World Court Judges Pose Additional Questions In Climate Change Opinion

For the first two weeks in December, the International Court of Justice held oral hearings for its Advisory Opinion relating to the Obligations of States in respect of Climate Change. At the request of the United Nations General Assembly, the ICJ will determine the existing financial liability of countries for their contribution to climate change and what actions countries must take to prevent climate change. At the conclusion of the hearings, four judges posed questions to the participants. Responses must be filed by December 20.

The ICJ was established in 1945 through the UN Charter to handle legal disputes between nations. Known as the World Court, it is an outlet for countries to settle civil disputes through a neutral court. The ICJ is based in the Peace Palace in The Hague, Netherlands, which is also the home of the Permanent Court of Arbitration. Notably, the International Criminal Court, that recently issued an arrest warrant for Israeli Prime Minister Benjamin Netanyahu, is also located in The Hague. The ICJ and the ICC operate independently with different jurisdictions.

The ICJ is composed of 15 judges elected by the UNGA and UN Council to serve a term of 9 years. A country may only have one judge serving on the ICJ at a time.

The President of the Court is Judge Nawaf Salam of Lebanon. The remaining judges represent Australia, Brazil, China, France, Germany, India, Japan, Mexico, Romania, Slovakia, Somalia, South Africa, Uganda, and the United States of America

On March 29, 2023, at the request of Vanuatu, the UNGA asked the ICJ to issue an advisory opinion on the legal obligations of countries in preventing climate change. The opinion, while non-binding, will give an indicator of how the Court may interpret future climate related litigation and guide future legislative development.

The UNGA asked two questions:

“What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations”?

“What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to: (i) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change? (ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?”

On December 2, Vanuatu and the Melanesian Spearhead Group opened the hearings giving, in essence, an opening argument. Over 100 countries and parties presented oral statements in 30 minute increments from December 2 – 13. Notably, the oral statements were provided to the court in advance, with citations. Verbatim written transcripts of the daily hearings are posted on the Court’s website. Written statements were released daily as parties made their oral statements.

Legal arguments in the written and oral statements begin with the United Nations Convention on Climate Change and the Paris Agreement. Large countries, including the United States, Australia, and Germany, argued that the creation of a treaty that specifically addresses climate change overrides any other international law on the subject. This is known as lex specialis. Therefore, no additional legal obligations exist that may create a call for reparations or action not directly negotiated.

Developing countries argue that the UNCCC and the Paris Agreement are a starting point, but that the impacts of climate change violate human rights under international common law and the Universal Declaration of Human Rights. As a result, those countries that contribute to climate change, through the production of fossil fuels and GHG emissions, should pay reparations to low lying and developing nations that are “adversely impacted” by climate change.

In the opening statement, President Salem outlined the process for follow up questions by the Court. Unlike an American appellate court where the judges frequently interject with questions, the ICJ is withheld questions until the end. Judges that had questions submitted them in writing to the participants on December 13. Participants will have until December 20 to file a written response. There will not be an opportunity for Parties to file a response.

Four judges posed questions: Judge Sarah Cleveland of the USA, Judge Dire Tladi of South Africa, Judge Bogdan-Lucian Auresco of Romania, and Judge Hilary Charlesworth of Australia.

Judge Sarah Cleveland

United States of America

“During these proceedings, a number of Participants have referred to the production of fossil fuels in the context of climate change, including with respect to subsidies. In your view, what are the specific obligations under international law of States within whose jurisdiction fossil fuels are produced to ensure protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases, if any?”

Judge Dire Tladi

South Africa

“In their written and oral pleadings, Participants have generally engaged in an interpretation of the various paragraphs of Article 4 of the Paris Agreement. Many Participants have, on the basis of this interpretation, come to the conclusion that, to the extent that Article 4 imposes any obligations in respect of nationally determined contributions, these are procedural obligations. Participants coming to this conclusion have, in general, relied on the ordinary meaning of the words, context and sometimes some elements in Article 31 (3) of the Vienna Convention on the Law of Treaties. I would like to know from the Participants whether, according to them, ‘the object and purpose’ of the Paris Agreement, and the object and purpose of the climate change treaty framework in general, has any effect on this interpretation and if so, what effect does it have?”

Judge Bogdan-Lucian Auresco

Romania

“Some Participants have argued, during the written and/or oral stages of the proceedings, that there exists the right to a clean, healthy and sustainable environment in international law. Could you please develop what is, in your view, the legal content of this right and its relation with the other human rights which you consider relevant for this advisory opinion?”

Judge Hilary Charlesworth

Australia

“In your understanding, what is the significance of the declarations made by some States on becoming parties to the UNFCCC and the Paris Agreement to the effect that no provision in these agreements may be interpreted as derogating from principles of general international law or any claims or rights concerning compensation or liability due to the adverse effects of climate change?”

While no timeline has been given for the release of the final opinion, due to the complexity of the opinion, expect it sometime in mid to late 2025.