Port Vila in Vanuatu. Representative image. Photo: gérard/Flickr CC BY SA 2.0
- Vanuatu published a draft resolution seeking a non-binding advisory opinion from the ICJ on the obligations of states with respect to climate change, raising two seminal questions.
- Obligations of states to protect climate systems have been the focal point of climate conferences and have been spelt out in international legal instruments too.
- The question of legal consequences for states that have caused harm deserves special attention because it breaks new ground by seeking to establish a direct link between liability and losses and damages.
On November 30, 2022, the Republic of Vanuatu published a draft resolution seeking a non-binding advisory opinion from the International Court of Justice, on the obligations of states with respect to climate change. The monumental resolution drafted by Vanuatu, along with a growing coalition of about eighty states, raises two seminal questions. First, what are the obligations of states under international law with respect to the protection of climate systems for present and future generations? Second, what are the legal consequences under these obligations for states which, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment? The second question is raised particularly in the context of harm caused to small island states (SIDs), other vulnerable states, and individuals in the present and future generations.
Obligations have been the focal point of climate conferences and have been spelt out in international legal instruments too. However, the question of legal consequences for states that have caused harm deserves special attention. Going beyond mitigation and adaptation obligations, the question relates to liability for harm from climate change that has already materialised, i.e., losses and damages. Therefore, implicit in the question is determining which states will suffer the legal consequences, i.e., which states are liable for these losses and damages. Accordingly, the draft resolution breaks new ground by seeking to establish a direct link between states’ liability and losses and damages.
However, successfully establishing this link will not be as straightforward as it seems. There has been a long-standing pushback against linking liability to losses and damages. In that, liability is based on a state’s historical greenhouse gas emissions, which have been disproportionately high for developed countries. Since current losses and damages are most likely a consequence of these historical greenhouse gas emissions, developed country parties have resisted linking liability to losses and damages. For example, paragraph 51 of the decision adopting the Paris Agreement clearly states that Article 8 of the Agreement on Loss and Damage, “does not involve or provide a basis for any liability or compensation”. Therefore, arguably, the Article itself only creates obligations and not liability.
This is rather unsurprising since historical responsibility has always been a sore spot. Even as a ground for determining states’ mitigation and adaptation obligations, it attracted significant contestation. I have explained this comprehensively here. Briefly, under the United Nations Framework Convention on Climate Change and Kyoto Protocol, historical responsibility was used as a ground to determine which states will have mandatory mitigation obligations. In line with the principle of equity, historically high emitters, i.e., developed states, were to undertake mandatory mitigation measures. Accordingly, developing and underdeveloped countries were only to undertake adaptation measures.
This divided the negotiations into two camps. Developed countries refused to undertake any mandatory mitigation obligations until developing countries also undertook similar commitments, though with a different length and breadth. On the other hand, developing and underdeveloped countries stood firm on the stance that only developed countries should have mandatory mitigation obligations. After decades of climate inaction, in 2015, these positions finally reconciled under the Paris Agreement. However, it effectively obliterated historical responsibility. Obligations relating to mitigation, adaptation and loss and damage, have been placed on all states, subject to their national circumstances. Therefore, let alone imposing liability, historical responsibility as a ground for imposing any obligation too, has been contested and subsequently, abandoned.
Against this backdrop, indeed, the question drafted by Vanuatu is pivotal. What remains to be seen is the response in the UN General Assembly once the resolution is tabled, particularly from historically high emitters. Perhaps the response will also rest on the anticipated nature of ‘legal consequences.’ For example, any legal consequence in the form of compensation, or increased mitigation targets may not be welcome; in such a case, developed countries may continue to resist the linkage of liability with losses and damages.
Kanika Jamwal, Doctoral Student, Faculty of Law, National University of Singapore.