ICJ paves the way for climate 'reparations'
States that violate their climate obligations commit a “wrongful” act and may be forced to pay compensation to the most affected countries, the International Court of Justice (ICJ) concluded on Wednesday (23), in an advisory opinion that could influence global jurisprudence.
The UN's highest court's opinion on countries' legal obligations to curb the effects of climate change and economic responsibility has generated anticipation, as many experts believe the judges' opinion could mark a turning point in climate litigation worldwide.
"The consequences of climate change are severe and far-reaching: they affect both natural ecosystems and human populations. These consequences underscore the urgent and existential threat posed by climate change," ICJ President Yuji Iwasawa declared at the start of the hearing in The Hague.
The court unanimously concluded that the “violation” of climate obligations by a State constitutes “an internationally wrongful act,” capable of giving rise to compensation for affected countries, under certain conditions and on a case-by-case basis.
“The legal consequences arising from the commission of an internationally wrongful act may include (…) full reparation of the damages suffered by the injured States in the form of restitution, compensation and satisfaction,” said Judge Iwasawa.
However, the judges added that a direct and certain causal link must be established “between the unlawful act and the damage”, which, although difficult to prove in court, “is not impossible”.
This opinion is advisory and non-binding, but because it is issued by the UN's highest judicial authority, it will establish a solid legal interpretation to guide future actions or judicial decisions around the world regarding climate justice. It may also establish case law.
Vanuatu's Climate Change Minister Ralph Regenvanu said the decision was "a historic milestone for the climate."
"It's a very important change of direction at this critical moment," said the minister of this island nation, where the activist mobilization reached the UN General Assembly, which asked the 15 ICJ judges to pronounce themselves on two issues.
What are the obligations of States under international law to protect the Earth from greenhouse gas emissions generated by the combustion of oil, gas and coal for present and future generations?
What are the legal consequences of obligations when States, “through their acts and omissions, cause significant harm to the climate system,” especially to the most vulnerable low-lying island States?
The second issue concerns the responsibilities of States for the harm caused to small and more vulnerable countries and their populations, particularly those threatened by rising sea levels and extreme weather conditions in regions such as the Pacific Ocean.
“With regard to the obligation to prevent significant damage to the environment, the Court considers that it also applies to the climate system, which is an integral part and essential component of the environment and must be protected for present and future generations,” said Judge Iwasawa.
The judge added that “the adverse effects of climate change may significantly impair the effective exercise of certain human rights, such as the right to health” and “the right to an adequate standard of living.”
The tribunal held its largest-ever hearing at the Peace Palace in December, with more than 100 nations and groups participating. Like David versus Goliath, the debate pitted small developing countries against advanced economies.
During the December hearings, the court heard more than 100 petitions, a record. Many came from small states appearing before the court for the first time.
Major polluters such as the United States and India have argued that existing legislation – the United Nations Framework Convention on Climate Change (UNFCCC) and annual COPs – is sufficient.
Not to mention that the United States, under President Donald Trump, withdrew its funding from the UNFCCC and disassociated itself from its historic pact, the Paris Climate Agreement.
Smaller countries demand compensation from historical polluters, an unacceptable demand for more industrialized countries. They also demand a timetable for the gradual elimination of fossil fuels and recognition of past mistakes.
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