Explained | Can countries be sued over climate change? 

Explained | Can countries be sued over climate change? 

Why has the U.N. asked the International Court of Justice to give an ‘advisory opinion’ on whether countries have legal obligations to protect people from climate extremities? Which country brought this issue to the U.N.? What happens next?

The story so far: 
On March 29, the United Nations General Assembly passed a resolution that asked the International Court of Justice at The Hague to provide an opinion on what kind of obligations countries have towards climate change reduction, based on the promises they have made to the U.N. Framework Convention for Climate Change (UNFCCC). What made it particularly important was that the resolution passed by consensus had been pushed through by one of the smallest countries in the world, the Pacific Island of Vanuatu, an island that was devastated in 2015 by the effects of Cyclone Pam, believed to have been spurred by climate change, that wiped out 95% of its crops and affected two-thirds of its population.

The map of Vanuatu

The map of Vanuatu

What does the resolution seek?

The draft resolution (A/77/L.58) invoked article 96 of the U.N. Charter to ask the ICJ to deliberate on two questions: 1) What are the obligations of states under international law to ensure the protection of the climate system for present and future generations? 2) What are the legal consequences under these obligations for states where they, by their acts and omissions, have caused significant harm to the climate system, particularly for Small Island Developing States (SIDS) and for people who are harmed. The resolution refers to several international protocols including the Paris Agreement (2015), the United Nations Convention on the Law of the Sea and even the Universal Declaration of Human Rights. The entire process is expected to take about 18 months for the ICJ to deliberate and deliver its opinion.

What is India’s position?

India has thus far been cautiously silent about the move, although it is generally supportive of the need for climate justice, and holding the developed world accountable for global warming. The government is understood to have referred the resolution to legal authorities in the country who will look into the implications and international ramifications of the ICJ opinion. India has updated its NDC (nationally determined contribution) commitments, as required by the 2015 Paris Agreement and has said it’s on its way to sourcing half its electricity from renewable sources by 2030. However, it is significant that India did not join the overwhelming majority of countries that co-sponsored the draft resolution. In the neighbourhood, the list of co-sponsors included Bangladesh, Maldives, Nepal, Sri Lanka, and a number of island countries in the Indian Ocean Region (IOR). India is also watching how global powers like the U.S. and China respond to the resolution, as without their support, it will be hard to implement. During the discussion on the resolution, the U.S. representative voiced concerns about whether “launching a judicial process” was the best way to reach “shared goals”. “Successfully tackling the climate crisis is best achieved via diplomatic efforts,” the U.S. representative added, according to a UN press release. Indian officials have also said that the ICJ process can only speak about climate change issues and problems broadly and that it cannot name or profile any one country in the process. Pointing to the Paris agreement as a landmark shift towards a “bottom-up” approach, where states themselves determine their ability to mitigate climate change, they also said any attempt to impose an opinion in a “top-down” manner would be resisted. Many other countries are likely to voice their opinion as the process gathers momentum in the months ahead.

What do sponsors of the resolution want?

A legal opinion from the ICJ, the highest global court recognised by all 193 UN members is expected to bolster the efforts under the UNFCCC to ensure all countries work towards mitigating climate change and global warming to the suggested 1.5-2°C limit. While it is expected to give its opinion on the basis of the Convention already consented to by all countries, what will be watched closely is what it says about more contentious issues such as climate reparations by the developed world, legal culpability for countries that don’t achieve their NDC promises, and climate support to the most vulnerable parts of the world battling the effects of global warming. According to the latest IPCC “Synthesis report”, global climate levels have already increased 1.1 degrees since pre-industrial levels in the past century, and deep cuts in greenhouse gas emissions reductions, as much as by a half are required by 2030 to keep this goal. UN Secretary General Antonio Guterres who has called for measures to defuse the “climate-time bomb” said that the ICJ opinion was “essential”, and would “guide the actions and conduct of states in their relations with each other, as well as towards their own citizens.”

The UNGA route adopted by Vanuatu and its supporters also appears to have been more inclusive than two other attempts for an Advisory Opinion sought in December 2022 by Small Island States to the International Tribunal for the Law of the Sea specifically asking about marine environment commitments; and another by Colombia and Chile in January 2023 at the Inter-American Court of Human Rights (IACHR) asking for an Advisory Opinion on human rights obligations for countries pertaining to the “climate emergency”.

What sparked the idea for the resolution?

The original idea for taking the case for climate obligations to the highest legal court came from a group of 27 Pacific Island law students, who set up a campaign and brought it to the Pacific Islands Forum. Since 2019, the Vanuatu government, with the support of an 18-member “core group” of countries, has been promoting the idea of an Advisory Opinion from the ICJ. It prepared the draft resolution that was eventually co-sponsored by 132 countries at the UNGA and went through without a vote. While the U.S was among a few countries that expressed some reservations, no country opposed the resolution. Vanautu’s Prime Minister Ishmael Kalsakau, who spearheaded the campaign, called it “a win for climate justice of epic proportions”.

Is the advisory opinion of the ICJ binding?

The ICJ is being asked for an “advisory opinion”, which by definition would not be legally binding as an ICJ judgment. However, its clarification of international environmental laws would make the process more streamlined, particularly as the COP (Conference of the Parties) process looks at various issues like climate finance, climate justice, and the most recently agreed to “loss and damages” fund at the COP27 in Sharm El-Sheikh last year. The ICJ carries “legal weight and moral authority”, said the sponsors of the resolution, and gave as examples advisory opinions given in the past on the Palestinian issue (Construction of the Wall), nuclear threats and on the dispute between the U.K. and Mauritius over the Chagos Islands, that have been respected.

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