International Court to Define Nations' Climate Responsibilities and Polluters' Consequences

The International Court of Justice (ICJ) is on the verge of delivering a landmark advisory opinion on climate change, a decision that is widely regarded as a pivotal moment in the evolution of international law. This will be the first-ever opinion from the ICJ on the topic, and it promises to reshape how nations understand their legal obligations regarding climate change and the consequences for those that fail to meet them.

After sifting through tens of thousands of pages of legal submissions and hearing two weeks of oral arguments in the ICJ's largest-ever case, judges are now finalizing their advisory opinion. Expected to span several hundred pages, this ruling will offer clarity on the legal responsibilities of nations to prevent climate change and the repercussions for those who have not fulfilled these obligations.

What Legal Framework Will Be Used?

The core of the debate lies in determining the legal framework that should guide nations' climate actions. The ICJ is expected to consolidate various strands of international environmental law into a cohesive and definitive standard. However, major polluters, including the United States, argue that the existing provisions under the United Nations Framework Convention on Climate Change (UNFCCC) are sufficient.

On the other hand, climate-vulnerable nations, such as Vanuatu, advocate for a broader approach, urging the ICJ to consider human rights law and the laws of the sea. Vanuatu emphasized that the ICJ, as the only international jurisdiction with general competence over all areas of international law, is uniquely positioned to provide a comprehensive legal answer.

What Are the Consequences for Polluters?

A more contentious question is what legal consequences, if any, should be imposed on countries that significantly contribute to the climate crisis. While the 2015 Paris Agreement does not explicitly provide for direct compensation for past damage, some nations, including wealthy ones, have agreed to establish a fund to support vulnerable countries dealing with the effects of climate change.

Climate-vulnerable nations, however, argue that the principle of international law—“ubi jus, ubi remedium” (where there is a wrong, there is a remedy)—should result in a cessation of harmful activities, a reduction in emissions, and monetary reparations. They also demand increased support for climate adaptation efforts, including a formal commitment to decarbonization and a timeline for achieving it.

Transboundary Harm and the 'No-Harm' Rule

Another key issue is the application of the “no-harm” rule in international law, which states that one state should not engage in activities that could cause damage to another. The ICJ must determine whether this rule applies to greenhouse gas emissions and climate change.

Major polluters argue that the “no-harm” rule does not apply to climate change due to the absence of a specific source of damage. However, others maintain that climate change should not be an exception. Recent legal decisions have increasingly linked human-induced climate change to severe impacts such as extreme weather, biodiversity loss, and rising sea levels.

When Did Governments Become Aware of the Risks?

A crucial debate during the oral hearings centered on when governments became aware of the harm caused by greenhouse gas emissions. The United States and Switzerland cited the late 1980s as the time when scientific evidence became clear. However, climate-vulnerable nations argue that research from developed countries indicated the dangers as early as the 1960s, which could affect the timeline for potential reparations.

Inter generational Equity and Future Generations

The concept of “intergenerational equity” has also emerged as a central theme. Young climate justice campaigners, supported by nations like Namibia, argue that the impact of climate change is not limited to the present but will affect future generations for decades or even centuries.

However, developed countries, such as Germany, contend that the rights of unborn people do not hold legal weight in international law. They argue that current generations cannot claim rights on behalf of future ones.

This advisory opinion will not only set a precedent for international climate law but could also influence how nations approach their climate responsibilities in the years to come. As the ICJ delivers its ruling, the world will be watching closely to see how these complex legal and ethical questions are addressed.