By Prof. (Dr.) Bharat H. Desai
I. Views of the States
On the whole, all the presentations (written and oral) made by the States and IOs brought a variety of legal arguments that constituted the mosaic of different approaches in addressing the challenge of global climate change. For instance, Brazil (Written Statement, March 21, 2024; Oral Presentation, December 03, 2024) highlighted its commitment to ambitious emissions reductions, stressing that despite being a developing country, it faces significant challenges like poverty eradication and extreme climate impacts. The Brazilian envoy underscored the principle of “common but differentiated responsibilities”. China (Written Statement, March 22, 2024; Oral Presentation, December 03, 2024) urged the ICJ to avoid creating new legal obligations and focus on existing frameworks and underscored the developed countries’ historical responsibility.
The Indian approach has been reflected in the Written Statement of March 21, 2024; Oral Presentation, December 05, 2024. Since this author prepared the initial draft of the Indian Written Statement, it is worth spelling out the stance emphasizing that the “Court may exercise due caution to avoid devising new or additional obligations beyond what is already agreed under the existing climate change regime”. [Indian Written Statement, March 21, 2024; conclusion, page 39, paragraph 106 (iii)]. However, the two leading players on the climate chessboard, European Union (EU) and the United States took different positions. The EU (Written Statement, March 22, 2024; Oral Presentation, December 13, 2024) emphasized cooperation and stressed the non-adversarial nature of the advisory proceedings and pointed to the importance of existing treaties in addressing climate change but stopped short of calling for enforcement mechanisms. On the other hand, the United States (Written Statement, March 22, 2024; Oral Presentation, December 04, 2024) acknowledged the severity of the climate crisis but rejected by the notion that “common but differentiated responsibilities” is a fundamental principle of international law.
II. What Would the World Court Do?
Upon perusal of the Written Statements and hearing the Oral Presentations (December 13, 2024), some ICJ judges asked the States and IOs specific questions and sought responses by December 20, 2024 (ENB, December 16, 2024) It did elicite good clarifications from 60 States and 5 IOs, till December 20, 2024. The Court is expected to deliver its considered Advisory Opinion, hopefully, in the first half of 2025. After the ICJ renders an opinion, the ball would revert back to the UNGA who could further decide on the course correction.
Since there are indications of floundering of the UNFCCC process, as seen in the outcomes of last three successive COP meetings at Baku (COP29, November 11-24, 2024), Dubai (COP28, November 30-December 12, 2023) and Sharm-al-Sheikh (COP27, November 6-18, 2022), it could possibly yield critical space to the ICJ to illuminate upon some seminal aspects for affixing obligations of the states within and beyond the three principal international legal instruments on climate change (1992 UNFCCC, 1997 Kyoto Protocol; 2015 Paris Agreement). It presents an ideational challenge for International Law and Relations scholars, the UNGA and the UNFCCC process. As argued in one of this author’s ideational papers (Environmental Policy and Law 52 (5-6) 2022, 331-347), the climate crisis calls for earnestly elevating the normative ambit of climate change regulation from a common concern to a planetary concern (here, EPL, 54 (1) 2024, 3-14; here, EPL Blog, January 5, 2023; here, EPL, 52 (5-6) 2022, 331-347). The UNGA could take the charge by adopting a normative resolution at the 80th session (after the ICJ renders its Opinion in 2025) to provide future directions to the global regulatory approach on climate change. The ICJ would need to find answers to the specific questions in the UNGA request (March 29, 2023). What would the World Court do to nudge the UNGA and the States to squarely address the global climate riddle?
III. Making International Law Work
In view of the above legal stratagems and crafting of tools and techniques to stabilize GHG emissions enshrined in the three legal instruments (1992 UNFCCC, 1997 Kyoto Protocol and 2015 Paris Agreement), the regulatory approach appears to be stagnating. It has brought in fatigue effect, proliferation of national climate change litigations and the UNGA request. Ironically, the Baku COP29 (November 11-24, 2024 resulted in literal abandonment of the multilateral climate negotiations by some States and lukewarm attitudes of others. The Baku COP29 decision (CMA.6: New collective quantified goal on climate finance, paragraph 8; Press Release, November 24, 2024) “to set a goal, in extension of the goal referred to in paragraph 53 of decision 1/CP.21, with developed country Parties taking the lead, of at least USD 300 billion per year by 2035 for developing country Parties for climate action” requires cautious optimism in view of the previous experience of such climate funding commitments remaining on paper.
The outcomes of the three back-to-back global events, Summit of the Future (New York; September 22-23, 2024), Sustainable Development Goals (New York; September 18-19, 2023) and Stockholm+50 Conference (Stockholm; June 2-3, 2022) have dampened prospects for squarely addressing the climate emergency. As we look ahead, it is high time for the States Parties to the climate change regime (1992 UNFCCC, 1997 Kyoto Protocol and 2015 Paris Agreement) to engage in a major course correction, as preliminarily spelled out above. It calls for audacity of hope for wiser counsels to prevail. As an immediate goal, the State Parties need to elevate the normative ambit as a planetary concern. Thus, the forthcoming Advisory Opinion of the World Court can provide a nudge and a robust basis to locate “obligations of the states” within the realm of the said larger planetary concern. In this respect, some of this author’s ideational works (here, EPL, 54 (1) 2024, 3-14; here, EPL Blog, January 5, 2023; here, EPL, 52 (5-6) 2022, 331-347), done on his home turf of SIS, modestly provide some solutions to the problematique.
IV. Conclusion
It is in the above-mentioned larger context, in designing an Opinion expected in the first half of 2025, the ICJ has sufficient room for ‘widening the horizons’ through the instrumentality of interpretation on “obligations of states” in International Law. It remains to be seen as to how far the ICJ draws upon its past practices, precedents and processes. The content and futuristic trajectory of the Opinion would depend upon current composition of the Court wherein the judges with academically strong backgrounds could venture to innovate and extrapolate by reading within the fine texts of the three climate change instruments. It may yield “decisive course correction”, as suggested in this author’s recent ideational works (here, EPL, 54 (1) 2024, 3-14; here, EPL Blog, January 5, 2023; here, EPL, 52 (5-6) 2022, 331-347). After the Court delivers an Opinion, the UNGA would consider it and give shape to the views of the UN Member States through an appropriate resolution, possibly at the 80th session of the UNGA. It could suggest the road ahead for addressing the planetary level climate emergency. As of now, for deciphering obligations of states in respect of climate change under international Law, we need to trust the wisdom of the ICJ judges who represent the principal legal systems of the world.
This Article is an Original Contribution to the SIS Blog.
The Article is a sequel to the article Planetary Climate Emergency Part -I
Prof. (Dr.) Bharat H. Desai is the former Chairperson and Professor of International Law at the Centre for International Legal Studies (SIS, JNU), who served as a member of the Official Indian Delegations to various multilateral negotiations (2002-2008), initiated and coordinated the futuristic knowledge initiatives for the SIS Faculty Wall of Honor (2023-24), the Inter-University Consortium: JNU; Jammu; Kashmir; Sikkim (2012-2020) and the Making SIS Visible (2008-2013) as well as contributes as the Editor-in-Chief of Environmental Policy and Law (IOS Press: Amsterdam).