Africa is taking a stand on the climate crisis at the world’s highest court — The world should listen

Last week the International Court of Justice (ICJ) kicked off the hearing of oral arguments in a request for an advisory opinion that will determine the accountability of states for climate change. 

In this request, spearheaded by the island state of Vanuatu, the ICJ has been asked to confirm the obligations of states under international law to ensure the protection of the climate system from greenhouse gas (GHG) emissions, and the legal consequences wheresStates have caused significant harm to the climate system.

An interesting, but unsurprising, trend has emerged from the ICJ proceedings, as they draw to a close, with two clear and polarised positions.

On the one end we see the historic GHG emitters – the developed countries and petrostates, the likes of Germany, the UK, Canada, China, India, the US, Russia, Saudi Arabia and Kuwait – arguing that the climate treaties already in place are the only international law mechanisms within which climate change must be regulated. They argue that international human rights law is not applicable to climate obligations, and that the suite of international laws governing state responsibility for harms caused, would not be suitable in the context of climate change. 

You can understand why: reparations. Historic emitters have long gone to great pains to emphasise that they have no legal obligations to pay reparations, and to ensure that any climate money paid over is through their own generosity, not because of any legal liability. 

On the other end, we see the countries that stand to lose the most from the effects of climate change, while having contributed the least, making compelling arguments for justice. They are calling for large emitters to be held legally accountable for climate harms.  

Small island states threatened existentially by sea-level rise, and developing states, including a large number from Africa (Cameroon, Burkina Faso, Ghana, Namibia and Kenya, among them), have come out strongly, arguing that international customary law and long-recognised rights such as the right to self-determination, are indisputably affected by climate change, and there must be recourse for this under international law, beyond what is written in climate treaties such as the Paris Agreement. These states are arguing that there is indeed a legal duty for reparations for climate harms caused by high-emitting states, and that existing climate treaties simply don’t provide adequate remedies.

The African Union (AU), too, is saying that states responsible for harming the climate system must cease their wrongful conduct and provide reparations.

It is not surprising that many African states are taking this stance. Africa is particularly exposed to the impacts of climate change. It needs, and already spends, substantial resources to respond to climate events. Africa’s history of colonial exploitation, debt and barriers to participation in global trade, also place it starkly on the back foot when it comes to being able to adapt and address climate impacts. Yet, the entire continent of Africa accounts for less than 4% of the world’s greenhouse gas emissions – the smallest share, among all the world’s regions. 

A 2022 study and modelling by Calahan & Mankin demonstrates how the culpability for warming rests primarily with a handful of major GHG emitters, and this warming has resulted in the emitters’ enrichment at the expense of the poorest people in the world.  

To date, any money that has trickled down to affected states has been nowhere near enough. To make matters worse, much of the climate finance received has been in the form of loans. Seeking to cover these costs with loans is simply not sustainable. African states face a crippling financial cycle of borrowing to rebuild after extreme weather events, leaving them trapped in debt and unable to recover fully, or prepare for worsening climate impacts. Moreover, they do not want to have to loan money to address harms that they did not cause. The ICJ’s decision could start to change this. 

Climate reparations