Unpacking Key ICJ Questions on Climate Obligations
On December 13, 2024, the International Court of Justice (ICJ) concluded the hearings of the advisory proceedings on State obligations in respect of Climate Change. During the two weeks of the hearings, 96 States and 11 international organizations presented oral arguments before the Court in The Hague. On the last day of the hearings, judges posed four questions to participants to be answered within a one-week timeframe. The Judges enquired about State obligations in relation to fossil fuels; the interpretation of Article 4 of the Paris Agreement; the content of the right to a clean, healthy, and sustainable environment; and the significance of declarations made by some States on becoming parties to the UN climate treaties– questions going to the very heart of some of the most controversial issues that arose during the hearings. This blog post will provide a brief exploration of the first two questions and issues raised.
Phasing out fossil fuels
Judge Sarah Cleveland highlighted that several Participants had referred to the climate change impacts of fossil fuel production and corresponding referred international obligations of States. Indeed, during the proceedings, several States, including Tuvalu, Vanuatu, Bangladesh, the African Union, and the Melanesian Spearhead Group, presented arguments on this issue – including arguments that, under international law, States must phase out fossil fuels as cessation of wrongful conduct and terminate all subsidies to this industry. In opposition, a minority of States, including Saudi Arabia, Egypt, and China, took issue with this position, highlighting the dangers this would pose for their economies. In this regard, Judge Cleveland asked, “What are the specific obligations under international law of States within whose jurisdiction fossil fuels are produced to ensure protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases, if any?”, including those relating to subsidies.
Fossil fuels (coal, oil and gas) represent the largest source of GHG emissions, accounting for 75% of global emissions, and, thus, their use considerably contributes to climate change, harming the climate system and other parts of the environment, and threatening human rights worldwide. The risk inherent in fossil fuel production and use is unquestionable; as the IPCC has recently noted, no more fossil fuel sources can be opened if States are serious about limiting global temperatures below 1.5ºC. Indeed, emissions from current fossil fuel sources are more than sufficient to cross this temperature guardrail. Yet, according to a UNEP report, current fossil fuel production plans still envision more than double the amount of fossil fuels in 2030 than would be consistent with limiting warming to 1.5ºC.
Due to their significant adverse impact on the environment, States have obligations under international law with respect to GHG emissions, which logically extend to the production and use of fossil fuels. While this blog post cannot exhaustively refer to all relevant international obligations, one worthy of emphasis lies in States’ long-standing duty, under customary international law, to take all appropriate measures to ensure that activities within their jurisdiction or control do not cause significant harm to the environment of other States. This preventive duty, often referred to as the prevention principle, requires States to act with due diligence by adopting all reasonable measures to prevent significant harm to the environment, and its components, including the climate system.
Because due diligence is by nature non-prescriptive, adequate measures for the prevention of transboundary harm encompasses a litany of conduct, including, inter alia, regulating potentially harmful activities and monitoring the conduct of non-State actors. The requisite due diligence is proportional to the nature of the risk, which – as concluded by ITLOS – is exceedingly high in relation to climate change, thus requiring stringent diligence. Similarly, the ECtHR has ruled that States have a narrow margin of appreciation in determining whether or not to pursue measures to avoid catastrophic climate change. Considering the foreseeable risk of significant transboundary environmental harm, States must take all necessary steps to rapidly reduce and progressively phase-out the exploration, exploitation, support, authorization, and commercialization of fossil fuels.
The due diligence required is modulated by the means at the disposal of each State (Pulp Mills, para. 101). Concurringly, under the cornerstone principles of equity and common but differentiated responsibilities and respective capabilities (CBDR-RC) , States must ensure a just and equitable transition away from fossil fuels, in accordance with their respective capacities and responsibilities. In practice, we argue that this requires that major historical emitters immediately cease all fossil fuel production, subsidies, and other forms of investment in this industry. Developing nations who rely on fossil fuels to fulfil critical priorities, like alleviating poverty, must also transition away from fossil fuels – albeit progressively and in relation to their capabilities. In this latter case, international cooperation and adequate finance mechanisms that do not impose further debt on developing nations is urgently needed to ensure deep and rapid cuts in emissions.
While the heavy reliance on fossil fuels poses significant challenges for States now tasked with phasing them out, it remains an unavoidable necessity. Climate change presents an existential threat to humanity and is, as South Africa argued, exacerbating developmental challenges, like food and water insecurity, increased inequality and poverty, and threatening entire economies. Despite the complexities—economic and otherwise—of phasing out fossil fuels, the far greater threat lies in the catastrophic consequences of climate change, which will cripple economies and amplify the long-term damage caused by short-sighted actions of major polluters.
