Handful of countries responsible for climate crisis, top court told

Particularly vulnerable countries were unanimous in denouncing the lack of decisive mitigation action and the devastating consequences thereof on their people. Barbados reminded the Court that climate change is “not a speculative matter, it is a matter of life and death for small island developing States” who have nowhere to go to escape sea-level rise. The Bahamas asked who would take their people when their islands are wiped out, and Bangladesh urged the judges to “guide the world away from the precipice.” In legal terms, they stressed that all countries have a duty under customary international law to prevent significant transboundary harm to the environment of other countries, that this duty includes harm from climate change, and that large greenhouse gas emitters have breached this duty.

 

 

Others charted a different argumentative path. Saudi Arabia noted that States are obliged to formulate nationally determined contributions (NDCs) under the Paris Agreement on climate change, but stressed that the content and implementation of NDCs are not legally binding and that there is “no basis whatsoever” to establish a limit on fossil fuel extraction and production. Australia argued that greenhouse gas emissions lack the direct causation and proximate temporal effects typical of conventional transboundary harm. In relation to the rights of future generations, Germany expressed the view that the goal of human rights treaties is to protect “actual victims of concrete violations, not abstract persons from abstract risks.”

 

 

During a hearing at the Peace Palace in The Hague, which began on Monday, Ralph Regenvanu, Vanuatu’s special envoy for climate change and environment, said responsibility for the climate crisis lay squarely with “a handful of readily identifiable states” that had produced the vast majority of greenhouse gas emissions but stood to lose the least from the impacts.

The court heard how Pacific island states such as Vanuatu were bearing the brunt of rising sea levels and increasingly frequent and severe disasters. “We find ourselves on the frontlines of a crisis we did not create,” Regenvanu said.

The hearing is the culmination of years of campaigning by a group of Pacific island law students and diplomacy spearheaded by Vanuatu. In March last year the UN general assembly unanimously approved a resolution calling on the ICJ to provide an advisory opinion on what obligations states have to tackle climate change and what the legal consequences could be if they fail to do so.

Over the next two weeks, the court will hear statements from 98 countries, including wealthy developed states with the greatest historical responsibility for the climate emergency, such as the UK and Russia, and states that have contributed very little to global greenhouse gas emissions but stand to bear the brunt of their impact, including Bangladesh and Sudan as well as Pacific island countries.

The US and China, the world’s biggest emitters, will make statements too, even though neither fully recognises the court’s authority.

Regenvanu told the court that states continued to emit vast amounts of greenhouse gases in spite of “increasingly dire warnings” from scientists, noting that emissions had increased by more than 50% since 1990.

The court will publish written statements submitted to it as part of the advisory opinion process, a number of which will include personal testimonies from people affected or severely threatened by climate change.

Ilan Kiloe, the legal counsel for the Melanesian Spearhead Group, a regional subgroup that includes Fiji, Papua New Guinea, Solomon Islands and Vanuatu, said: “The harsh reality is that many of our peoples will not survive.”

Kiloe said the climate crisis threatened the right of states to self-determination and that the injustice of climate change was inseparable from colonialism, which these countries had been subjected to by “a few readily identifiable states”.

Cynthia Houniuhi, the president of Pacific Island Students Fighting Climate Change, the youth group that sought the advisory opinion, said young people had looked to the Paris agreement as an instrument of hope when it was passed in 2015 but it had since been “hijacked” by fossil fuel interests.

“No good faith understanding of the UNFCCC and the Paris agreement can be consistent with the conduct of large emitters,” she said.

As well as states, a select few organisations have been given permission to give statements. These include Opec, the World Health Organization, the EU and the International Union for Conservation of Nature.

The ICJ is one of three international courts tasked with producing an advisory opinion on climate change. The ICJ says its advisory opinions are not binding. Experts stress that they clarify rather than create new law and will be referred to as authoritative documents in future climate litigation and during international climate negotiations.