International Court and Climate Change

Vanuatu – an island country in the South Pacific Ocean, recently led a draft UN resolution requesting an advisory opinion from the International Court of Justice (ICJ) on state’s legal obligation for climate action.

What is the draft resolution?

• The draft resolution requests the ICJ’s opinion on legal obligations of states to ensure the protection of the climate system based on a number of global treaties and principles of international law. These include the UN Charter, the UN climate convention, the Paris Agreement and the UN Convention of the Law of the Sea (UNCLOS).
• It also asks ICJ to lay out legal consequences for the countries that “by their acts and omission” have caused significant harm to the climate system. The resolution thus aims to establish the legal avenues for climate justice for present and future generations.
• It was prepared with a broad coalition of 16 countries, including Angola, Bangladesh, Germany, Mozambique, New Zealand, Portugal and Vietnam and a number of small island states.

Need for Draft Resolution –

• Vanuatu is facing sea level rise and increasingly powerful cyclones that periodically cripple its economy and threaten its population of just over 3 lakh people. As emissions rise and the world remains off track to meet its climate goals, overheating is threatening the archipelago’s ecology, livelihoods and infrastructure.
• Earlier this year, in its updated 2030 climate plan, Vanuatu set out $178 million worth of measures it wants to take to respond to loss and damage. For example, including affordable micro-insurance, essential healthcare, relocation of communities away from threats.
• The international community has fallen short of delivering concrete solutions and acting together on the issue of climate change. For instance, the recently concluded 27th UN Climate Change Conference (COP-27) failed to resolve differences of nations on critical issues such as reducing greenhouse gas emissions.

What are the legal questions posed by Vanuatu’s Draft Resolution?

• What are the international law obligations of countries toward the protection of the climate system from anthropogenic emissions of greenhouse gases for the present and future generations?
  • • The ICJ while answering this question may not only interpret and clarify the existing international environmental treaties but also use the general and customary international law (CIL) to fill the gaps in these treaties.
    • For instance, the ICJ can use the ‘no-harm’ principle where states are under an obligation that activities within their jurisdiction do not damage other countries to clarify ambiguous terms in the Paris Agreement.
• The ICJ while clarifying legal consequences of violating international obligations seek to determine the price that states should pay for not honouring their international legal obligations on climate change.
  • • However, the connection between funding and the historical responsibility of developed countries in emissions is yet to be determined.
    • There is little clarity on which countries will provide the funding to financially assist vulnerable developing countries.
    • The ICJ can thus predictably elaborate on the legal principles that might help the operationalisation of the ‘loss and damage’ fund that was agreed at COP-27 of the UN climate negotiations.
    • Loss and damage refer to costs the rich and developed countries, who are majorly responsible for industrial emissions, should pay to poorer nations that have made negligible contribution to pollution but are more vulnerable to extreme climate events.

What are the other advisory options sought?

• The Commission of Small Island States on Climate Change and International Law (COSIS), comprising countries like Antigua and Barbuda and Tuvalu, has also sought the advisory opinion of the International Tribunal for the Law of the Sea (ITLOS).
  • • ITLOS is a Hamburg-based self-governing judicial body established by the 1982 UNCLOS.
• ITLOS has been requested to determine the specific obligations of the countries under UNCLOS about preventing, controlling, and reducing pollution of the marine environment.
  • • This is because the challenges of ocean warming, sea level rise and ocean acidification are all linked to the marine environment.

Conclusion –

As part of a multi-pronged approach to save planet, the role of international courts should be welcomed. Developed countries and groupings like the G-20 should also support these laudable initiatives of the SID states. Environment and climate sustainability being important themes of G-20, India, as its president, should take a lead given its relentless emphasis on LiFE (developing environment-friendly lifestyle) campaign.

Source – The Hindu

QUESTION – Recently, some of the island countries have moved to the International Court of Justice seeking advisory opinion of the court with respect to obligation of member states to ensure the protection of the climate system based on a number of global treaties and principles of international law. What is the draft resolution? Discuss its implications on the member states.