Vanuatu takes the stage—Part Two

"A little manatee that roared has changed the prospect for climate action" 

To comply with this obligation of result, the policies so adopted and the measures so taken must be such that they are able to achieve the required goal. In other words, the adoption of a policy, and the taking of related measures, as a mere formality is not sufficient to discharge the obligation of result.

—International Court of Justice, Advisory Opinion on Climate Change.

In her concurring opinion, Judge Dire Tlasi wrote:

There is an idiom in my language, Setswana "go itshela moriti o o tsididi " which literally means to pour cold shade over oneself, and which can be loosely translated to mean “to pretend not to know or see a problem”. Today, having come face to face with the incoherence in its jurisprudence, the Court has chosen to pour shade over itself, and to proceed as if all was well in the world, or to use another saying in a more famous African language, Hakuna Matata [“no worries”].

That seems harsh. She refers to the July 26 decision by the World Court in The Hague, brought by 27 Pacific Island law students and the government of Vanuatu. While widely hailed, and described with praise here last week, the opinion did not go far enough in the view of 12 of the 15 judges, who felt the need to write concurring opinions. This week I’ll highlight those.

Judge Dire Tlasi:

In the words of the Court, climate change is “an existential problem of planetary proportions that imperils all forms of life and the very health of our planet”. I am pleased that the Court, in fulfilling its mandate and responsibility, adopts a robust approach to the obligations of States, and in this way makes a contribution, albeit a very small one, to the crisis facing our planet. Yet, as acknowledged by the Court, it should not be forgotten that the Court’s role is a limited one. No number of advisory opinions, no matter how robust or thoughtful, can save the planet from the ongoing climate crisis. Others have bigger roles to play to stave off the dangers of climate change. As the Court notes, a complete solution to the climate change problem requires concerted effort and sacrifice. It requires those in decision-making positions to make the right choices for the sake of the future of our planet. The truth is that what you invest in reveals what you value. Currently, based on reported military spending compared to spending on other issues of international concern, such as the environment and global poverty, it seems that those who are in a position of authority value war over the plight of humanity and the future of the planet.

Judge Bogdan Aurescu:

I do regret that the Court, while accepting the existence of the human right to a clean, healthy and sustainable environment, was again excessively cautious even in front of compelling evidence, and fell short of explicitly finding that the right to a clean, healthy and sustainable environment is already a norm of customary international law. The customary character of this right is induced from the obvious existence of uniform and widespread State practice and opinio juris… A thorough analysis of various international instruments, of Constitutions and national legislation of States from all world regions confirms this conclusion of the customary character of this right.

Vice-President Sebutinde:

I am reminded of a wise African saying that captures this sentiment: “We do not inherit the Earth from our ancestors; we borrow it from our children.” This proverb emphasizes the responsibility that present generations have towards future generations to take care of our planet.

Why the Optimism?

Costa Rican diplomat Christana Figueres was the UN Secretary for the climate framework (UNFCCC), steering the annual COPs through their tumultuous Copenhagen to Paris period when push really came to shove. Now she’s retired to a mountain rainforest and has a weekly podcast called Outrage and Optimism. In this week’s episode, her co-host Paul Dickerson brought on Julian Aguon, a lawyer for the law student plaintiffs.

 Christiana asked the tough questions. Since the UN can’t compel countries to reverse climate change, what does it matter how many treaties it enacts or World Court decisions are taken?

Aguan: The court did exactly what we needed it to do. It dispelled legal ambiguity. It brought us so much further along. I mean, one could argue that it didn't just open the door to like a new era, and that era being one of climate accountability, but it swung it wide open.

Figueres: It kicked it open. How about that one?

Aguon: It kicked it open. It did.

 

Powerful fossil fuel producers, including the United States and Saudi Arabia, argued before the court that the 2015 Paris accord, in which nearly all countries agreed to limit greenhouse gasses, was sufficient to address climate change. The U.S. arguments were presented near the end of the Biden administration, and since then, President Trump has withdrawn the United States from the Paris Agreement.

