Will the ICJ hold major polluters responsible for contributing to climate change?

In the final week of the hearings at the International Court of Justice by vulnerable countries demanding climate justice, a poignant testimony came from the man who directed global responses to tame the Covid-19 pandemic.

Tedros Adhanom Ghebreyesus, director-general of the World Health Organization, recalled a conversation with a boy named Falou during a visit in 2019 to the Polynesian island-nation of Tuvalu.

Falou told Ghebreyesus about the discussions he and his friends were having about their uncertain future as rising ocean levels threaten to sink Tuvalu. Some of Falou’s friends contemplated leaving the island to seek refuge in Fiji. Others expressed their willingness to stay back.

“Falou’s words touched my heart, serving as a clear and poignant reminder of the challenges faced by children in the Pacific,” Ghebreyesus said. “Children should be children. I would have loved if Falou was laughing and playing and being a child, but he was not. They worry about the survival of their island homes due to the emissions produced by distant nations.”

Ghebreyesus emphasised that for the WHO, climate change is among the most significant health challenges facing humanity. Evidence collected by the WHO about the health impacts of climate change for over 25 years shows that the transmission of diseases such as malaria, dengue and cholera could significantly increase as weather becomes more extreme.

In addition, non-communicable diseases, including cancers and cardiovascular diseases, are associated with climate change and air pollution.

Starting from December 2, the court had heard the testimonies of the hundreds of people from all over the world as it considered two questions: what obligations do states have under international law to protect the climate system and what legal consequences should they face if they cause significant harm through their actions or inactions.

As the hearings concluded on Friday, a note of hope for intergenerational equity was struck by youth leaders who drove the campaign to bring the matter to the International Court of Justice.

The campaign “was born out of frustration with the inability” of the United Nations’ Conference of Parties processes “to deliver urgent climate action”, Vishal Prasad, the director of a group called Pacific Islands Students Fighting Climate Change, told the court.

He contended that “pursuit for climate justice requires determining the obligations of states but is incomplete without the requisite legal consequences. For young people, the demand for reparations is crucial for justice – we have inherited a planet in decline and face the grim prospect of passing on an even more degraded world to future generations.”

But there was some acrimony over the position of the United Kingdom that existing treaties on climate change adequately lay out states’ obligations to mitigate climate change. Despite overwhelming evidence from the WHO, the Intergovernmental Panel for Climate Change and other scientific sources about the problems that climate change is causing, the United Kingdom had made a “contemptuous intervention” directed at escaping “accountability and responsibilities for decades of climate harms”, noted the non-profit Centre for International Environmental Law.

The centre said that the United Kingdom had effectively asked the court to ignore both science and history on the overwhelming evidence about the effects of decades of fossil-fuel emissions.

By contrast, the European Union favoured the inclusion of other international legal provisions, not only the 2016 Paris Agreement to pursue efforts to limit the global average temperature increase to 1.5°.

It said that “all states parties, not merely those with the greatest capabilities, are required to work diligently together to curb anthropogenic emissions to the greatest extent possible…This collective effort, it said underscores the shared duty to address the global climate crisis”.

Other than the strong push for climate accountability and inter-generational equity, nations such as Palestine urged the court to take into account the impact of armed conflict and occupation. It noted that Palestine was a current and concrete example of “how these activities translate into dangerous increases in anthropogenic greenhouse gas emissions that affect not only Palestine, but the whole world.

It said that “climate scientists have determined that the ongoing war in the Gaza Strip was responsible for emission of between 420,000 and 650,000 tonnes of carbon dioxide and other greenhouse gases in just the first 120 days, which is the period for which there is published data.”

This is equivalent to the total annual emissions of 26 of the lowest-emitting states. One of the principal contributors of emissions is the jet fuel used by fighter planes, as well as by the delivery of arms and munitions.

The hearings highlighted the clear divide between the main greenhouse gas polluters and the victims of climate change and the universal demand for accountability from countries that are devastated by the warming climate. The testimonies endorsed the need for global laws and treaties to be included in the ambit of climate accountability and not just the Paris Agreement or the United Nations Framework Convention on Climate Change framework.

Arnold Kiel Loughman, the attorney general of Vanuatu, the country which spearheaded the campaign for the International Court for Justice hearing, said the oral hearings had “ highlighted a compelling legal case, led by the Global South”.

International obligations

The main arguments were focused on the applicability of international environmental laws and fundamental human rights to be included as international legal obligations of United Nations member states in the context of climate change. He added that one of the common threads of statements over the fortnight had been the importance of the right of self-determination and how climate change has impaired efforts to assert that right.

Nearly 100 countries and international organisations were heard by the 15 judges in the Hague over two weeks. Vanuatu and a large majority of other states and intergovernmental organisations argued before the court that existing legal obligations apply under several international treaties, as also the Charter of the United Nations and the Universal Declaration of Human Rights among other pacts.

Developed countries are mostly resisting the inclusion of their responsibilities under these laws. That is where the advisory that the court will issue on the matter has been asked to deliver will be crucial.

“The court has a solemn responsibility to hear the call of the most climate-vulnerable to keep the right to survival, the right to self-determination, at the very centre of its critical advisory opinion,” said senior attorney Joie Chowdhury of the Center for International Environmental Law.

The court’s advisory is expected to be announced in 2025.

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