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Can countries be sued over climate change?

Context: Recently the United Nations General Assembly passed a resolution that asked the International Court of Justice at The Hague to provide an opinion on what kind of obligations countries have towards climate change reduction, based on the promises they have made to the UN Framework Convention for Climate Change (UNFCCC). The resolution passed by consensus had been pushed through by one of the smallest countries in the world, the Pacific Island of Vanuatu, an island that was devastated in 2015 by the effects of Cyclone Pam, believed to have been spurred by climate change, that wiped out 95% of its crops and affected two-thirds of its population.

What does the resolution seek?

• The draft resolution invoked article 96 of the UN Charter to ask the ICJ to deliberate on two questions
  • 1)What are the obligations of states under international law to ensure the protection of the climate system for present and future generations?
  • 2) What are the legal consequences under these obligations for states where they, by their acts and omissions, have caused significant harm to the climate system, particularly for Small Island Developing States (SIDS) and for people who are harmed.

• The resolution refers to several international protocols including the Paris Agreement (2015), the United Nations Convention on the Law of the Sea and even the Universal Declaration of Human Rights.
• The entire process is expected to take about 18 months for the ICJ to deliberate and deliver its opinion.

What is India’s position?

• India has thus far been cautiously silent about the move, although it is generally supportive of the need for climate justice, and holding the developed world accountable for global warming.
• The government is understood to have referred the resolution to legal authorities in the country who will look into the implications and international ramifications of the ICJ opinion.
• India has updated its NDC (nationally determined contribution) commitments, as required by the 2015 Paris Agreement and has said it’s on its way to sourcing half its electricity from renewable sources by 2030.
• It is significant that India did not join the overwhelming majority of countries that co-sponsored the draft resolution.
• In the neighbourhood, the list of co-sponsors included Bangladesh, Maldives, Nepal, Sri Lanka, and a number of island countries in the Indian Ocean Region (IOR).
• India is also watching how global powers like the U.S. and China respond to the resolution, as without their support, it will be hard to implement.

Demands in the resolution

• A legal opinion from the ICJ, the highest global court recognised by all 193 UN members, is expected to bolster the efforts under the UNFCCC to ensure all countries work towards mitigating climate change and global warming to the suggested 1.5-2°C limit.
• While it is expected to give its opinion on the basis of the Convention already consented to by all countries, what will be watched closely is what it says about more contentious issues such as climate reparations by the developed world, legal culpability for countries that don’t achieve their NDC promises, and climate support to the most vulnerable parts of the world battling the effects of global warming.
• According to the latest IPCC “Synthesis report”, global climate levels have already increased 1.1 degrees since pre-industrial levels in the past century, and deep cuts in greenhouse gas emissions reductions, as much as by a half are required by 2030 to keep this goal.

Is the advisory opinion of the ICJ binding?

• The ICJ is being asked for an “advisory opinion”, which by definition would not be legally binding as an ICJ judgement.
• However, its clarification of international environmental laws would make the process more streamlined, particularly as the COP (Conference of the Parties) process looks at various issues like climate finance, climate justice, and the most recently agreed to “loss and damages” fund at the COP27 in Sharm El-Sheikh last year.