—The New York Times

For 40 years, countries have been hiding behind sovereign immunity, claiming that neither the UN nor any other body has the right to order them around. Sure, they may have signed The Paris Agreement, but that is a special category of law, Lex Specialis [special case], something that cannot be enforced. Obeying that was strictly voluntary, in the view of many.

Aguon: It was so, it was so thrilling to be in the room and to just see the opinion, to just hear its logic, to hear the reasoning, to hear the court just like sort of like roundly reject certain arguments like the Lex Specialis argument, or like that only the Paris Agreement or the UNFCCC [apply]…. That's absolutely untrue. And it's always been untrue.

***

I'm really, really exceedingly pleased about this opinion that we got today; that the court did not shy away from answering the second component of the question, which is question B, which is what are the legal consequences when countries breach their obligations? It didn't hold back at all, and it didn't mince its words.

It says, quote, “the full panoply of the general rules of state responsibility are applicable.” So we are talking about guarantees of non-repetition. We're talking about conversation, restitution, conversation, and satisfaction. So the full gamut, the full gamut. So now reparations, arguments for climate reparations are absolutely….

Figueres: They use that wording, “the full panoply,” I was told, over and over.

Aguon: Yes, yes. “The full panoply.”

 

Run the Numbers, Judge

Judge Xue Hanqin:

To achieve the objective set up by the climate change treaties through limiting the increase of the global average temperature to 1.5℃ above pre-industrial levels, global action on mitigation of anthropogenic greenhouse gas emissions (hereinafter “GHG emissions”) will likely affect almost every economic sector of States and every aspect of our way of life.

Around 35 per cent of the global population live in countries emitting more than 9 tCO2-eq per capita. Around 41 per cent live in countries emitting less than 3 tCO2-eq per capita. A substantial part of this population lacks access to modern energy services. Least developed countries have much lower per capita emissions (1.7 tCO2-eq) than the global average. The IPCC concludes that “[t]he 10% of households with the highest per capita emissions contribute 34-45% of global consumption-based household GHG emissions, while . . . the bottom 50% contribute 13-15%”

According to the IPCC’s reports, approximately 3.3 to 3.6 billion people live in contexts that are highly vulnerable to climate change. Global mean sea level increased by 0.20 m between 1901 and 2018. Increasing weather and climate extreme events have exposed millions of people to acute food insecurity and reduced water security, with the largest adverse impacts observed in Africa, Asia, Central and South America, least developed countries, small island developing States and the Arctic. Between 2010 and 2020, human mortality from floods, droughts and storms was 15 times higher in highly vulnerable regions, compared to regions with very low vulnerability. Economic damages from climate change have been detected in climate-exposed sectors, such as agriculture, forestry, fishery, energy and tourism. Individuals’ livelihoods have been affected through the destruction of homes and infrastructure, and the loss of property, income, human health and food security, with adverse effects on gender and social equity.

To achieve climate justice, the specific needs and circumstances of these vulnerable groups of States and peoples must be addressed in accordance with the principle of common but differentiated responsibilities.

Creditworthiness—the bull in the ring

A week before the decision came down in The Hague, Pamplona Spain hosted their annual Festival of San Fermin and the traditional Running of the Bulls. When the bulls reach the stadium, they are herded into pens, and fighting cows (“Vaquillas”) are released into the bullring for runners to interact with.

Judges Bhandari and Cleveland:

In sum, as the Advisory Opinion recognizes, the legal obligations of States with respect to the protection of the climate system and other parts of the environment require States to take full responsibility for, and to aggressively redress, the contributions of production, licensing and subsidies of fossil fuels to the destruction of the climate system.

Vaquillas are not the same bulls that ran in the encierro, which are destined for the evening bullfights. Although the mass and speed of a VW bug, vaquillas’ horns are often padded. The purpose of releasing them to the crowded ring is for aspiring matadors (“espontineos”) to test their bravery and skill and to learn to deal with the raw terror of a half-ton beast bearing down on them at full speed.

Aguon: Just the threat of litigation, the threat of having to pay for cases that you lose, I think, is going to begin to affect both companies' and countries' behavior and their decisions. That, of course, is the ultimate objective of this.

