What did the ICJ opinion state on climate obligations?

The Hindu

6 days ago

The advisory opinion of the International Court of Justice (ICJ) on the obligations of countries to reduce anthropogenic greenhouse gas emissions, and the legal consequences of the harm occasioned by their failure to meet these obligations, on July 23 has been the subject of much discussion. While it is a welcome affirmation of the multilateral climate regime at a time when the U.S appears to have damaged it through its withdrawal from the Paris Agreement, it also raises questions on, inter alia, its interpretation of the temperature goals of the Paris Agreement and its occlusion of the development imperatives of the global South.
How has it upheld the case for the global South?
The ICJ's opinion has several elements that the global South, including India, should be able to welcome. First, the Court has emphasised the significance of the totality of the climate regime, including the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol and the Paris Agreement. This is in sharp contrast to the view of developed countries that have argued for sidelining the Convention and dismissing the Protocol, stating that the Paris Agreement had become the sole binding instrument of the multilateral climate regime. Across several paragraphs in its opinion, the Court has set out how the obligations of countries, especially those of developed nations, flow from various articles of the UNFCCC, particularly the provision of extending climate finance, technology transfer and capacity building to developing countries by developed nations. In underlining the foundational role of the UNFCCC, the Court has also reiterated the significance of the Convention's Annex-I and Annex-II, noting that the developed countries listed therein will continue to have additional obligations compared to the rest of the world. This is a firm rebuff, not only to the governments of the global North, but also to a vocal section of climate academia, that had proclaimed the end of Annex-based differentiation since the Paris accord was signed.
In yet another affirmation of the global South's perspective, the ICJ opinion identifies the principle of Common But Differentiated Responsibilities and Respective Capabilities (CBDR&RC), drawing on Article 3 of the Convention, as the 'core guiding principle for determining the implementation of the climate change treaties'. Further in para 152, it affirms universality to the CBDR&RC principle, noting that it 'guides the interpretation of obligations under international environmental law beyond its express articulation in different treaties', opening up the possibility for extending the principle to arenas like biodiversity.
Additionally, the ICJ's opinion notes the qualification to differentiation between developed and developing nations introduced by the Paris Agreement with the addition of the phrase, 'and in the light of national circumstances' to the term CBDR&RC. The Court views the qualification as a nuance which points out that what constitutes a 'developed' or 'developing' nations is not static. This will undoubtedly be a bone of contention in further interpretations of this opinion.
What about the temperature goal?
While these reaffirmations of the fundamental principles and values of the climate regime are noteworthy there is also much in the opinion that conforms to the narrative that developed countries, allied with some of the small island states and a range of vulnerable developing countries, have attempted to build over the years in interpreting the Paris Agreement.
The opinion insists that the temperature target for limiting global warming as in Article 2.1 (a) of the Paris Agreement, no longer holds in defining the obligation of states. Article 2.1 clearly designates 'well below 2 degrees Celsius above pre-industrial levels' as the primary goal, while 'pursuing efforts to limit the temperature increase to 1.5 degrees C.'
However, the Court argues that two paras from decisions of the 26th and 28th Conference of Parties of the UNFCCC, in which Parties have expressed agreement with the need to pursue efforts to limit temperature increase to 1.5 degrees Celsius, constitute an agreement among Parties to rewrite the temperature goal of the Paris Agreement itself. Hence, the opinion concludes, Parties' mitigation efforts must be aligned with collectively achieving the 1.5 degrees Celsius goal and not the range provided in the Agreement. This is a strange conclusion considering that the 1.5 degrees Celsius threshold is likely to be passed in a very few years. Nor does the opinion engage itself with the consequences of the breach of the 1.5 degrees Celsius goal. Even to lay opinion, it appears very odd that decisions taken in implementing an agreement should be interpreted as modifying the terms of the agreement itself.
Much of the Court's enthusiasm for the 1.5 degrees Celsius target appears to stem from uncritical cherry-picking of a few headline statements from the Sixth Assessment Cycle reports (AR6) of the Intergovernmental Panel on Climate Change (IPCC). The Court has not considered it necessary that the IPCC reports themselves should be subject to scrutiny through the lens of equity. This is evident when it uncritically cites the IPCC's global target of GHG emissions reduction of 43% below 2020 levels by 2030 and 65% by 2035 for limiting temperature rise to 1.5 degrees Celsius. The recently concluded annual climate meeting of the UNFCCC held at Bonn, Germany, itself has now acknowledged the lack of equity and CBDR&RC in such projections.
Has the Court broken new ground on enforcing obligations?
Despite the extensive discussion on the obligations of states, in the context of climate laws and more generally in international law, the opinion does not articulate a more stringent framework of enforcement. In direct continuity with the established interpretation of the Paris Agreement by the global North, it holds that the provision of means of implementation as well as domestic mitigation action are only obligations of conduct (this means a duty which is to be performed towards achieving an outcome rather than guaranteeing the outcome itself). Only procedural aspects of the Paris Agreement, such as the timely and periodic submission of Nationally Determined Contributions are held to constitute stronger obligations of result. The opinion argues that even as obligations of conduct, the requirements on countries to meet their commitments can be sufficiently stringent. However, it depends on suitable courts with the requisite jurisdiction to enforce them and is contingent on the circumstances of every individual case.
At best, the Court's opinion may be welcomed for reiterating the original intent of the Paris Agreement, in the face of the growing reluctance of developed nations to meet their obligations, but it breaks no significant new ground in this regard. Given the lack of appetite for climate action in the global North, and their opposition to even these weak obligations, the reiteration by the Court is undoubtedly of some value.
What are some of the gaps in the opinion?
The most striking lacuna in the opinion is its near-total sidelining of the twin challenge that global warming poses to the development of the global South, that is extensively discussed even in the IPCC. On the one hand southern nations will be increasingly unable to meet their energy needs for rapid poverty eradication and sustainable growth in the absence of adequate carbon space, while on the other hand low-carbon development requires finance and technology on a scale that remains out of reach.
As Judge Xue Hanqin notes, in concluding her separate opinion, 'the Advisory Opinion fails to point out that, for peoples and individuals of the present and future generations affected by the adverse effects of climate change, the ultimate solution to guarantee them a clean, healthy and sustainable climate lies in a supportive and open international economic system that would lead to sustainable economic growth and development in all states based on international co-operation between developed and developing states.'
With the opinion falling short on these two key issues for the global South, its qualification that equity and CBDR&RC would introduce no new obligations but only guide the interpretation and implementation of climate treaties, should be a matter of concern for developing countries. Much of the enthusiasm in global civil society for the opinion, stems from the prospect of further litigation at the national or regional level, with the opinion allowing the possibility that affected countries such as small island states could claim reparation or compensation. However, the opinion also makes clear that these would require independently establishing attribution, 'wrongfulness' and causation regarding the actions of Parties held responsible for harm, though it opens the door to their more expansive interpretation.
On the issue of concerted global climate action though, and at the climate negotiations, it is unlikely that the advisory opinion would substantially move the needle, reproducing existing fault lines rather than overcoming them. As several of the separate opinions from various judges themselves indicate, the opinion may represent a missed opportunity rather than a game-changing intervention in the global climate discourse.
T. Jayaraman is at the M. S. Swaminathan Research Foundation, Chennai. Tejal Kanitkar is at the National Institute of Advanced Studies, Bengaluru. Views expressed are personal.