The ICJ submissions: driving climate justice or sticking to status quo?

14 Jan

Last month, nearly 100 states testified to the world’s highest court, the International Court of Justice (ICJ), to inform its forthcoming advisory opinion on climate change. While climate vulnerable states pushed for climate justice, many major polluters strove to shirk responsibility and dilute their climate obligations. Our Legal Assistant, Olivia, unpicks the different arguments and explains why we need an ambitious opinion.

Early December saw states put forward oral submissions to the world’s highest court, the ICJ, across two weeks of hearings. These statements, along with four rounds of written submissions, will inform the court’s forthcoming advisory opinion on states’ legal obligations with regards to climate change under multiple sources of international law, in what promises to be a watershed moment for climate action and international law itself.

But the hearings brought to the fore a distinct rift of opinion on what the much-anticipated opinion should look like. Arguments fell broadly into two categories: one that state obligations should be determined in light of the whole gamut of international law; the other that obligations should be limited in scope to just those emanating from the climate treaties, namely the Paris Agreement and UNFCCC. Perhaps unsurprisingly, those advocating the first, more ambitious, approach were largely climate vulnerable countries, while the latter was primarily pushed by high emitting countries in the Global North, seeking to evade accountability for climate action.

The ICJ advisory opinion could resolve this debate by shedding light on the relationship between the climate treaty regime and broader international legal climate obligations, thereby clarifying states' legal duties regarding the climate crisis, thus strengthening future climate action and establishing a firmer basis for climate negotiations. Beyond this, the opinion presents a unique opportunity to address the climate regime’s shortcomings, notably its blind spot to international aviation and shipping.

States fighting for climate justice at the ICJ

The need for a strong advisory opinion in line with principles of climate justice was put in sharp relief with climate vulnerable and small island states leading the most ambitious submissions. Their main arguments concerned:

The principle of prevention: Antigua and Barbuda, the Bahamas and Belize argued that customary international law principles require historical major emitters to use all available means to prevent emissions. Building on this, Samoa and the Seychelles stressed that the principle extended to prevent transboundary environmental harm, the idea that the activity of one state should not cause harm in the territory of another, as recently confirmed by the International Tribunal of the Law of the Sea (ITLOS) advisory opinion.

Human rights law: small island states demonstrated that the right for both current and future generations to be protected from climate change-related impacts constitutes a human right, as recognised by the European Court of Human Rights and UN Human Rights treaty bodies. This means that beyond the climate treaty regime, states are further obligated to mitigate climate change under human rights law.

Nationally Determined Contributions (NDCs): while it is often thought that the NDCs (states’ climate plans submitted under the Paris Agreement every five years) can be put together however states may like, the ICJ submissions reaffirmed that NDCs must be 1.5ºC-aligned and comply with the principle of common but differentiated responsibilities and respective capabilities (CBDR-RC) principle.

Such arguments, invariably from the states at the forefront of the climate crisis, furnished the court with the robust and holistic legal interpretation that should lie at the heart of any advisory opinion striving to drive serious climate action in line with principles of equity and justice. However, theirs were not the only testimonies...

High emitters putting status quo over climate justice at the ICJ

The states that did more to maintain the status quo that advance climate justice at the hearings were by and large those most responsible for the crisis we face – high emitters predominantly from the Global North. Their arguments were largely anchored in one key proposition: that the only source of international legal climate change obligations should be the climate treaty regime. Following this logic, human rights and customary international law, among other sources, would be discounted as irrelevant.

Arguments to this effect took two routes. States including the UK, Russia, Saudi Arabia and the USA outright denied the applicability of wider sources of international law altogether. Others like New Zealand presented a watered-down version, not denying the existence of other principles of international law, but nevertheless claiming that the Paris Agreement is the most relevant international legal framework for interpreting States' obligations in the context of the climate crisis, implicitly diminishing the importance of other sources.

Another common part of this argument was that the Conference of Parties (COP) and submission of NDCs were the principal means of implementing the treaty regime, therefore negating the need for states to be burdened with other obligations.

Aligning international law with climate justice

There’s a number of reasons why the idea that the climate treaty regime is the sole source of international legal climate change obligations doesn't hold water. The argument was dismissed just last year in the ITLOS advisory opinion, which interpreted the law of the sea as meaning:

States must take “all necessary measures” to prevent, reduce and control GHG emissions from any source, in line with the best available science and the 1.5°C temperature goal.

Participation in the climate regime cannot discharge States from this obligation, and additional individual and collective action is required. In short, obligations under UNCLOS are not satisfied simply by ratifying the Paris Agreement.

States must ensure that GHG emissions under their jurisdiction or control do not cause damage to other States and their environment, including emissions occurring through domestic or internationally bound ships or aircraft registered in that state.

The ICJ will have to seek to harmonise international law with these climate commitments as clarified by ITLOS, or else risk the fragmentation of international law.

Claiming that obligations under the Paris Agreement and COPs negotiations are sufficient to address the climate crisis is particularly controversial given climate talks have been woefully insufficient to date.

The high emitters’ argument that their NDCs put them sufficiently on track to meet the 1.5ºC goal similarly doesn’t track given their under-ambitious performance record. The United Nations Environmental Programme (UNEP) reports that not only are G20 states’ NDCs far from the level of ambition needed to align us with 1.5ºC or even 2ºC scenarios, but neither are they even on track to achieve these substandard targets.

It’s hard to miss the irony that many from this cohort of states are using the Paris Agreement as an alibi to avoid accountability, even while failing to meet its obligations.

The ICJ could help international law drive climate justice

How could the ICJ opinion close this gap and push states to fulfil the Paris objectives? One key step would be by affirming the need for states to account for international aviation and shipping (IAS) emissions in their NDCs. Around 71% of shipping’s CO2 emissions and 65% of aviation’s result from international travel, as opposed to domestic journeys, but most states do not include these emissions in NDC national totals. This leaves two sectors, together amounting nearly 6% of global emissions, unaccounted for and largely unregulated.

Last year we at Opportunity Green wrote our own submission to the ICJ urging it to recognise the need to rapidly reduce emissions from all sources including IAS. Our submission argued that to defer action on aviation and shipping emissions to their respective UN bodies, the International Civil Authority Organization and International Maritime Organization, cannot be the de facto approach given that neither body’s mitigation plans are in line with Paris climate goals. The ITLOS advisory opinion affirmed this argument just a couple of months later with explicit reference to aviation and shipping.

NDCs are a crucial facet of the Paris Agreement’s implementation and so it is essential that they account for IAS. This will ensure these emissions no longer fall through regulatory gaps and that states are compelled to adopt policy to reduce them.

The reality is that states could account for and take action to reduce IAS emissions tomorrow if they wanted. But December’s proceedings have shown that some countries will do the utmost to avoid committing to further climate action beyond what they currently do. It is for just this reason that we need the ICJ’s advisory opinion to be truly ambitious: if states are to embrace real climate action they must be pushed – we can no longer wait for them to willingly jump.

Read our own written submission to inform the ICJ advisory opinion.