“The sturdy do what they’ll and the weak endure what they have to.” — Taken from the oral assertion of Nauru, citing Thucydides, The Historical past of the Peloponnesian Conflict, e-book 5, ch. 89 (trans. R. Crawley, 1874).
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From Dec. 2-13, the Worldwide Court docket of Justice (ICJ) held oral hearings in its ongoing local weather advisory opinion proceedings. Involvement from 97 states and 11 worldwide organizations make these the ICJ’s biggest-ever proceedings, in addition to the biggest of the three local weather advisory opinion proceedings pending earlier than worldwide courts through the course of 2024 (the Worldwide Tribunal for the Regulation of the Sea [ITLOS] having delivered its opinion in Might, and the Inter-American Court docket of Human Rights [IACtHR’s] because of be delivered in 2025). Of the three, the ICJ’s proceedings are additionally the broadest in scope, they usually have concerned a lot civil society consideration in addition to a listening to with Intergovernmental Panel on Local weather Change (IPCC) local weather scientists. These proceedings (wherein I used to be concerned on behalf of the Worldwide Union for Conservation of Nature) stand to concern necessary, authoritative steering concerning the nature and interplay of States’ obligations, constructing on and complementing the steering offered by different worldwide courts.
Background on the Proceedings
The request for an advisory opinion that lies on the coronary heart of those proceedings started as a student-led initiative, supported by Vanuatu and a core group of States. These proceedings posed a fastidiously crafted query to the ICJ, in search of clarification of States’ climate-related obligations beneath overlapping areas of worldwide regulation. This query, as posed by the U.N. Common Meeting and co-sponsored by 132 international locations, asks the Court docket to make clear States’ climate-related obligations beneath:
(a) the U.N. Constitution;
(b) a number of U.N. human rights devices;
(c) the worldwide local weather regime;
(d) the regulation of the ocean; and
(e) customary worldwide regulation.
The Court docket can be requested to make clear the difficulty of reparations, and extra particularly the authorized penalties of great local weather and environmental hurt, each with respect to States – notably susceptible small-island creating States – and to peoples and people belonging to current and future generations.
Given the variety of events concerned, these proceedings are voluminous. The written feedback obtained by the Court docket (particularly 91 written statements and 62 feedback on these statements) are successively being made accessible on-line, with verbatim studies of the oral interventions additionally being made accessible together with a video livestream. The ICJ’s opinion continues to be to be written. Nonetheless, numerous broader themes and questions have already emerged from the proceedings.
The Foremost Traces of Argumentation: Two Camps
Total, States’ positions throughout their oral interventions may be roughly segmented into two teams. On the one hand, many international locations – particularly, however not solely, creating and low-emitting ones – argued that the Paris Settlement doesn’t characterize the sum whole of State obligations on local weather change, and that the customary no-harm rule (the well-established obligation to stop vital transboundary hurt to the atmosphere, accompanied by an obligation of due diligence in minimizing corresponding dangers) and human rights regulation create extra, further-reaching obligations. In doing so, they emphasised science-led approaches and their very own vulnerability to climate-related impacts like storms, droughts, and sea-level rise, coupled with their restricted contribution to the causes of local weather change. This fed into emphasis of the Paris Settlement’s precept of “frequent however differentiated tasks and respective capabilities, in gentle of various nationwide circumstances” (CBDR-RC), and the necessity for equitable, bold and differentiated motion from States that components in regard for ranges of growth and historic emissions. Many of those States additionally invoked totally different human rights impacts, emphasizing the suitable to a wholesome atmosphere and the rights of Indigenous peoples and susceptible teams. These and different rights, they argued, ought to apply extraterritorially. They moreover invoked dangers to their territory, statehood and tradition and the suitable to self-determination, emphasizing enduring colonial legacies, growth wants and the influence of debt burdens and unchecked company and investor energy. They drew on worldwide environmental regulation, foregrounding the polluter pays and precautionary rules. And so they framed their interventions in opposition to their disappointment with worldwide negotiations beneath the U.N. Framework Conference on Local weather Change (UNFCCC) umbrella, emphasizing intragenerational fairness and the necessity for adaptation finance, compensation for loss and injury, and ample reparations.
