At ICJ climate change hearing, global giants and oil nations strike evasive note

Halfway into landmark climate change hearings at the International Court of Justice, the proceedings have turned into what senior attorney Joie Chowdhury described as a David versus Goliath battle.

Led by Vanuatu, a group of small island nations has asked the United Nations court in The Hague to hold the major greenhouse gas-emitting countries accountable for failing to tackle climate change. Hearings started on December 2.

This is the largest case ever before the International Court of Justice. It will involve 110 states and intergovernmental organisations.

However, smaller countries say that the US, Australia, Germany and Saudi Arabia are trying to sweep under the carpet their historical responsibilities to curb fossil fuel emissions. They are also accused of trying to erase the distinction between the duties of these countries that have generated more greenhouse gas emissions that contribute to climate change and those of other countries.

The first week’s hearings were marred by anger and disappointment about the statements of some of the world’s greatest polluters – notably the US and China, which reiterated their obligations under existing treaties and commitments that have failed to redress the climate change crisis.

The Earth’s temperature has risen 1.2 degrees celsius since before the industrial revolution. The consequences, scientists say, include melting polar ice caps, rising ocean levels, severe storms, water scarcity and shrinking biodiversity.

The US testimony drew sharp responses as it claimed that the Paris Agreement on containing climate change adopted by 196 nations in 2016 contains only “procedural obligations”.

The US contended that the legally binding treaty requires countries to publish Nationally Determined Contributions to reduce their carbon emissions but does not require them to actually achieve the targets they have committed to. It does not even require countries to achieve the temperature goals set out in the Paris Agreement to pursue efforts to limit the temperature increase to 1.5 degrees celsius above pre-industrial levels.

In a bid to evade any responsibility for being the largest cumulative emitter of greenhouse gases, the US argued that climate change was too complex and its causes and effects were too diffuse to attribute to any one country. Echoing what climate change deniers often argue, the US suggested that “climate attribution science is evolving but still imprecise”.

In addition, it maintained that international human rights law does not require states to mitigate human-generated greenhouse gas emissions and that international human rights law does not guarantee a right to a healthy environment.

Crucially, in its written submission, the US seemed to reject any legal historical responsibility. The argued that it was not until the late 1980s “that a general awareness developed among states of the significant global risks that could arise from global warming resulting from increased atmospheric concentrations of GHGs [green house gasses] due to human activities”.

Some countries, such as Kuwait, denied that they had any responsibility for containing climate change. It defended fossil fuels and rejected any legal obligation for phasing out their production and use.

It maintained that Kuwait’s State-owned Petroleum Corporation “is one of the least emission-intensive oil and gas producers worldwide, which has already undertaken a number of significant projects to reduce greenhouse gas emissions with a view to achieving the net zero emissions target by 2050”.

Countries such as Canada wanted to restrict the application of human rights to climate goals. China and Brazil were reluctant to be drawn into accepting responsibility for historical emissions and for climate mitigation.

However, France redeemed itself by highlighting intergenerational equity and recognising the vital role of the court in clarifying the application of multiple forms of international law to climate change, said campaigner Noemi Zenk-Agyei, co-founder of Union for the New Generation of African and European Youth.

Many of the oral testimonies submitted to the court pointed out that colonialism was linked to the need for reparations for loss and damage for the former colonies.

The oral testimonies began on December 2 at the Peace Palace in The Hague with an assertive opening statement from Vanuatu’s special envoy for climate change Ralph Regenvanu who described this as the “ most consequential case in the history of humanity”.

In their statements Vanuatu and the Melanesian Spearhead Group squarely pointed to the rise in global greenhouse gas emissions by over 50% since the 1990s and the role of a “handful of readily identifiable countries” being responsible for most of the historical and current greenhouse gas emissions.

There will be 93 oral statements from various states as well as a joint statement by five Nordic States, and nine intergovernmental organisations including the European Union and the World Health Organisation.

While the proceedings were “beyond frustrating” as some countries continued to deny accountability, senior attorney Chowdhury contended that there is a causal link between the harm and the compelling narratives from states that were suffering from damage and loss.

But these hearings could set a legal blueprint for rightful reparations for loss and damage from climate change, Chowdhury said. Vishal Prasad, the director of the Pacific Islands Students Fighting Climate Change, said that while Vanuatu and the nations of the Melanesian Spearhead Group face an existential threat climate change, the hypocritical attitude of the major greenhouse gas-emitting countries reflected a grave disrespect to Vanuatu and the other nations whose existence is threatened by climate change, as rising ocean levels threaten to inundate them.

Vanuatu’s special envoy Regenvanu expressed disappointment at the statements made by Australia, the US, Saudi Arabia, and China during the proceedings. “Let me be clear: these treaties are essential, but they cannot be a veil for inaction or a substitute for legal accountability,” he said. “There needs to be an accounting for the failure to curb emissions and the climate change impacts and human rights violation that failure has generated.”

India made its oral submission on expected lines on December 5. Luther Rangreji reiterated India’s position on the obligations of the developed countries and the importance of climate finance. India’s contribution to climate change is less than 4% historically, he said and currently, its per capita greenhouse gas emissions are less than half of the global average.

He appealed to the court to “exercise due caution to avoid devising new or additional obligations beyond what is already agreed under the existing climate change regime”. In doing so, India was expressing its desire to maintain the framework of the United Nations conventions and frameworks on climate change, the Kyoto Protocol of 1992 and the Paris Agreement.

This week’s testimonies will include representatives of the developed countries such as the UK, Japan, the European Union and New Zealand and Asian states such as Nepal and Pakistan.

Meena Menon is an independent journalist, author and visiting fellow at the Leeds Arts and Humanities Research Institute (LAHRI), University of Leeds, UK.