A teleological interpretation of Article 4 of the Paris Agreement
Judge Dire Tladi inquired about the interpretation that was forwarded by several participants in relation to Article 4 of the Paris Agreement. These argue that when applying a literal, contextual, or sometimes systematic interpretation of Article 4, any of the obligations States ‘may’ have under Article 4 in relation to nationally determined contributions (NDCs) are merely procedural obligations, as, for instance, suggested by the Scandinavian bloc. In light of this, the Judge asked whether, applying a teleological approach to treaty interpretation, the object and purpose of the Paris Agreement and the climate change treaty framework in general, has any effect on this interpretation, and if so, what this effect is.
Arguments championing the ‘procedural’ nature of obligations under Article 4 of the Paris Agreement often allege that: 1) this provision is non-binding, 2) any obligation is merely of conduct rather than result, and 3) States only have to prepare and submit their NDCs, but they are not obligated to comply with them. Such arguments were forwarded, for instance, by the USA, Germany, Saudi Arabia, and OPEC, who aimed at reducing the legal obligations States have under the Paris Agreement to voluntary political commitments that cannot be legally enforced.
Judge Tladi asked specifically about the interpretation of NDC-related obligations in light of the object and purpose of Paris and other climate agreements. Just like a textual and a contextual interpretation, the teleological interpretation is also envisioned and required by Article 31(1) VCLT, which calls for a treaty to be interpreted “in the light of its object and purpose”. Thus, this method of interpretation is not only important when applying the rules of treaty interpretation but necessary when interpreting any treaty – this being so especially in light of the specific objective set out in the Agreement and the increasingly shorter timeframe available for its achievement. Indeed, according to the IPCC, under current NDCs global temperatures will likely surpass the Paris Agreement’s temperature thresholds (also see Production Gap Report).
The object and purpose of the UNFCCC, enshrined in its Article 2, is to achieve the “stabilization of greenhouse gas concentration in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system […] within a timeframe sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner”. Importantly, said article expressly states that this is also the ultimate objective of “any related legal instruments that the Conference of the Parties may adopt”. Hence, this automatically also constitutes the ultimate objective of the Paris Agreement.
Indeed, the object and purpose of the Paris Agreement treaty is to enhance the implementation of the UNFCCC and to “strengthen the global response to the threat of climate change”, including holding global temperature to well below 2ºC and, ideally, 1.5ºC; increasing adaptation and resilience capacities; and adequately adapting finance flows. Additionally, Article 4(1) expressly states that “in order to achieve the long-term temperature goal set out in Article 2, Parties aim to reach global peaking of greenhouse gas emissions as soon as possible”.
It, thus, becomes clear that these agreements were made with one ultimate objective: to achieve the stabilization of the climate system within a certain timeframe, whereby NDCs under Article 4 are meant to further this objective by achieving the long-term temperature goals set out in Article 2. Now, the obligation to communicate NDCs is, in fact, a procedural obligation. However, States must also act with due diligence in taking necessary measures, grounded in the best available science, that are suitable to achieve the overall objectives of the Paris Agreement and their NDCs, including limiting warming below 1.5ºC. This includes “preparing”, “maintaining”, and “pursuing domestic mitigation measures, with the aim of achieving the objectives” of their NDCs. Moreover, States have a clear obligation under Article 4(3) to ensure that their NDCs progressively reflect “[the parties] highest possible ambition”.
In this regard, Vanuatu submitted that the “UNFCCC and the Paris Agreement contain binding GHG mitigation obligations for Parties”, whereby Articles 4(1) and 4(2) of the Paris Agreement contain “substantive obligations for ‘all Parties’ to both formulate and ‘implement’ national and regional programmes to mitigate climate change and facilitate adaptation to climate change”. These are substantive obligations that require more of States than merely submitting NDCs every five years. Therefore, article 4 of the Paris Agreement carries with it specific substantive obligations to achieve the goals of the treaty regime, which requires States to implement their current NDCs and progressively increment their ambition.
Conclusion
Treaties are designed to translate objectives into obligations. In the ICJ’s climate case, addressing State duties to protect the environment requires confronting the production and use of fossil fuels, given their central role in the crisis. Obligations under the UN climate framework, particularly on NDCs, must be interpreted as requiring States to take concrete, science-based actions that reflect their highest possible ambition. The ICJ’s questions highlight the critical need to clarify States’ legal obligations under international law to address fossil fuel production and ensure that NDCs meet the substantive requirements necessary to achieve the objectives of the global climate regime.