Against this, a number of high-emitting and developed States centered on contesting the existence of binding worldwide authorized obligations to mitigate their emissions or present reparations. To take action, they repeatedly emphasised the significance of constant political negotiations and the “fastidiously negotiated” however simply destabilized options thereby achieved thus far. Numerous States argued that the worldwide local weather regime was self-contained and represented a lex specialis to all different invoked guidelines. This treaty, they argued, left States free to set the content material of their NDCs and didn’t present any steering for apportioning remaining emissions between them. Regarding reparations, they contested the existence of differentiated obligations for creating and developed States and argued that complicated causal chains prevented the attribution of accountability to particular person States. As well as, they superior a number of layers of argument to hedge in opposition to the applying of the no-harm rule. This meant arguing that these guidelines apply solely to bilateral relationships amongst neighboring States – or, in the event that they do apply to a worldwide drawback like local weather change, then they’ve solely began to use not too long ago, and subsequently don’t apply to historic emissions; lastly, they argued, compliance with the Paris Settlement robotically additionally means compliance with customary regulation. Moreover, some States additionally defended the extraction of fossil fuels – whether or not immediately, like Kuwait; or not directly, just like the joint Nordic states, who emphasised the complexity of causal chains given “the mixed necessities of life worldwide.”
Actually not all contributions aligned exactly with these two camps: the written and oral contributions have been wealthy and diverse. For instance, the State of Palestine emphasised the accountability of States for the climate-related impacts of armed battle and occupation. Some European States, like Latvia, Liechtenstein, Albania and Slovenia expressed their help for the arguments of creating international locations and underscored these States’ vulnerability. Colombia made an in depth case for reparations. Barbados mentioned the declining insurability and thus recoverability of climate-related harms in susceptible areas. The Netherlands inspired regard for climate-induced displacement and shared its ground time with a youth consultant. The Prepare dinner Islands famous the racially disparate impacts of local weather change. Brazil famous that it had devised a technique to quantify historic accountability. Chile made a richly cross-referenced argument for extraterritorial human rights obligations. Ghana and Sierra Leone referred to as for debt cancellation. Slovenia centered its contribution completely on the suitable to a wholesome atmosphere. And a number of other States additionally referred to as for consideration to gendered impacts and the rights of future generations.
The above doesn’t present a whole abstract of those complicated proceedings. Nonetheless, it units the stage for wanting extra carefully at a number of essential points at stake earlier than the Court docket.
Central Factors of Competition
The connection between worldwide local weather regulation and different regimes
A central level of rivalry in these proceedings involved the interaction of the assorted regimes concerned – or, extra particularly, the query of whether or not the Paris Settlement both supersedes or enhances States’ obligations beneath human rights regulation, customary worldwide regulation, and the regulation of the ocean. In essence, some States argued that different obligations must be levelled down till they require nothing past the Paris Settlement’s binding obligations. For instance, Germany sought to restrict the scope and content material of human rights regulation by arguing that “States fulfilling the Paris Settlement thereby concurrently fulfil their human rights obligations.” Related arguments have been made concerning the customary no-harm and due diligence guidelines. Australia, the United Arab Emirates, the US of America and the UK made numerous arguments to the impact that these guidelines both didn’t apply to greenhouse fuel emissions, or didn’t require something past the obligations within the Paris Settlement. The same argument was additionally made (Saudi Arabia) regarding reparations, to the impact that the customary guidelines codified within the Draft Articles on Duty of States for Internationally Wrongful Acts (ARSIWA) had been displaced by the Paris Settlement’s provisions on loss and injury.
Most States objected to those interpretations, arguing that the Paris Settlement alone didn’t characterize the total extent of States’ obligations. They referred variously to the truth that no such intention was expressed on the time of adoption, that the Paris Settlement doesn’t comprise secondary guidelines describing the implications of a violation, and that human rights function in its preamble. States additionally drew on the precept of harmonious interpretation or systemic integration beneath Article 31(3)(c) of the Vienna Conference on the Regulation of Treaties, arguing that it requires not levelling-down, however a mutual strengthening of relevant obligations. Mexico and Costa Rica additional clarified that harmonization means acknowledging the restrictions of the Paris Settlement, and making a coordinated response that fills gaps in worldwide local weather regulation and creates accountability.