Figueres: The ultimate objective is to advance both the national as well as the collective global effort to address climate change. That's the ultimate objective. And I think that that objective will be pursued.

Dickerson: That's a very thorough analysis, and I agree with it entirely. And just I'll add my own reflections on how I think that will turn up in the private sector. I mean, you have certainly the idea of financing fossil fuel companies or processes or infrastructure with heavy fossil fuels.

That becomes a considerably less attractive idea. And not least because, particularly for pure fossil fuel companies, this litigation risk makes them essentially less creditworthy. Or there's a risk that they're going to be kind of bankrupted or put into some kind of government protection where they have to pay out these damages.

Figueres: Their liability goes up.

Aguon: A bull in the ring.

Figueres: Indeed. The old saying, those who wear the chains are best suited to break them. And we saw an enormous chain broken today.

Polluter Pays

Judge Dalveer Bhandari:

Climate change remains one of the most profound existential threats facing our planet. It is not a distant or abstract concern; for many States, it poses an immediate threat to their very survival. While all States are affected, some are experiencing such severe and irreversible harm that their populations are effectively becoming refugees within their own territories. 

***

First, I wish to address the “polluter pays” principle, a matter that has long been of particular concern to me in the context of both national and international environmental law. This principle, in my view, constitutes a critical normative tool in confronting the global climate crisis… Notably, the Opinion later acknowledges the potential applicability of strict liability for pollution-related harm, thereby implicitly affirming the rationale underlying the polluter pays principle.

***

While the Court addressed issues relating to the continued statehood of affected States under question (a), it should have also considered this issue under question (b), which pertains to the legal consequences for breaches of obligations identified under question (a). Restitution could have further extended to the restoration of the rights of indigenous peoples to their lands, territories, and resources adversely affected by climate change.

***

Moreover, under the Court’s jurisprudence, in cases where the precise extent of damage cannot be fully ascertained, compensation may be awarded in the form of a global sum within the evidentiary range and guided by equitable considerations as an exceptional measure.

Harj Narulla, a barrister at Doughty Street Chambers and legal counsel for the Solomon Islands, told Carbon Brief:

“The ICJ’s ruling has provided a legal pathway for developing states to seek climate reparations from developed States…States can bring claims for compensation or restitution for all climate-related damage. This includes claims for loss and damage, but importantly extends to any harm suffered as a result of climate change.”

Judge Georg Nolte:

The customary duty to prevent transboundary environmental harm was first recognized in the 1940s. However, that duty was not applicable to the emission of GHGs until there was a general understanding and recognition of the risks associated with those emissions. Such recognition (except with respect to the ozone layer) crystallized during the second part of the 1980s.

***

As the Court has noted, the IPCC has found that, by 2019, approximately 58 per cent of all anthropogenic GHG emissions since the beginning of industrialization were emitted prior to 1990, while the remaining 42 per cent were emitted between 1990 and 2019.

GHG emissions since the second half of the 1980s can only have been wrongful to the extent that States either did not comply with their treaty-based mitigation commitments and obligations or did not undertake their best efforts to prevent significant harm to the climate system pursuant to the general customary obligation.

All this suggests that only a limited amount of all anthropogenic GHG emissions since industrialization has been caused by wrongful acts.

***

Harm to the climate system is harm to a common good resulting from collective actions or omissions, whether wrongful or not. The possible contribution to such harm by a claimant State would need to be considered in accordance with Article 39 ARSIWA, and the quantum of compensation arrived at by a court would need to be apportioned among all States concerned.

Article 39 of the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) deals with the concept of "contribution to the injury." It provides that when determining reparation for an internationally wrongful act, any wilful or negligent action or omission by the injured State—or any person or entity in relation to whom reparation is sought—must be taken into account if it contributed to the injury. This means that if the injured party played a role in causing or worsening its own injury, the amount or scope of reparation may be adjusted accordingly to reflect that contribution.

This widely used legal principle is known as "contributory fault" but is here being applied in international law, to the fault of nations. Judge Nolte is saying, essentially, “Look none of us is blameless. We use smartphones. We eat hamburgers. But can you seriously compare the lifestyle of a USAnian to a Vanuatan islander? It is the responsibility of the former to bring their greenhouse impact down, and to pay for the damage it has caused and is causing in the meantime.”

Dr Joana Setzer, an environmental lawyer and an associate professorial research fellow at the London School of Economics and Political Science’s Grantham Institute, adds that the court’s conclusion that “states are not only responsible for reducing their own emissions”, but “also have a due diligence duty to regulate private actors under their jurisdiction,” has larger implications. Stezer told Carbon Brief:

That includes fossil-fuel companies. This has far-reaching implications: it signals that states could be in breach if they fail to control emissions from companies they license, subsidise or oversee. This will place greater pressure on states to halt any new fossil fuel projects and introduce stricter regulations on the sector.

Judge Abdulqawi Ahmed Yusuf:

This reminds me of the famous remarks by Anatole France that “[t]he law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread”. By adopting a general and abstract approach to addressing the questions put to it by the General Assembly, the Court has effectively opted for a “majestic equality of the law” with regard to all States in relation to climate change. This is an approach rooted in extreme formalism and completely detached from the empirical realities and the scientific findings relating to the causes and consequences of climate change, as well as the generally acknowledged principle of common but differentiated responsibilities, which underpins the legal framework for combating the climate crisis for all.

***

Burkina Faso and Tuvalu do not contribute — and have never contributed — to GHG emissions on a scale remotely comparable to that of Germany or any other industrialized country. Their emissions are minimal to the point of being statistically negligible in the context of global GHG emissions, and a generalized statement such as that used in paragraph 277 of the Advisory Opinion does not do justice to their situation as compared to highly industrialized States, and unfairly attributes to them a much more important role in GHG emissions than they actually play. While GHG emissions have existed throughout the history of life on Earth, climate change, as recognized by scientific consensus and codified in Article 2 of the United Nations Framework Convention on Climate Change (hereinafter “UNFCCC”), arises when GHG concentrations in the atmosphere reach certain levels that interfere dangerously with the stability and functioning of the climate system. In this regard, the assertion that climate change is “inherently a consequence of activities . . . of all States” (emphasis added) is scientifically ill-grounded.

***

The cessation of conduct which has led to a breach of an international obligation is the first requirement for eliminating the consequences of a wrongful act. The State responsible for the breach of its international obligations is also under an obligation to make reparation for its wrongful act. Reparation may be achieved by restitution, compensation, satisfaction or a combination thereof. The Court has in the past indicated that environmental damage is compensable under international law, and that compensation will be due for both damage caused to the environment, “in and of itself”, and expenses incurred by injured States as a consequence of such damage.

Coming Attractions

Will this opinion affect the upcoming deliberations of COP30 in Belem, Brazil in November? You betcha.

Judge Sarah H. Cleveland:

States with greater capabilities and those that are major contributors to global warming have a responsibility to assist less-resourced States in their mitigation and adaptation efforts, including in the preservation of carbon sinks and reservoirs such as forests and wetlands. This is particularly true for large-scale resources such as the Amazon rainforest, where the burden of protection falls disproportionately on a few States whose actions have an outsized influence on the overall climate system. These States have a heightened duty of care to prevent damage to the climate system.

That means you, Brazil.

Figueres:

Let's remember that the UN, or not just the UN, but all international negotiations, thrive on creative ambiguity in language, and they resort to creative ambiguity when there is a contentious issue that cannot be agreed. And that has been exceedingly helpful, and we made use of it, certainly in the Paris Agreement, and, you know, it's made use of at every COP.

This decision reduces, let's say, the map of creative ambiguity concepts that can be used, because it provides so much clarity to say, no, all of these arguments just are no longer on the table. And so what it, interestingly, what it does, in a sense, is it makes negotiations tougher because there's more legal clarity. And it makes them tougher in the sense that there will, obviously, still be states that refuse to accept this because it's not legally binding, they're not parties to the ICJ, they, you know, don't feel that the ICJ speaks for them or for any international legal structure, et cetera, et cetera, et cetera.

