The Philippines and Bangladesh have urged the world’s highest court to recognise climate change as a violation of laws between nations, as the landmark hearings held by the International Court of Justice (ICJ) enter its final week in The Hague.
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Coming on the heels of COP29, where an agreed-upon climate finance goal still fell short of expectations from developing countries vulnerable to the impacts of climate change, the hearings at the ICJ are viewed by observers as another potential avenue to advance the case for climate reparations.
The series of hearings is also the culmination of years of campaigning by a group of students from Pacific nations and a coalition of small island states and vulnerable countries who sought to clarify the legal responsibilities of nation-states in relation to climate change. At the start of the two-week hearings last Monday, the ICJ first heard from Vanuatu which highlighted how the responsibility for the climate crisis lies 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.
Among Asian states which presented their arguments in the hearings at the Peace Palace in The Hague where the ICJ has its seat in, the Philippines and Bangladesh delivered some of the strongest statements for the recognition of climate change as a violation of international law.
“On customary international law, the Philippines submits that the obligation not to cause transboundary harm … compels all states to ensure that activities within their territory and control must respect the environment of other states or of areas beyond national jurisdiction,” said Carlos Sorreta, permanent representative of the Philippines to the United Nations in Geneva, when he presented Philippines’ argument before ICJ judges on Tuesday.
“The commission of such an internationally wrongful act should trigger state responsibility with its necessary consequences and carry with it the obligation of the responsible state to cease the wrongful conduct and make full reparation thereafter,” he added.
Sorreta cited a unique mechanism under Philippine environmental law that gives the people constitutional right to a healthy environment, called the writ of kalikasan, or a ‘writ of nature’, which he proposed can be adopted in the global setting “to afford serious states and their peoples with immediate recourse and relief from environmental damage” arising from breaches of state obligations under international law.
Lawyers and representatives from more than 100 countries and organisations have been making submissions before the ICJ The Hague to find a blueprint for how countries should protect the environment from damaging greenhouse gases. Image: ICJ
Bangladesh echoed the stand of some climate-vulnerable states that climate change is a human rights issue, saying that the lack of progress at COP29 gives the court an “essential role in redressing this injustice and clarifying the obligations of all states, especially the major polluters”.
“In the face of this global crisis, Bangladesh has confidence in the court in delivering a strong advisory opinion commensurate with the immense scale and gravity of the climate crisis. It cannot be the case that international law has nothing to say in the face of this existential threat to specifically affected states such as Bangladesh,” said Tareque Muhammad, ambassador of Bangladesh to the Netherlands.
The Philippines is no stranger to typhoons, but scientists have noted that the number of tropical cyclones that has hit the archipelago has been increasing by 210 per cent since 2012. In fact, the archipelago faced six consecutive severe tropical storms for the month of November alone. Bangladesh has its own history of violent storms, with the last one in May leaving 30 million people without electricity and at least 10 people dead.
At the hearings, Indonesia, Southeast Asia’s largest economy, on the other hand, had its counsel argue that there are currently no specific obligations under international human rights law for countries to ensure the protection of the climate system, despite the growing tendency of international bodies to link human rights law with climate issues.
“While noting the attempt to develop a new human rights instrument to a decent, healthy environment, the fact of the matter is that such a human rights instrument is not yet discussed in any multinational framework,” said Arif Havas Oegroseno, Indonesian ambassador to Germany, at the hearing.
“In this context, state obligations and their implementations relating to the climate system within the framework of human rights, if it exists, should only be limited to their own population within their territories at national level,” said Arif, who recently also was appointed to president Prabowo Subianto’s new cabinet as vice-minister for foreign affairs.
The World’s Youth For Climate Justice, one of the youth-led movements behind the campaign to take climate change and human rights to the ICJ to seek an advisory opinion, describe Indonesia’s stance on climate obligations as a “restrictive interpretation” that risks limiting the legal tools available to fully address climate challenges.
Arif Havas Oegroseno (left), Indonesia’s ambassador to Germany and the country’s vice-minister for foreign affairs, and Amrih Jinangkung, director general for legal affairs and international treaties of Indonesia’s foreign affairs ministry, at the ICJ hearing in The Hague on 5 December 2024. Image: ICJ
Big emitters like the United States and China told the court that sufficient legal frameworks like the United Nations Framework Convention on Climate Change (UNFCCC), the Paris Agreement and the Kyoto Protocol are already in place to deal with climate change.
But Laurence Tubiana, chief executive of the European Climate Foundation and an architect of the 2015 Paris Agreement, said in a statement that the landmark pact should not be misused by countries to “dilute their climate responsibilities and accountability”.
“The Paris Agreement was created as a tool that legally binds countries to display policies and actions, both short and long term, that are consistent with the 1.5 C temperature limit,” said Tubiana.
Legal experts and environmental campaign groups closely tracking the proceedings believe that a strong advisory opinion from the ICJ would provide clarity on the international obligations countries bear in relation to safegaurding their people from the impacts of climate change, as well as the consequences they face if they fail to do so, even as the ICJ says its advisory opinions are not binding.
Experts highlight that the advisory opinion could be a reference point for authoritative documents in future climate litigation and at international climate negotiations such as the COP30 summit next year.
Protesters gather in front of the Peace Palace in the Netherlands to demand climate justice as the International Court of Justice began its hearings on 2 December 2024. Image: Emiel Hornman / Greenpeace
Potential to “cut through political inertia” at COP30
If the ICJ’s advisory opinion is issued prior to COP30, the court’s clarification of rich countries’ legal duties in relation to climate change may help “cut through the political inertia” that has stalled progress in climate negotiations by informing climate policy makers of their existing obligations under international law, said Joie Chowdhury, senior attorney for climate and energy programme of the Center for International Environmental Law (CIEL).
COP30 is set to convene in Belém, Brazil in November next year.
“It will give negotiators from small island states and other climate-vulnerable nations additional legal tools to bolster their position and needs which can provide a firmer basis for multilateral solutions such as those needed to urgently and equitably phase out fossil fuels,” Chowdhury told Eco-Business.
“The opinion could also pave the way for holding polluters more accountable, particularly in areas like loss and damage and climate finance, inside the negotiation rooms and beyond.”
She cited how clarity from the court about the legal obligations of developed states to provide remedy for climate harm could support demands for the loss and damage fund.
At COP29, loss and damage financing was not included within the framework of the climate finance deal. So far the fund has only received unconfirmed pledges of US$731 million, including new commitments made at COP29 from Australia, Belgium, Luxemburg, New Zealand and Sweden.
“An ambitious opinion of the court, as an authoritative interpretation of binding international law, could provide the compass we need to navigate a safe and just future for our communities by finally holding polluters accountable, and in so doing, define the legacy that will be inherited by future generations,” she said.
