Vanuatu and other vulnerable states gave impassioned evidence – aided by a few European allies. Now they wait for the World Court’s opinion.
A landmark legal case to establish countries’ climate responsibilities is wrapping up in The Hague today after two weeks of hearings.
Judges at the International Court of Justice (ICJ) heard from more than 100 countries and organisations between 2 to 13 December, making this the biggest ever legal case in terms of participation.
At its heart is an attempt by vulnerable countries to create a tighter framework of accountability that sets clear international legal obligations for climate action. The small Pacific island nation of Vanuatu has led efforts to secure an advisory opinion from the ICJ, which is now due next year.
“The two weeks of oral hearings at the International Court of Justice have highlighted a compelling legal case, led by the Global South,” says Arnold Kiel Loughman, Attorney General for the Pacific island state.
“We have argued, one statement after the other, that international environmental laws and fundamental human rights are applicable international legal obligations that must not be excluded from States responsibilities in the context of climate change.”
With so many countries speaking at the court, the case has provided an extraordinary insight into climate concerns, grievances and political positions from around the world.
What have climate-vulnerable countries argued at the ICJ?
There are two fundamental questions the 15 judges are facing about a state’s obligations in international law. The first is, what is their duty to protect the climate? The second is what are the legal consequences when they cause significant harm through their actions or inactions?
Concerning the first question of climate action, a big dividing issue between (primarily) developed, and developing countries over the past fortnight has been whether the current framework is sufficient.
“As pointed out by some States in the proceedings, historical polluters continue to hide behind the safety of the climate regime (UNFCCC and the Paris Agreement), which limits State responsibility to procedural obligations that avoid any real accountability,” adds Loughman.
Global South countries have argued that there is no reason why other environmental and human rights laws – such as the duty to prevent harm to another State – should be overlooked in the context of the climate crisis.
A common thread in the statements, Loughman notes, is the importance of the right of self-determination, and how climate change is undermining efforts to assert that right.
Taking to the floor yesterday (12 December), Tuvalu explained that it is the first country expected to be completely lost to climate-related sea-level rise – first rendering its islands uninhabitable, before submerging them completely.
“Tuvalu will not go quietly into the rising sea,” the nation declared, arguing that this existential threat must inform the Court’s assessment of States’ obligations. It noted that there is not yet a well-developed legal system to support this right, and asked the ICJ to work on this.
Small island developing states (SIDS) will not stay above the rising tides without the technical and financial support necessary to adapt, Tuvalu added, echoing a point made by others.
Also speaking on the penultimate day, Zambia said that, “The debt crisis is like a python wrapped around us, leaving no breathing space for us to invest in adaptation, mitigation, or addressing loss and damage.”
Zambia’s Solicitor General broke into tears while presenting an image of the dried-up Victoria Falls – illustrating how essential the case is for the country ravaged by repeated droughts.
What have European countries said at the ICJ?
“This landmark case has shown a shared determination from representatives across Africa, Asia, Latin America, the Caribbean, Pacific Island States and even a few European States to uphold and apply the rule of international law in the context of climate change,” says Vanuatu’s Loughman.
Global South countries had some perhaps unexpected allies in Europe on the self-determination front – including Latvia and Liechtenstein.
“For us small States, our sovereign rights are the only shield against predatory neighbours,” one observer told the Earth Negotiations Bulletin (ENB) reporting service, noting how climate change threatens to undo historic achievements gained through anti-imperial struggles.
France, Portugal and Spain appeared to fall on the more progressive side of developed countries with their statements at least partially acknowledging the role of litigation in achieving climate justice.
“France is convinced that these advisory proceedings provide a unique opportunity for the court to contribute to identifying and clarifying international law in regard to the fight against climate change,” Diego Colas, the country’s representative told the court last week.
“Like many other countries, France has high expectations of these proceedings and the opinion that you will hand down.”
Spain said that no single legal regime suffices to address climate change. It cited the European Court of Human Rights’ Klimaseniorinnen ruling recognising that climate change is a common concern of humankind, confirming that governments have human rights obligations in response.
On the other side, the UK and Germany were criticised for talking down more ambitious action.
The UK claimed that the most effective way to address climate change is through the Paris Agreement and other treaties. It also rejected the second question before the ICJ – concerning legal consequences – stating that the Paris Agreement already provides for this.
Such a position advocates for “a world where climate responsibility is effectively erased,” comments Sébastien Duyck, senior attorney at the Center for International Environmental Law (CIEL). “By demanding this, the UK has shredded any semblance of climate leadership.”
What is next for the ICJ’s climate case?
The ICJ is now taking time to consider all the submissions delivered over the past fortnight.
It will deliver an advisory opinion sometime in 2025.
While this opinion won’t be legally binding – and so can’t force nations to act – it will be both legally and politically significant.
It is likely to influence climate change lawsuits in courts all over the world – including those where SIDS are seeking compensation from developed nations for historic climate damage.
David Boyd, former UN Special Rapporteur on Human Rights and the Environment, expressed “hope that the judges will take a look at these first hand testimonies of people on the front lines of the climate crisis and realise just how heavy the court’s responsibility is to clarify states’ obligations to act with much greater urgency, much higher ambition.”
“All of us look forward to the ICJ’s coming Advisory Opinion and its potential to inspire global action,” says Loughman.
“In Vanuatu, we understand that a rising tide may lift all boats, as the Global North saying goes. But in Vanuatu, we need our boats lifted fast, before the sea-level rise permanently swamps our coasts.”
