Description

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Picture Courtesy: THE HINDU

Context

The International Court of Justice (ICJ) recently issued a landmark advisory opinion on the obligations of states concerning climate change.

International Court of Justice (ICJ)

It is the principal judicial organ of the United Nations (UN), established in June 1945 by the Charter of the United Nations.
All UN member states are automatically parties to the ICJ Statute.
It settles legal disputes submitted to it by states and provides advisory opinions on legal questions referred to it by other UN organs and specialized agencies.
It is the only international court that adjudicates general disputes between countries.
It is composed of a panel of 15 judges elected by the UN General Assembly and Security Council for nine-year terms.
It is headquartered in the Peace Palace in The Hague, Netherlands, making it the only principal UN organ not located in New York City.
Its official working languages are English and French.
While its judgments are binding on the parties and final, the ICJ possesses no formal enforcement mechanism.
Enforcement of its rulings is ultimately a political matter for the UN Security Council, where it is subject to the veto power of the five permanent members.

Background of the ICJ Judgement

The ICJ advisory opinion is the result of the effort of the government of Vanuatu, a Small Island Developing State (SIDS) vulnerable to climate impacts. A coalition of 18 "ICJ Champions Nations" and 132 co-sponsors supported Vanuatu's leadership.

In March 2023, the 77th session of the United Nations General Assembly (UNGA) unanimously adopted Resolution A/77/L.58, formally requesting the advisory opinion from the ICJ; it became the first advisory opinion request to pass the UNGA by consensus.

Highlights of the ICJ ruling

1.5°C Goal as an Obligations => The ICJ states that the Paris Agreement's 1.5°C temperature target includes an binding obligation on states to address climate change.

It stresses that every increment of global warming escalates climate risks, mandating all states, especially major emitters, to launch mitigation measures consistent with the best available science.

Due Diligence => States have a legal duty to take "all reasonable measures" to prevent foreseeable climate harm from their actions and those of private actors under their jurisdiction.

The ICJ finds that obligations arise from multiple sources, including climate treaties (UNFCCC, Kyoto Protocol, Paris Agreement), customary international law, and human rights law.

State Responsibility for Emissions => State's failure to take appropriate action to protect the climate system from greenhouse gas emissions, including through fossil fuel production, consumption, granting exploration licenses, or providing subsidies, "may constitute an internationally wrongful act."

What is Principle of Common But Differentiated Responsibilities and Respective Capabilities (CBDR-RC), mentioned in ICJ Ruling?

It was formalised in the 1992 United Nations Framework Convention on Climate Change (UNFCCC) at the Earth Summit in Rio de Janeiro.

This principle acknowledges that all nations share a common responsibility to address environmental degradation.
However, it simultaneously recognises that their roles and capabilities vary due to differing historical contributions to climate change and varying economic capacities.

Developed nations, having undergone early industrialisation, contributed more to historical greenhouse gas emissions.

The ICJ opinion reinforces CBDR-RC by stressing the responsibility of developed nations, emphasising their duty to lead climate action and provide support to vulnerable states.

Examples of Disproportionate Impact

Small Island Developing States (SIDS) => Nations like Tuvalu and Maldives face an existential threat from rising sea levels, ocean acidification, and extreme weather events.
Vulnerable Coastal Communities => In India, communities in the Sundarbans face severe threats from sea-level rise, increased cyclonic activity, and saltwater intrusion, threatening their livelihoods and homes.
Global South => Countries in the Global South bear the brunt of climate impacts despite having minimal historical emissions. For example, the average mortality from floods, storms, and droughts in particularly vulnerable countries is 15 times higher than in countries with very low vulnerability.

Can ICJ Force Payments?

The ICJ's advisory opinion does not directly order states to make payments. However, it establishes a powerful legal basis for future action.

When states fail to meet their international obligations related to climate change, whether under treaty law, customary international law, or human rights law, this can trigger a "panoply of legal consequences," including:

Entitlement to "Reparations" => States affected may seek "full reparation," which can include:

Restoring the situation to what it was before the wrongful act, if possible (e.g., ecosystem restoration, rebuilding climate-resilient infrastructure).
Providing Compensation for financially assessable damage.
Addressing moral or non-material harm (e.g., formal acknowledgement of the wrong, apology).

Green Climate Fund (GCF) vs Loss and Damage Fund (LDF)
	Green Climate Fund (GCF)	Loss and Damage Fund (LDF)
Purpose	Supports mitigation and adaptation projects in developing countries.	Addresses irreversible losses and damages from climate impacts.
Establishment	COP16 (Cancun, 2010), fully operational 2015.	COP27 (Sharm el-Sheikh, 2022), operationalized COP28 (2023).
Focus	Future climate action (preventing and adjusting to impacts).	Existing and unavoidable impacts (consequences already incurred).
Funding Source	Primarily developed countries, with a target of mobilizing $100 billion/year by 2020 (not met).	Primarily developed countries (voluntary pledges currently).
Current Host/Trustee	Independent operating entity under UNFCCC.	World Bank (interim trustee for 4 years).
Controversy	Failure to meet funding targets, accessibility issues.	Funding inadequacy, World Bank hosting, scope of contributors.

Way Forward

Push for Increased, Predictable Climate Finance => India, as a leading voice of the Global South, must continue to advocate to developed nations to meet their climate finance commitments.

Advocate for Robust LDF Operationalisation => India must press for the effective operationalisation of the Loss and Damage Fund, addressing concerns about its governance, accessibility, and the contentious issue of who contributes to ensure timely and adequate support for the most vulnerable.

Encourage Stronger, Binding Emission Targets => The Global South can leverage the ICJ's opinion to demand more ambitious and binding emission reduction targets from developed nations, aligning with the 1.5°C goal.

Explore Domestic Legal Avenues => India can utilise the ICJ's interpretation of international law to strengthen domestic climate litigation against both the government and private actors for climate-related harms and to enforce environmental regulations.

India has incurred over USD 56 billion in damages from weather-related disasters between 2019 and 2023, underlining the urgent need for robust domestic frameworks for loss and damage.
India has initiated efforts in climate finance, including the National Adaptation Fund for Climate Change (NAFCC) and the National Clean Energy Fund (funded by a carbon tax on coal).
However, clear guidelines for accessing loss and damage funds within India are necessary to protect frontline communities.

Strengthen Intergenerational Equity and Human Rights => The ICJ opinion stresses that climate protection is crucial for human rights and for protecting future generations. Advocates should continue to integrate these rights-based arguments into climate policy and legal frameworks.

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Source: THE HINDU

PRACTICE QUESTION

Q. Examine the principle of "Common But Differentiated Responsibilities and Respective Capabilities (CBDR-RC)" in the context of international climate negotiations. 150 words

Frequently Asked Questions (FAQs)

An advisory opinion is a non-binding legal interpretation provided by the International Court of Justice, offering authoritative guidance on legal questions.

Historical emissions refer to the cumulative greenhouse gas emissions primarily from industrialized nations since the Industrial Revolution.

It was formalised in the 1992 United Nations Framework Convention on Climate Change (UNFCCC) at the Earth Summit in Rio de Janeiro. This principle acknowledges that all nations share a common responsibility to address environmental degradation.