By
Athanasia Santikou
Africa-Press – Eritrea. On July 23, the International Court of Justice (ICJ) released a highly anticipated and widely debated Advisory Opinion on the obligations of states in respect of climate change.
In 2023, a group of students and youth activists, in coalition with legal experts and NGOs, took the initiative to raise the issue of climate change and its destructive impact. The General Assembly of the UN adopted by consensus a resolution entitled “Request for an Advisory Opinion from the International Court of Justice on the Obligations of States in Respect of Climate Change.”
As atmospheric temperatures rise, anthropogenic GHG emissions continue to increase, and no clear guidelines are drawn in State practice, the destruction of the environment and the extinction of low-yielding States (initially) become inevitable.
UNFCCC, Kyoto Protocol, and Paris Agreement: cornerstones of climate change law
In the decade of 1990, the results and impact of climate change began to emerge. In 1994, at the Earth Summit in Rio, the UNFCCC was adopted, as the foundational legal instrument of Climate Change Law. The ultimate goal of the UNFCCC, according to Article 2, is to achieve stabilization of GHG concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. However, the Convention proved insufficient to achieve the target, as it did not include any binding enforcement mechanism to ensure compliance. Subsequently, in 1997, although the Kyoto Protocol introduced legally binding targets for the reduction of GHG emissions, it had limited participation and object. In 2015, a shift was made, through the adoption of the Paris Agreement.
The interpretation of the Paris Agreement is a key aspect of the implementation of climate change law. The legal characterization of the Agreement has been controversial since the adoption of the text. Participant states in the proceedings of the Advisory Opinion made submissions with differing interpretations of the instruments in question.
The Paris Agreement is an international treaty without legally binding objectives, meaning that it has a legally binding framework without binding objectives. The dominant interpretation is based on a textual approach; the language used (“efforts,” “aims”) indicates an aspiring goal to respond to the threat of climate change without making the target legally binding. This controversy raises many questions regarding the implementation of the Paris Agreement, particularly at the level of international responsibility. Are states obliged to follow a course of conduct consistent with the objectives set in the agreement? Could states be held internationally responsible in case of non-compliance with the provisions of the agreement? All these questions have finally found their answers in Advisory Opinion.
In order for the Court to rule on the legal value of the Paris Agreement, it took into account the UNFCCC and the Kyoto Protocol.
According to the A.O., the key link among those three instruments is deeper than their relation to climate change; they complement each other. This perspective introduces a dimension to the interpretation and implementation of climate change instruments. The UNFCCC establishes the ultimate objective: the need to respond to the threat of climate change. The Kyoto Protocol and the Paris Agreement supplement and specify the general obligations contained in the UNFCCC. The conflicting dimension of these two instruments, in respect of their legal value, has come to an end. The voluntary nature of the provisions included in Paris A. does not absolve the enforceability and the legal obligations of the Kyoto regime.
NDCs: a legal strategy or a procedural obligation?
Nationally Determined Contributions, known as NDCs, are declarations under the Paris Agreement. NDCs are procedural obligations that embody the highest possible efforts by each state to reduce its national GHG emissions and to adapt to the impacts of climate change as soon as possible. In the context of interpreting the Paris Agreement, NDCs have constituted the most important, yet legally “weakest,” mitigation strategies. State practice demonstrated a lack of consensus regarding the binding nature of the targets set.
Surprisingly, albeit with a tone of relief, the ICJ ruled that the voluntary nature and state discretion in the process of making and enforcing NDC targets are limited. NDCs are not merely a procedural obligation to prepare, maintain, and communicate these declarations every five years. Notably, the Court concludes that NDC targets are not entirely discretionary; rather, they must achieve the individual targets set, as well as realize the overall mitigation target (Art. 2 Paris A.).
This obligation is based on the determination of key principles, such as the principles of Common but Differentiated Responsibilities and Respective Capabilities, the Precautionary Principle, Sustainable Development, Equity, and Intergenerational Equity. How could an LDC (Least Developed Country) be expected to reduce the same amount of GHG emissions, or bear the same extent of international responsibility, as an Annex II State? The IPCC itself underlined the essential role of the aforementioned principles in order to determine the existence and subsequently the extent of each state’s responsibility.
The legal “handcuffs” of international responsibility
The Court found it necessary to address the determination of state responsibility in the context of climate change. General questions on attribution and causation arose in the submissions of the participant States; the implications of the plurality of global emitters and whether responsibility can be traced and attributed to one specific entity, as well as the scientific certainty distinguishing climate effects attributable to anthropogenic GHG emissions from those resulting from natural climate variability.
The Court observed that, although it cannot give a comprehensive overview on the law of State Responsibility, as that would require a case-by-case examination, it does have the jurisdiction to assess certain actions or omissions that may give rise to state responsibility in the context of climate change.
The Advisory Opinion relied on ILC Articles on State Responsibility, emphasizing the provision that “the conduct of any organ of a State must be regarded as an act of that State”. State Responsibility is not governed by the emission of GHG per se, but by the breach of international obligations and norms pertaining to the protection of the climate system. This marks one of the most important observations of the Advisory Opinion, as this view does not establish a new causal link theory in the context of climate change, but a causal nexus between the wrongful act and the injury caused is sufficient.
Notably, private entities can no longer “hide” behind their status as non-subjects of International Law; States may be held internationally responsible if they fail to exercise due diligence by not taking the appropriate and necessary adaptation measures in relation to the emissions caused within their jurisdiction by private actors. Consequently, the Court indirectly wishes to intervene in national regulatory and legislative measures, safeguarding compliance with international environmental treaties.
Is the Advisory Opinion where we draw the line?
It was the first time that the Court ruled on an issue of climate change, even if only in the form of an advisory opinion. This marks the inaugural step of the climate change “ladder” and paves the way for any future contentious cases concerning this global challenge. Although an advisory opinion is not legally binding upon states, it carries significant weight in international law.
However, further action is required; the compliance mechanism embodied under the UNFCCC and the Paris Agreement has never been activated, nor have they established legally binding enforcement procedures to resolve disputes regarding climate change obligations. It is likely that the Advisory Opinion will encourage more states to pursue judicial remedies before the World Court. It may also serve as a basis for examining the establishment of a judicial framework, similar to UNCLOS, to facilitate recourse to judicial settlement under binding mechanisms.
The Advisory Opinion marks the dawn of placing the response to climate change among the highest national priorities and essential interests. Today, a small island sinks on the other side of the world; tomorrow—an entire continent. Let this Advisory Opinion prove that international law can, and will, work for the disadvantaged.
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