Landmark legal ICJ opinion expected on state climate obligations – and what SA wants

The International Court of Justice (ICJ), the UN’s foremost judicial body, on Friday concluded two weeks of hearings on the “Obligations of States in respect of Climate Change”. With 98 states and 12 international organisations weighing in, the outcome could potentially reshape and reinvigorate international law’s approach to the climate crisis.

The court was tasked with offering an advisory opinion on two key questions:

• What are the obligations of states under international law to safeguard the climate system from anthropogenic emissions; and


• What are the legal consequences when these emissions cause significant environmental harm?

While there is consensus on the applicability of international law to climate change, there are differing views on how this should manifest. Some nations, including the US, Kenya, Mexico and the African Union advocated for a holistic approach that integrates human rights, customary law and the law of the sea.

Judges rise on the final day of a series of hearings at the International Court of Justice in The Hague, The Netherlands, on 13 December 2024, where judges are considering the obligations countries have in the fight against climate change. (Photo: EPA-EFE / Sem Van Der Wal)

This approach underscores the interconnectedness of legal and environmental systems and aligns with treaties such as the United Nations Framework Convention on Climate Change (the Convention), Kyoto Protocol and the Paris Agreement. Others, including BRICS nations such as Brazil, India and China, argue that the Convention’s self-contained mechanisms are sufficient to address the crisis. But what of South Africa?

South Africa’s delegation was led by Ambassador to the Netherlands Vusimuzi Madonsela, Dirco’s Principal State Law Adviser Romi Brammer and Legal Counsellor at the South African embassy in the Netherlands Cornelius Scholtz.

The ambassador began by emphasising South Africa’s disproportionate vulnerability to climate change.

“My own country, South Africa, is especially vulnerable to the vagaries of climate change due to its location in a region with temperature levels that are rising faster than the global average.”

“We are already facing significant challenges of water scarcity and food insecurity, compounded by slow-onset and extreme weather events. The unprecedented severe flooding and destruction of infrastructure that occurred over the past few years is now followed by the onset of a new drought cycle. This has a devastating impact on our people and the country’s ecosystems.”

 

The delegation highlighted the principle of common but differentiated responsibilities (CBDR), stressing that developed countries had to bear greater responsibility due to their historical emissions.

“Therefore, in considering the questions posed to it, the court is invited to have due regard to the complex phenomenon of climate change and the national circumstances of states with different capacities and responsibilities,” said Madonsela. He said the “multilateral climate regime” recognised that “the historical responsibility for emissions [lie] at the doorstep of developed countries, hence the primary burden of responsibility for addressing it rests on their shoulders”.

“Developed countries have accepted legal responsibility for reducing emissions, yet they have largely failed to honour it, and in this regard impacts adversely on the rest of the international community.”

He said that the multilateral climate change regime was centred on the Convention which the ambassador described as “the international community’s collective response to climate change”.

Noting that the Convention focused on sustainable development and the differentiated responsibilities of states, he handed the metaphorical microphone over to Brammer.

“Climate change is intrinsically linked to development and impacts on most, if not all, of the sustainable development goals (SDGs)… The SDGs carry with them responsibilities and obligations for states at both international and national levels, and it is of the utmost importance that the court takes this into consideration,” she said.

“An analysis of climate change law that does not take into account the wider sustainable development agenda, may lead to conclusions that would upend carefully negotiated international and domestic consensus positions that have taken many years to develop. Climate change cannot be elevated above – or separated from – other sustainable development imperatives and obligations through a silo-based approach to state responsibility,” Brammer told the bench of jurists.

“While South Africa fully recognises that there are numerous legal instruments that have relevance, we submit that it would be most appropriate for the court to apply [the Convention], the Kyoto Protocol and the Paris Agreement in answering the questions placed before it, being the most ‘directly relevant applicable law’ governing the obligations of states in the context of climate change.”

She said that because the Paris Agreement and the Convention under which it fell had near-universal membership of all UN member states, the court should be “primarily guided by the obligations contained in these treaties”.

In what was another manifestation of a thread weaved throughout South Africa’s submissions, Brammer asked that the court be mindful of those who were historically responsible for causing human-induced climate change.

 “It is imperative that the court, in its consideration of this advisory opinion, bear in mind the historical responsibility for climate change … It must be stressed that developed countries had the benefit of industrialising at an early stage, which contributed extensively to climate change.

“Developing countries, on the other hand, have not received the economic benefits of industrialisation and are thus faced with the detrimental effects of climate change and little financial capacity to respond thereto.”

She was followed by Scholtz, who explained that the current legal regime was negotiated with great care over many years. Continuing the South African delegation’s emphasis on justice informing the development of the court’s legal opinion, he said that CBDR “is an essential element which the court must consider to ensure that equity and justice prevail”.

“Developed countries bear a greater responsibility to reduce their own greenhouse gas emissions, not only because they have historically contributed significantly more emissions, but also because they have greater resources to invest in a low-carbon future,” said Scholtz.

“There is no question that there are legal obligations on states to take significant and progressively more ambitious action. However, it is important that when reaching any conclusion regarding the obligations of states in respect of climate change, a proper assessment needs to be made of the responsibility of states for historic and current emissions, as well as their specific national circumstances, including their varying levels of development.”

“The court’s advisory opinion presents a rare opportunity to take stock in a systematic way of the international law principles applicable to climate change that have developed over more than three decades. It is an opportunity to remind states of the legal obligations that they have agreed to.”

The court is expected to issue its opinion next year. DM

https://www.youtube.com/watch?v=REeWvTRUpMk