CarbonCopy spoke to Tom Sparks, a climate lawyer at Max Planck Institute for Comparative Public Law and International Law, about what an opinion from the ICJ could mean for climate vulnerable nations that are seeking answers for issues such as climate finance and loss and damage
A couple of months ago, Vanuatu, a lower-middle income Pacific island state, signalled its intent to ask the International Court of Justice (ICJ) for an advisory opinion on obligations countries that signed the Paris Agreement have in the fight against climate change.
In an email exchange with CarbonCopy during the climate conference in Bonn last month, Vanuatu prime minister, Bob Loughman Weibur, said “science confirms that current Nationally Determined Contributions take us beyond what is acceptable, beyond what we agreed in Paris, and beyond the capacity of small island developing states like Vanuatu to address resulting loss and damage. And that is why Vanuatu seeks to inject new ambition into this process, to save the Paris Agreement. The ICJ is able to provide advisory opinions that give much needed clarity on how states work together on complex global challenges like climate change.” He further added that the request to the ICJ is aimed to “clarify the legal obligations of states to protect human rights and environments from climate change.”
News reports from a gathering of leaders of Pacific islands held last month in Fiji show that Australia and New Zealand, too, might extend support for Vanuatu’s proposal. This, despite persistent differences between the islands, comes after backing from other Pacific and Caribbean islands.
Nevertheless, news about support for Vanuatu’s proposal to seek an ICJ advisory opinion is relevant because the process is international and would need backing from other countries to go ahead. So what exactly does the process entail? What impacts could the final opinion have? Will ‘loss and damage’ figure in the process? Do non-island, low-emitter vulnerable nations like those in Africa have similar recourse at international forums?
To answer these questions and more, CarbonCopy spoke to Tom Sparks, a climate lawyer at Max Planck Institute for Comparative Public Law and International Law, who has previously worked as a fellow at the ICJ.
Why would an advisory opinion by the ICJ be of relevance? How can it help vulnerable island nations in the climate change era?
Advisory opinions can have major advantages. One relates to the authority of the court, which is asked to decide on a point of law without any specific circumstances attached to any state. So what we usually get is a clear, comprehensive answer in terms of law in its purest form and no state can say those circumstances don’t apply to them. For example, the court could give an opinion on the particular vulnerabilities that some states face, or say something about the historical responsibilities that other states bear. The disadvantage here is that because the opinion would be in the abstract, the answer from the court won’t tell you which states are in which groups [in terms of vulnerabilities and responsibilities] and where exactly the line is drawn because these are based on specific circumstances of individual states.
Another advantage is that to some extent, it takes politics out of the equation because it’s not a process between specific states. This was useful in the case where the court was asked for an advisory opinion on the usage of nuclear weapons, which would have been politically almost impossible to bring before the court as a contentious case, because none of the states that have nuclear weapons would have accepted the court’s jurisdiction on the matter (look what happened when the Marshall Islands tried to take the UK to the Court). So, the advisory opinion route gives more room to bring up divisive and controversial questions. And then, once the court gives its opinion, you can put the politics back into the process and ask states ‘so what action will you take now?’
According to the United Nations (UN) Charter, the UN General Assembly or the UN Security Council can request the ICJ to give an advisory opinion on any legal question. So does this mean there would be other political hurdles to face?
Both the Security Council and the General Assembly can request an advisory opinion from the ICJ on ‘any legal question’. UN agencies like the World Health Organization and the World Meteorological Organization, too, can seek advisory opinions, although their remit is more limited—they can only request opinions on matters ‘arising within the scope of their activities’. But for the current case, I think it is the General Assembly that is the most promising route to the Court, although there would be political hurdles here.
To pass through the Assembly, it would need a simple majority of the states present and voting, which is 50% of votes plus one. But to have widespread legitimacy and look like it’s not just a pet project of a few states, it needs more. So there’ll need to be a careful process of negotiating what question will be submitted to the court, to try and bring as many states as possible on board. You’ll never convince every state to vote in favour—some states might not like the idea because they wouldn’t want additional obligations, might prefer political processes or don’t see legal processes as useful in any way. But the hope will be that if you frame the question just right, then you’ll get as many positive votes as possible, and hopefully also convince some of the states that are more sceptical to abstain or even just not to vote, rather than voting against.
What kind of ruling is most ideal for fighting climate change and assisting vulnerable nations?
Personally, I’d like to see a focus on the ‘no-harm rule’ in customary international law where states are bound to ensure that activities in their territories do not cause foreseeable harm to other states. The rule has been accepted as part of international law ever since the Trail Smelter case between the US and Canada where the former sought damages from the latter for air pollution in Washington from Trail Smelter, a company loaded across the border in Canada. The case was decided in 1941, where the arbitral tribunal held that states should not use their territory in such a way that it causes injury to other states like with fumes in this case. Shortly thereafter, in 1946, the ICJ decided another case, the Corfu channel case, saying that states are bound to not allow the use of their territories in a way that would cause injury to other states.
