International Court of Justice Advisory Opinion on Climate Obligations

On July 23, 2023, the International Court of Justice (ICJ) released an advisory opinion regarding the obligations of countries to reduce anthropogenic greenhouse gas emissions and the legal consequences of failing to meet these obligations. This opinion has sparked significant discussion, particularly given the context of the U.S. withdrawal from the Paris Agreement.

Key Affirmations for the Global South

• The ICJ emphasizes the significance of the entire climate regime, including the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol, and the Paris Agreement.
• It highlights the obligations of developed nations to provide climate finance, technology transfer, and capacity building to developing nations as outlined in the UNFCCC.
• The opinion reinforces the importance of Annex I and Annex II countries in the UNFCCC, stating developed countries have additional obligations.
• The principle of Common But Differentiated Responsibilities and Respective Capabilities (CBDR&RC) is identified as a core guiding principle for implementing climate change treaties.
• It acknowledges the dynamic nature of what constitutes 'developed' and 'developing' countries with the phrase "and in the light of national circumstances" from the Paris Agreement.

Contentions and Interpretations

• The ICJ's opinion aligns with the narrative of developed countries and some developing and vulnerable nations regarding the Paris Agreement's interpretation.
• The Court suggests that the temperature target of limiting global warming to 1.5 degrees Celsius supersedes the original "well below 2 degrees Celsius" goal of the Paris Agreement.
• This conclusion is contentious, especially as the 1.5-degree limit is nearing, and the opinion does not address the consequences of surpassing this threshold.
• The Court's focus on the 1.5-degree target appears to be influenced by selective references to the IPCC's Sixth Assessment reports without considering equity.

Enforcement and Obligations

• The opinion lacks a stringent enforcement framework for climate obligations, considering them obligations of conduct rather than guaranteeing outcomes.
• While it reiterates the need for fulfilling procedural obligations like submitting Nationally Determined Contributions, it does not enforce stronger obligations of result.

Challenges for the Global South

• The opinion overlooks the dual challenge for the global South: meeting energy needs for development and requiring finance and technology for low-carbon growth.
• Judge Xue Hanqin criticizes the opinion for not addressing the need for an international economic system supporting sustainable growth through cooperation.

Implications and Conclusion

• The opinion may lead to further national or regional litigation, potentially allowing affected countries to claim reparations or compensation.
• The need for establishing attribution, "wrongfulness," and causation in these claims is emphasized.
• The opinion is unlikely to substantially alter global climate negotiations, as it echoes existing divides rather than resolving them.
• While it may represent some progress, several judges view the opinion as a missed opportunity rather than a transformative intervention.