A handful of countries should be held legally responsible for the ongoing impacts of climate change, representatives of vulnerable states have told judges at the international court of justice (ICJ).
During a hearing at the Peace Palace in The Hague, which began on Monday, Ralph Regenvanu, Vanuatu’s special envoy for climate change and environment, said responsibility for the climate crisis lay squarely with “a handful of readily identifiable states” that had produced the vast majority of greenhouse gas emissions but stood to lose the least from the impacts.
The court heard how Pacific island states such as Vanuatu were bearing the brunt of rising sea levels and increasingly frequent and severe disasters. “We find ourselves on the frontlines of a crisis we did not create,” Regenvanu said.
The hearing is the culmination of years of campaigning by a group of Pacific island law students and diplomacy spearheaded by Vanuatu. In March last year the UN general assembly unanimously approved a resolution calling on the ICJ to provide an advisory opinion on what obligations states have to tackle climate change and what the legal consequences could be if they fail to do so.
Over the next two weeks, the court will hear statements from 98 countries, including wealthy developed states with the greatest historical responsibility for the climate emergency, such as the UK and Russia, and states that have contributed very little to global greenhouse gas emissions but stand to bear the brunt of their impact, including Bangladesh and Sudan as well as Pacific island countries.
The US and China, the world’s biggest emitters, will make statements too, even though neither fully recognises the court’s authority.
Regenvanu told the court that states continued to emit vast amounts of greenhouse gases in spite of “increasingly dire warnings” from scientists, noting that emissions had increased by more than 50% since 1990.
The court will publish written statements submitted to it as part of the advisory opinion process, a number of which will include personal testimonies from people affected or severely threatened by climate change.
Ilan Kiloe, the legal counsel for the Melanesian Spearhead Group, a regional subgroup that includes Fiji, Papua New Guinea, Solomon Islands and Vanuatu, said: “The harsh reality is that many of our peoples will not survive.”
Kiloe said the climate crisis threatened the right of states to self-determination and that the injustice of climate change was inseparable from colonialism, which these countries had been subjected to by “a few readily identifiable states”.
He said: “We have not yet recovered from the ongoing violence … inflicted on us as we struggle to rebuild and assert ourselves within a system we did not create.”
Margaretha Wewerinke-Singh, the lead counsel for Vanuatu and the Melanesian Spearhead Group, said some states had breached international law through their acts and omissions.
She said this included issuing licences for fossil fuel extraction and granting subsidies to the fossil fuel industry, as well as failure to regulate emissions or to provide finance under the UN framework convention on climate change (UNFCCC). Finance was the main sticking point at the recent Cop29 climate talks, which ended in what negotiators described as a “travesty of justice”.
Wewerinke-Singh said responsible states were required to make full reparation for the injury they had caused and this must be “proportionate to historic contributions to the harm”. She said this could include monetary compensation in addition to cash committed under the UNFCCC.
During the first day of hearings, states tussled over whether their legal obligations extend beyond the UNFCCC. The UN describes the Paris agreement, which was passed in 2015, as a “legally binding international treaty on climate change” but states are free to set their own targets and policies in their nationally determined contributions.
Germany and Saudi Arabia contended that they had no obligations beyond this treaty.
Wiebke Rückert, the director for public international law for Germany, said the Paris agreement struck a “careful balance” between legal and non-legal commitments and any attempts to limit it could seriously endanger the willingness of states to take part in political processes.
But Zachary Phillips, counsel for Antigua and Barbuda, said compliance with the Paris agreement was “necessary but may not be sufficient” to comply with customary international law including the obligation to prevent harm.
Cynthia Houniuhi, the president of Pacific Island Students Fighting Climate Change, the youth group that sought the advisory opinion, said young people had looked to the Paris agreement as an instrument of hope when it was passed in 2015 but it had since been “hijacked” by fossil fuel interests.
“No good faith understanding of the UNFCCC and the Paris agreement can be consistent with the conduct of large emitters,” she said.
As well as states, a select few organisations have been given permission to give statements. These include Opec, the World Health Organization, the EU and the International Union for Conservation of Nature.
The ICJ is one of three international courts tasked with producing an advisory opinion on climate change, alongside the international tribunal for the law of the sea (Itlos) and the inter-American court of human rights.
Itlos was the first to complete its advisory opinion, stating earlier this year that greenhouse gases are pollutants and that states have a legal responsibility to control them that goes beyond the UNFCCC.
The inter-American court held hearings in Barbados and Brazil this year and is expected to be the next to publish its opinion.
The ICJ will take these two advisory opinions into account, as well as significant court judgments from around the world, including a European court of human rights ruling earlier this year that Switzerland had breached the human rights of its citizens by not doing enough to cut national greenhouse gas emissions.
The ICJ says its advisory opinions are not binding. Experts stress that they clarify rather than create new law and will be referred to as authoritative documents in future climate litigation and during international climate negotiations.