Now the rule could be used to show how fossil fuel emissions have caused harm. Political and moral questions could then follow to understand who has what kind of responsibility. The other point that legal scholars bring up is human rights obligations, and I see a lot of potential there. But while human rights are fantastic for helping us to help citizens put pressure on their own governments, they’re also limited in some ways. I don’t see human rights playing a major role outside of domestic law, and I don’t think they’re going to help us address questions about historical responsibilities of the Global North to the Global South.
How do you think ‘loss and damage’ will figure in the process, be it as part of the request by Vanuatu or as part of the final advisory opinion?
I’d love to see loss and damage included in the advisory opinion, but my hunch is that the question of loss and damage is too controversial to get through the General Assembly so it is very likely that it wouldn’t be part of the request by Vanuatu. There are also limited ways in which the court could address loss and damage in an advisory opinion, because it would bring up questions of specific circumstances of specific states.
The court could still set some broad principles about Global North responsibilities to the Global South but they wouldn’t answer questions like to what extent, how much, etc. This is why, in my view, advisory opinions are only one part of the picture. We also need domestic court cases, international human rights cases, law of the sea cases, and maybe also an inter-State contentious case before the ICJ, too. All these cases can build on each other, and contribute different pieces of the puzzle.
What legal protections/ recourse do vulnerable islands like Vanuatu have currently at international forums? Do non-island, low-contribution, high-vulnerability countries (like those in Africa) have similar protections?
Both island and non-island vulnerable nations have very little in terms of legal tools. There is the Commission of Small Island States on Climate Change and International Law that was established last year. It could allow island nations to seek an advisory opinion from the International Tribunal for the Law of the Sea. But this is limited to questions like if an entire island state sinks, what happens to its territory? So international legal protections for vulnerable island and non-island nations are very few. But we now see individuals from vulnerable nations taking legal action like the case of the farmer in Peru who is suing RWE for melting glaciers in his town.
Do you see international legal disputes emerging from climate action (or lack thereof) in terms of land-use, emission mandates on economic sectors etc?
We already have a lot of examples of such cases. You can take a look at the recently released climate litigation trends reports by the Grantham Institute. Most are domestic cases but there are also plenty of examples of international disputes. There are four climate cases which are pending before the European Court of Human Rights currently. A few are pending before the Inter-American Court of Human Rights. And many of these have the potential to be very significant. There’s also the case brought on by the Peruvian farmer which is technically a domestic case before a German court that will be decided based on German law but it also has an international element.
The ICJ currently has some vacancies and so, could future appointments to the court also determine how the request by Vanuatu could fare?
Because it has only 15 judges, even small changes can have big impacts on how the court rules. There’s an election every three years, and the judges’ terms are staggered so that a third of the Court is elected every time—that way you get both some fresh faces coming in, as well as a degree of continuity. So it can be that the court reinvents itself every few years. There’s a requirement that the court ‘represent the principle legal systems of the world’, and the way that this works in practice is that different regional groupings each have a certain number of seats on the court. So for example, recently a real icon of the court passed away—Judge Antônio Augusto Cançado Trindade from Brazil. There will be a special election to fill his seat, and the person elected will be from Latin America—in fact, some people argue that it has to be someone who is also from Brazil. Also because the court is small, each individual really has the chance to make their mark—either by convincing their colleagues of their point of view, or by writing important separate or dissenting opinions.
How has the ICJ ruled earlier on matters relating to international justice? What can we learn about past judgements of the court that paint it as ‘mostly conservative but occasionally progressive’?
In the past, there have been some highly progressive judges like Christopher Weeramantry from Sri Lanka and Mohammed Bedjaoui from Algeria. There have been occasions when the court has stood by small nations like Nicaragua in its case against military actions by the US and Chagos islands in a case where the UK colonised its territory to make way for American air bases. In the Chagos islands case, many expected the court to be cautious because two permanent members of the Security Council were involved, but the court said very clearly and strongly that the US and UK have broken international laws. There is also the case relating to the construction of a wall in occupied Palestinian territories where the court said the wall violates international law. But the court has swung from different characters playing different roles—it’s also had moments when it’s been much more cautious. It always plays a strictly positivist role of implementing international law as states have decided. But sometimes it would rather not answer questions that are very controversial or political, and on other occasions it’s bolder. I have the feeling that it’s in a bold mood at the moment, which could be a very good thing for Vanuatu, but I could also be proven wrong!
Editor’s Note: This story was developed as part of a journalism residency program at Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany