EDITORIAL 1: ICJ’s climate ruling
Context
The International Court of Justice (ICJ) delivered a landmark ruling on Wednesday that can breathe new life into the climate movement, and potentially open the floodgates for litigation seeking greater accountability from countries on climate action.
The International Court of Justice (ICJ)
- The Hague-based court, which is the main judicial branch of the United Nations, has held that countries are under a legal obligation to take steps to reduce greenhouse gas emissions, and could be held liable to pay compensation if they failed to do so.
- By making it clear that climate action is not just a policy imperative for countries but a legally-binding commitment under international law, the ruling strengthens the position of developing countries and everyone else advocating enhanced climate action from the rich and industrialised world.
- The UNGA wanted the ICJ to address two very specific questions: (i) what are the obligations of countries under international law to protect the climate system and, (ii) what are the legal consequences for countries that do not fulfil their obligations.
Ruling of the court
- The court examined the provisions of the three climate treaties — the 1994 UN Framework Convention on Climate Change (UNFCCC), the 1997 Kyoto Protocol, and the 2015 Paris Agreement — and several other environment-related international laws that have a bearing on the climate system.
- These include the UN Convention on the Law of the Sea (UNCLOS), the 1987 Montreal Protocol for protecting ozone, the 1992 Convention on Biodiversity and the 1994 Convention to Combat Desertification.
- The court concluded that climate action was not a matter of choice or preference, but a legal obligation: countries were obligated to take measures that contributed to the reduction of greenhouse gas emissions.
- In addition, rich and industrialised countries in Annexure I of the UNFCCC had an obligation to take the lead on emissions reduction, and facilitate technology and financial transfers to developing countries.
- Countries could be held liable even for the irresponsible actions of private businesses or corporations, if they had failed to exercise due diligence and not taken adequate regulatory or legislative measures to prevent the irresponsible behaviour of private actors, the court held.
Significance of ruling
- The advisory opinion of the ICJ is not international law, and it is not binding on countries.
- However, it is the most authoritative interpretation of international law on the subject, and it is likely to be relied upon by courts around the world in deciding matters that come before them.
- In recent years, progress on the global fight against climate change has been severely undermined by the lack of adequate action by countries, particularly those in the developed world. The emissions reduction targets for 2030 will almost certainly be missed.
- The credibility of international climate negotiations is at stake, with developing countries, particularly the most vulnerable ones, very upset over their concerns being ignored.
- This is important because the climate actions mandated under the UNFCCC or the Paris Agreement are, barring a few, largely suggestive in nature, and there are no consequences for countries for non-compliance.
- For example, the US suffered no consequences for pulling out of the Paris Agreement, and the developed countries as a whole got away with not meeting their finance obligations.
- Most developed countries did not meet their emissions reduction targets under the Kyoto Protocol either, and some of them walked out of the treaty — again without any consequences.
- With this, the ICJ has strongly endorsed the concept of loss and damage in climate laws, which call upon developed countries to take the lead in raising financial and other support to help countries recover from impacts of climate change.
Way forward
- The actual impact of the ruling will become evident only when it begins to be cited as precedent in individual cases on climate-related disputes, and from the treatment that it receives from governments.