Will ICJ hold countries responsible for climate-related damage?

What are the obligations of governments to protect the ‘climate system’ for ‘present and future generations’, and what are governments’ responsibilities for ‘acts and omissions’ that have caused harm to the climate? Should states be forced to take certain actions and is financial support a legal consequence of causing harm? These are some of the questions the United Nations General Assembly is seeking an advisory opinion on from the International Court of Justice (ICJ) following a unanimous resolution passed by 120 countries on March 29.

Not surprisingly, the United States and China did not support the resolution at the General Assembly. Every study points to the US as the largest contributor to global warming. The US is also the biggest blocker of diplomatic efforts to combat Climate Change, it did not endorse the Kyoto Protocol, pulled out of the Paris Agreement in 2017 only to re-join in 2019, and initially opposed the setting up of loss and damage fund during COP27.

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The US is responsible for 0.28°C / 17.3 percent of temperature rise between 1850 and 2021, according to a new paper titled ‘National contributions to climate change due to historical emissions of carbon dioxide, methane, and nitrous oxide since 1850’ published in Nature on March 29. The other major contributors to warming are China (0.20°C / 12.3 percent); Russia (0.10°C / 6.1 per cent); Brazil (0.08°C / 4.9 per cent); India (0.08°C / 4.8 per cent); Indonesia, Germany, the United Kingdom, Japan, Canada (each contributing 0.03-0.05°C).

The findings will be presented at COP28 this year to inform the first Global Stocktake of the UNFCCC, the process set out in the Paris Agreement to assess national progress towards achieving the pact's goal to limit global warming to 1.5°C.

To date, the current climate commitments by countries do not add up to the shared ambition to keep temperature rise below 1.5℃. For many countries, current trajectories of emissions would also overshoot their Nationally Determined Contribution (NDC] targets. What’s more, current total investments in low-emissions technology and systems are three-to-six times lower than what would be needed to keep temperatures to 1.5℃ or 2℃, according to modelling.

To keep the temperatures within 2℃ above pre-industrial levels, global greenhouse gas emissions must decline by around 21 percent by 2030 and 35 percent by 2035. Keeping the warming below 1.5℃ requires even stronger emissions reduction. This is a very tall order considering emissions trajectories to date. Annual global emissions in 2019 were 12 per cent higher than in 2010, and 54 percent higher than in 1990.

However, the 6th Assessment (AR6) Synthesis Report of the Intergovernmental Panel on Climate Change(IPCC) says that even though Climate Change is worsening, we have the means to act and a very small window to take action. All the governments of the world also agree unequivocally on the report that confirms, both emissions and atmospheric concentrations of greenhouse gases are now at record highs. Every increment of warming will intensify climate-related hazards such as floods, droughts, heatwaves, fires, and cyclones. Often, two or more hazards will occur at the same time.

At the UN negotiations, historical emissions underpin the claims for climate justice made by developing nations, along with the disparity in wealth of nations. Countries such as the US that grew rich on fossil fuels have the greatest responsibility to act. The historical emitters have taken up all the carbon budget for 1.5C, and spent it on their development. Climate justice demands that those who have done the most to cause the climate emergency should take the lead in addressing it. We now know where responsibility lies: principally with the US, but also with China and Russia.

This is why the UNGA resolution on ICJ advisory opinion on Climate Change was hailed as “a win for climate justice of epic proportions”, by Prime Minister Ishmael Kalsakau of the Republic of Vanuatu — an archipelago of roughly 80 islands spread across 1,300 km that was hit by two Category 4 cyclones within three days earlier this month. Vanuatu pushed for the resolution, leading a core group of 18 countries from Costa Rica to Germany.

The advisory opinion would be the first time the world’s highest court weighs in on the legal obligations of nations to address and prevent Climate Change. While not legally binding, the International Court of Justice advisory opinions are often relied upon by litigants in national and sub-national courts, which do issue legally-binding decisions and will most certainly influence the trajectory of Climate Change litigation going forward. The question is whether the ICJ will clarify the legal consequences that countries could face for causing climate-related damage or could fossil fuel companies be charged with homicide?

(Shailendra Yashwant is a senior adviser to Climate Action Network South Asia (CANSA). Twitter: @shaibaba.)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.