Landmark Public Hearings on the Obligations of States in Respect of Climate Change at the Hague: Highlights

A mere week after the 29th Conference of the Parties wrapped up in Baku, with results overall deemed unsatisfactory by the Global South, climate discussions were taken to a different stage: the Peace Palace, in the Hague, where the International Court of Justice (“ICJ”) held public hearings concerning the obligations of states to protect the climate system under international law.

On March 29th, 2023, as the result of a Vanuatu-led initiative of legal mobilization due to the Global South’s increased frustration with the shortcomings of the United Nations Framework Convention on Climate Change’s (“UNFCCC”) political process, the United Nations General Assembly (“UNGA”) adopted Resolution A/RES/77/276, which formally requests the ICJ to clarify the above mentioned obligations and examine legal consequences through an advisory opinion. This instrument aims to clarify the ICJ’s position on the legal question submitted to it.

It is important to note that, unlike judgments in contentious cases, which concern disputes between states, the ICJ’s advisory opinions are not legally binding. However, they are recognized as important guidance instruments in international law, since they nonetheless carry moral authority and are politically consequential. In this sense, the advisory opinion expected in 2025 should clarify the scope of states’ obligations with respect to climate change and legal consequences of past, present, or future breaches. Furthermore, the ICJ’s opinion might serve as valuable advice to enhance ambition in global climate action and provide instruments to shape national and international climate policies.

Other two international courts have previously received advisory opinion requests regarding climate change obligations; namely, the Inter-American Court of Human Rights (“IACHR”) and the International Tribunal for the Law of the Sea (“ITLOS”). Still, ICJ proceedings are a landmark in climate litigation given their broad scope, its general and universal jurisdiction, and the record-breaking participation levels registered. According to an ICJ press release, a total of 91 written statements and 63 written comments were filed in the ICJ’s registry. Between the 2nd and 13th of December, the 15 judges of the World Court heard oral statements of 96 countries and 11 regional organizations.

The issue of legal sources

Generally speaking, statements debated the role of the UNFCCC, environmental treaties (namely, the 2015 Paris Agreement), human rights law, customary law, and general principles of international law in defining states’ legal obligations.

Not all countries agreed on the sources from which international climate rights and obligations are drawn. For instance, Saudi Arabia rejected the relevance of the United Nations Convention on the Law of the Sea (“UNCLOS”), human rights treaties, the rights of future generations, and the International Law Commission’s (“ILC”) work on harmonization and systematization. Germany deemed future generations “abstract persons” facing “abstract risks”, hence contradicting the 2021 climate ruling of the German Constitutional Court. On the other hand, countries such as Chile, Bangladesh, Colombia, and Spain defended that the regimes overlap and cannot be understood in isolation.

Underrepresented voices and civil society participation

While a private meeting with scientists from the Intergovernmental Panel on Climate Change (“IPCC”) supported the ICJ in the goal of establishing an authoritative record of the facts, the states’ arguments went beyond traditional science. The ICJ bore witness to the experiences of the most vulnerable states, which showcased the threats to survival faced by communities at the frontlines of the climate emergency through photos, videos, and even cultural artefacts. In that aspect, the ICJ hearings served as a platform to ensure representation and amplify the voices of Latin American, African, and Small Island Developing States, which are particularly susceptible to the effects of climate change. Nevertheless, civil society’s access to the proceedings was fairly restricted to a limited number of observer seats in the public gallery.

The role of Nationally Determined Contributions

Nationally Determined Contributions (“NDCs”) were also a pressing topic in some countries’ arguments. Established by Article 4, Paragraph 2 of the Paris Agreement, the new generations of NDCs will be submitted by governments by early 2025. Among others, Antigua and Barbuda, Chile, and the Seychelles denounced the “insufficiency” of current NDCs to achieve the 1.5ºC goal. In their hearings, China, France, and Indonesia emphasized the need to prepare NDCs that reflect the highest possible ambition.

The disagreement on legal consequences

Divergences were particularly discernible in what concerns the legal consequences in the event of failure to prevent harm to the climate system. States from the Global South – namely, Mexico, Malawi, and Kenya – urged for climate reparations, notably financial compensation.

Emphasizing the need to tackle geographical and development inequalities, the African Union went as far as to propose debt cancellation as a form of restitution. The Federated States of Micronesia, India, and China highlighted the need to acknowledge climate responsibility in order to ensure the fair distribution of funds and an accountable base of contributors.

Moreover, suggestions of technology exchange and capacity building as a way to support developing nations dominated the hearings of Albania, Bangladesh, Colombia, Iran, Jamaica, the Maldives, the Netherlands, and others.

On the other hand, the majority of developed nations – as listed in the UNFCCC’s Annex 2 – were skeptical. France, for instance, stated individual attribution of responsibility does not fall under the ICJ’s mandate, asserting that climate finance and loss and damage efforts are grounded on international solidarity rather than international law. Canada and Russia regarded the current non-punitive, collaborative approach as the most suitable for the matter at hand and defended the non-retroactive application of actions predating the UNFCCC and the Paris Agreement.

The advisory opinion and the future of litigation

Sometime this year, the ICJ will deliver its advisory opinion on the climate responsibility of states and its legal consequences. Albeit the non-binding character of this instrument, its moral authority and political weight cannot be ignored.

Consequently, the ICJ’s clarifications are expected to not only set an important precedent in future cases of climate litigation, but also to shape the ambition standards of global climate action, domestic and international policies, and to assist in the untangling of the political stalemates through legal means.