In rejecting the concept that the Paris Settlement constitutes the sum of States’ local weather obligations, many States referred to the ITLOS’s local weather opinion, which rebuffed the argument that the worldwide local weather regime constitutes a lex specialis to the regulation of the ocean. There, the ITLOS famous that it “doesn’t think about that the Paris Settlement modifies or limits the duty beneath the [UNCLOS].” This argument was reiterated by Bangladesh, which strongly objected to a lex specialis argument, arguing that the applying of this rule requires a battle between totally different norms, which was not current right here. Albania equally inspired the Court docket “to reject decisively the self-serving rivalry that key human rights treaties needn’t be thought-about.” On the identical time, a small minority of States, particularly Russia and China, challenged the ITLOS opinion.
The existence and software of customary worldwide regulation
These proceedings draw on a number of guidelines of customary worldwide regulation, particularly the well-established obligation to stop vital hurt to the atmosphere (the “no-harm rule”), which is accompanied by an obligation of due diligence in minimizing corresponding dangers.
Some developed States disavowed the existence of the customary “no hurt” rule. Belize neatly summarized the six primary arguments in opposition to a customary obligation to stop climate-related hurt: first, “that greenhouse fuel emissions are by some means the flawed type of hurt and thus fall exterior the prevention obligation”; second, that the content material of the due diligence obligation just isn’t identified; third, that it doesn’t apply as a result of the Paris Settlement is a lex specialis; fourth, that customized is displaced by the precept of harmonious interpretation; fifth, that compliance with the worldwide local weather regime satisfies all different obligations; and sixth, that the UNFCCC and Paris Settlement set up a self-contained regime, leaving no room for the applying of different parallel guidelines.
These arguments have been contested all through the proceedings. Nonetheless, some States, for instance the US, objected strongly to the arguments primarily based on customary regulation made within the case – doubtless laying the groundwork for a persistent objection argument. Others, like France and Germany, questioned the temporal start line of customary obligations. Germany and Switzerland argued that any customary obligations couldn’t predate the primary IPCC report, which was printed in 1990; this argument was repeated a number of occasions through the proceedings to contest accountability for historic emissions.
The interpretation of the Paris Settlement
A number of States additionally put ahead their very own interpretations of the Paris Settlement. In its intervention, the UK described the argument of China, Kuwait, the US, and Saudi Arabia on this regard as in search of to “empty that Settlement of significant content material.” The UK’s view was that these States’ arguments sought to erode cornerstones of the Paris Settlement – rejecting the CBRD-RC precept, disputing the Article 4(2) obligation to pursue mitigation measures, and snubbing the rules of development and highest doable ambition in mitigation measures. Some, like China, emphasised a textual temperature aim starting from 1.5°C to 2°C as an alternative of the 1.5°C aim at the moment prioritized by COP consequence selections and IPCC studies.
These discussions should not mapped comprehensively right here, however it was clear that the precept of CBRD-RC was of nice concern to developed States, for instance Switzerland, which argued that this precept must be dynamic and never centered on historic emissions. Going even additional, the US argued that CBDR-RC just isn’t a authorized precept, and that it doesn’t suggest a differentiation of commitments between developed and creating international locations. This, as Singapore famous, runs opposite to the lengthy pedigree of this precept throughout totally different treaties.
Human rights, particularly the suitable to a wholesome atmosphere
As famous above, a number of developed and high-emitting States argued that human rights regulation couldn’t apply to the impacts of their greenhouse fuel emissions, whether or not historic or present. The consultant of Namibia described these arguments as “grossly insensitive and self-serving,” in addition to incorrect as a matter of regulation. In doing so, he drew on the 2024 KlimaSeniorinnen judgment of the European Court docket of Human Rights (ECtHR), which was cited a number of dozen occasions in the midst of the proceedings and which confirmed that compliance with the Paris Settlement doesn’t exhaust State obligations within the context of local weather change.