Does it matter that the United States has withdrawn from the Paris Agreement, much in the same fashion as Australia ratified and then withdrew from the Kyoto Accord? Not at all. It is like a thief saying, “I refuse to reognize private property.”

Judge Dire Tladi:

The potential impact of climate change, the subject-matter of the current Advisory Opinion, however, is not limited to one geographical situation. Given that the world’s leading scientists have concluded with high confidence that climate change is a threat to “human well-being and planetary health” and that there is a “rapidly closing window of opportunity to secure a livable and sustainable future for all”, I believe that the subject-matter of this Opinion is even more consequential than the subject-matter of the Nuclear Weapons Advisory Opinion, which was described as relating to “the survival of the human species” by Judge Shahabuddeen.

***

Many have interpreted Article 4 (2) [Paris Agreement] as giving complete discretion to the party formulating the NDCs (national pledges), i.e. because the contributions are nationally determined, the party is free to determine its NDCs as it deems fit, with no room for objective assessment of whether a party’s NDCs are sufficient. Fancy phrases such as “bottom-up approach”, and distinctions such as the one between “obligations of conduct” and “obligations of result”, have been deployed to perpetuate this interpretation. Yet, since the NDCs are the main tool for achieving the objectives of the Paris Agreement, this interpretation would leave the Paris Agreement as a hollow shell, dependent on the will and convenience of each individual party. How different would such a scenario be to Hardin’s Tragedy of the Commons?

***

In this Opinion, the Court concludes that parties to the Paris Agreement do not have an unfettered discretion to determine the content of their NDCs. Rather, the Court interprets Article 4 (2) to mean that parties have an obligation to pursue the temperature goal expressed in Article 2, and that each individual NDC must be objectively capable of contributing towards the temperature goal or in the language used by the Court, NDCs “when taken together, are capable of achieving the temperature goal of limiting global warming to 1.5°C above pre-industrial levels”

***

The parties would likely fail to meet the 1.5°C target, and consequently would likely fail to achieve the “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”, if each party had complete freedom to set inadequate NDCs. This is precisely the entrenchment of Hardin’s Tragedy of the Commons. Thus, interpreting Article 4 (2) of the Paris Agreement, as leaving the NDCs to the unfettered discretion of parties is contrary to the object and purpose of the Paris Agreement.

***

The second, and more directly relevant point, is that the relationship between the customary international law duty to prevent significant harm, and the standard of due diligence, has a particular consequence for the interpretation of Article 4 (2) of the Paris Agreement in accordance with the rule set forth in Article 31 (3) (c) of the Vienna Convention on the Law of Treaties. The Court has stated, in this Opinion, that because of the nature of the climate change threat, the standard of due diligence to be applied is a stringent one. Applying a stringent standard of due diligence requires the setting of NDCs which are sufficiently high so as to be capable of contributing to the achievement of the object and purpose of the Paris Agreement. This means, by definition, that the sufficiency of the NDCs cannot be subject to the determination of the submitting State.

***

I still maintain modest hope. Modest hope that those in positions of power will realize, before it is too late, that money cannot be eaten. Hope that future generations will make better choices.

I could not say it any better than Judge Tladi and the others. Make it so.

What this Court has released into the public policy ring is not a vaquilla with padded horns. It is a fighting bull.

Thanks for reading The Great Change! This post is public so feel free to share it.

 

Banksy

 

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#RestorationGeneration.

When humans are locked in a cage, the Earth continues to be beautiful. Therefore, the lesson for us is that human beings are not necessary. The air, soil, sky and water are still beautiful without you. So, when you step out of the cage, please remember that you are guests of the Earth, not its hosts.

We have a complete solution. We can restore whales to the ocean and bison to the plains. We can recover all the tremendous old-growth forests. We possess the knowledge and tools to rebuild savannah and wetland ecosystems. Coral reefs rebuilt with biorock build beaches faster than the seas are rising. It is not too late. All of these great works of nature are recoverable. We can have a human population sized to harmonize, not destabilize. We can have an atmosphere that heats and cools just the right amount, is easy on our lungs and sweet to our nostrils with the scent of ten thousand flowers. All of that beckons. All of that is within reach.

 

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