Nations turn to ICJ for clarity on climate accountability

Almost 100 countries and 12 international organizations have appeared before the International Court of Justice, or ICJ, over the past two weeks to get clarity on the legal duties that emitting countries have to combat climate change — and pay for the consequences of failing to do so. These clarifications could lead to new international legal obligations for climate action that emitting countries have to abide by. “It’s the biggest hearing ever in the history of court written statements,” said Jan Yves Remy, an international trade lawyer and head of the St. Lucia delegation. The case is, in fact, the largest the United Nations has ever seen. Each participant had 30 minutes to make a statement. With over 100 participants, these statements ran from Dec. 2-13. The case was spearheaded by the Pacific island nation of Vanuatu, which lobbied United Nations member countries. In 2023, they advanced a resolution laying out their full request for an advisory opinion from ICJ, and UNGA endorsed the request in March of that year. Once countries had the endorsement and a timeline for the case, statements started flowing in. By April 2024, 91 statements had already been filed to ICJ. Another 62 were filed by August. “This is our only home. We cannot leave,” said Ara Kouwo from the village of Veraibari, in Papua New Guinea. “In my lifetime I have seen the seas get higher and higher, destroying our coconut tree forest, our traditional burial grounds, our school, our health clinic, and our houses.” The world’s largest emitters, including the United States and Canada, also took the stand, arguing that countries should focus on carrying out the existing treaties such as the Paris Agreement rather than creating new legal obligations for countries. “The U.N. climate change regime embodies the clearest, most specific, and the most current expression of states’ consent to be bound by international law in respect of climate change,” said Margaret Taylor, legal adviser to the U.S. Department of State. By referring specifically to the “U.N. climate change regime,” her statement suggests that the existing $300 billion agreement made at the United Nations Framework Convention on Climate Change, or COP29, last month, is sufficient support to address the problem. India also chimed in, saying that the court should be careful about piling on more legal obligations to countries. “The court should avoid the creation of any new or additional obligations beyond those already existing under the climate change regime,” said Luther Rangreji, India’s legal representative. But global south countries and climate advocates were extremely disappointed by the agreement made at COP29. Remy says that the ICJ case is another route that nations can take to get the support they need. “We’re not getting anywhere in the negotiations,” said Remy. “SIDS [Small Island Developing States] threatened to walk out. They went to the negotiations with a $1.3 trillion demand. What did they come out with? Well, $300 billion up to 2035. What do we have to lose? It’s free to engage the court.” ICJ is expected to release a decision in January. But whatever it decides, the outcome will be nonbinding. Still, supporters of these protections say that it would carry weight in terms of moral authority. “The ICJ’s opinion could shape the trajectory of global climate litigation, paving the way for a new era of decisive action to tackle the global climate crisis,” said Joy Reyes, a policy officer at the Grantham Research Institute on Climate Change and the Environment. “It could clarify States’ obligations under international law. National courts often look to the ICJ for guidance, making it likely that the opinion will influence legal claims aimed at holding governments accountable.” Vulnerable states are hoping for a series of clarifications to these obligations. For example, ICJ could clarify the “no harm” principle, which stipulates that states must not cause transboundary harm to other states. Remy said that ICJ could specify what threshold of emissions would constitute a breach of this and what the consequences of that breach would be. Another possible clarification is that ICJ could include climate-related harm and protection under human rights treaties, rather than just climate agreements. That could include responsibilities for mitigation and adaptation, requiring that states protect citizens’ right to life, health, and shelter from climate-related harm. Remy said that the case brings “added gravitas” to what’s happening both as a climate issue and also as a human rights issue.