Very like the no-harm rule, human rights regulation could show central to the Court docket’s opinion. The proceedings relate to the rights enshrined in numerous U.N. devices, together with rights to meals, water, life, training, well being, and tradition, amongst others. It might additionally acknowledge the rights of future generations. And, as Singapore famous, it might draw on the U.N. Conference on the Rights of the Baby, which, though not a part of the query requested to the Court docket, enjoys near-universal ratification – very like the Paris Settlement. Moreover, many States referred to the function of the human proper to a clear, wholesome and sustainable atmosphere. A number of States argued that this proper had crystallized right into a norm of customary worldwide regulation, emphasised its central significance for shielding different human rights or, within the case of Portugal, referred to as for its regional recognition within the Council of Europe. In the meantime, the US and Russia rejected the existence of such a proper beneath worldwide human rights regulation, whereas Canada argued that it had no internationally agreed content material regardless of its non-binding recognition by the U.N. Common Meeting in 2022, and Germany argued that the suitable was purely non-binding.
A Preliminary Evaluation
This listening to concludes “the 12 months of local weather in worldwide courts” and places the existential dangers going through climate-vulnerable small-island creating States on the world stage. A number of the counterarguments – e.g. contesting the applicability of the no-harm and due diligence rules and the ARSIWA, minimizing the obligations within the Paris Settlement and the UNCLOS, and in search of to disapply human rights regulation – obtained fast consideration. States that contested the applying of those guidelines offered cascading argumentation, hedging in opposition to numerous doable outcomes and emphasizing the primacy of the Paris Settlement whereas narrowly decoding the binding obligations contained therein.
Strikingly, these arguments seem to return from a minority of the events showing earlier than the Court docket. Notably few States contested the existence and applicability of core authorized rules, such because the no-harm rule, due diligence and CBDR-RC, or the human rights impacts of local weather change. Developed and high-emitting States centered as an alternative on arguments supposed to shift accountability elsewhere, with just a few – e.g. the US – seeming to pave the way in which for “persistent objector”-style arguments. Total, in different phrases, the majority of disagreement involved the interpretation of the related rules, not their applicability, and the apportioning of reductions and reparations obligations. Events additionally made in depth references to the local weather case-law of worldwide, regional, and home courts and tribunals, as soon as once more underscoring the intensive inter-regime judicial dialogue that characterizes local weather circumstances.
Admittedly, the questions raised earlier than the ICJ are removed from resolved. A number of the ideas invoked, like CBDR-RC, are the results of protracted and delicate negotiations, and apportioning shares of historic and present accountability for local weather change stays notably thorny. On the identical time, the prevailing worldwide local weather regime has not succeeded in resolving these points or avoiding very actual climate-related harms and dangers that set off the applicability of different authorized regimes. From the angle of human rights regulation, the concept that the Paris Settlement precludes the applying of all different worldwide regulation has already been rejected by the ECtHR, amongst others. Certainly, this argument is flawed not solely as a result of the Paris Settlement references human rights in its preamble, and never solely as a result of there is no such thing as a vital battle between the 2, but additionally as a result of (I might argue) human rights regulation just isn’t a basic order that recedes behind the extra specialised Paris Settlement. In reality, shifting the main focus to the impacts at stake, and to safeguarding human lives, livelihoods, and well-being, renders human rights regulation the extra specialised order.
In the end, the truth that these are advisory opinion proceedings could show notably related. Due to the character of those proceedings, the Court docket needn’t discover any particular person State accountable for the impacts of its greenhouse fuel emissions, or calculate how a lot it owes when it comes to reparations. As a substitute, it’s requested to make clear authorized obligations and rules – and the argumentation of nearly all of States has proven that that is each possible and urgently vital.
As well as, whereas the arguments mentioned in these proceedings replicate a number of entrenched debates definitely acquainted to worldwide local weather negotiators, it’s price noting that these proceedings are totally different from a COP-style negotiation in a number of necessary methods. Not solely have all collaborating events been heard by the Court docket on equal footing, however this has taken place in a clear approach: written and oral pleadings have been made publicly accessible. This makes it doable to investigate States’ climate-related positions in an unprecedented approach. And importantly, these proceedings should not a negotiation – they’re within the palms of a judicial decision-maker with the power to offer authoritative solutions on the broadest vary of worldwide authorized questions regarding local weather change to return to a courtroom to this point.
