impact of climate change on the cryosphere. The first inter-polar conference organised by ICIMOD in Nepal followed by a Polar Summit in France, signals that the planet’s equilibrium is at risk and cannot be managed without a “whole of planet approach”.
The decision of the UNGA to request the ICJ to address this issue should not be seen only through the lens of climate justice; instead what is needed is a more holistic view that involves the survival of life systems on Earth of which human beings are the only species accelerating their own extinction.