States Individually Accountable For Contributions to Climate Change—Fiji

By Tanka Dhakal
THE HAGUE, Dec 5 2024 – At The Hague, the United Nation’s highest court heard Fiji, a small island nation, lay out its arguments on the threat posed by climate change and the legal obligations, especially those of developed nations.

On Wednesday, December 4, 2024, Fiji argued that the failure to act on climate change is a violation of international law and that nations have a duty to prevent harm, protect human rights, and secure a livable future for all.

Luke Daunivalu, Permanent Representative of Fiji to the UN in Geneva, laid out the background of suffering caused by sea level rise and worsening hazards on people who bear the brunt of climate impacts.

“Fiji stands before here, not only for our people but also for future generations and ecosystems,” Daunivalu said.

“Our people in climate vulnerable countries are unfairly and unjustly footing the bill for a crisis they did not create. They look to this court for clarity, for decisiveness, and for justice.”

Daunivalu was addressing the International Court of Justice (ICJ). At the request of Vanuatu, the UN General Assembly asked the ICJ to issue an advisory opinion on the obligations of UN member states in preventing climate change and ensuring the protection of the environment for present and future generations. While its advisory opinion will not be enforceable, the court will advise on the legal consequences for member states who have caused significant harm, particularly to small island developing states.

Graham Leung, Fiji’s Attorney General, argued that international law imposes clear obligations on states to address climate change.

“We are not here to create new laws, but to ensure compliance with existing international laws.”

Citing the European Court of Human Rights precedent-setting judgment in April this year, which held that Switzerland has a responsibility under the European Convention for Human Rights (ECHR) to combat climate change effectively to protect the human rights of their citizens, Leung said, “States can be held individually accountable for their contributions to climate change. Similarly, it was affirmed that states failing to meet the obligations bear responsibility for their actions.”

U.S. Opposed Creation of New Legal Obligations

While Fiji was demanding more action from the nations who are largely responsible for the human-caused climate change impacts, countries like the United States argued against the creation of new legal obligations or determined reparations and stressed the importance of due diligence in addressing transboundary harm.

Margaret Taylor, an attorney at the Department of State who represented the U.S., said her country “recognizes the climate crisis as one of the greatest challenges humanity has ever faced.

However, climate change was an issue for the entire planet.

“It is global in its causes, resulting from a wide variety of human activities worldwide that emit carbon dioxide and other greenhouse gasses, including super pollutants such as methane. Such activities include not only the burning of fossil fuels for energy production but also agriculture, deforestation, and industrial processes.”

Taylor emphasized that there was already a framework for climate action initiated by the UN Framework Convention on Climate Change (UNFCCC) and the 2015 Paris Agreement and asked the court to preserve and promote the centrality of the UN climate change regime.

The U.S. argued advisory proceeding is not the means to litigate past violations or determine reparations but rather to guide future conduct.

“I want to underscore that there is no basis to apply any bifurcated or other categorical differentiation of duties among states, such as between those characterized as developed and those sometimes characterized as developing. There is simply no legal foundation for such an approach,” Taylor said.

She repeatedly brought up the concept of common but differentiated responsibilities and respective capabilities, reflecting the principle that obligations should be interpreted according to national circumstances.

The U.S. also emphasized its commitment to addressing the climate crisis, aiming to cut greenhouse gas emissions by 50 percent by 2030 and achieve net zero not later than 2050. She focused on the Paris Agreement’s Nationally Determined Contributions (NDCs) and the UNFCCC framework highlighted as central to international cooperation.

Russia Says 1.5°C is Not Binding

At the ICJ, Russia also supported the UNFCCC and Paris Agreement, emphasizing national differentiation in climate efforts and the non-binding nature of the 1.5°C temperature goal. Like the US, Russia also underscored the need for international cooperation and the role of human rights in climate action.

Representing Russia, Maxim Musikhin, Director of the Foreign Ministry Legal Department, said, “There is no basis to consider the States are obligated to adopt measures to limit the global average temperature increase to 1.5°C for similar reasons; the transition from fossil fuels is not a legal obligation but rather a political appeal to states.”

Russia argued that the right to a clean, healthy, and sustainable environment is discussed in the climate change framework, but it has not crystallized in customary international law.

But Spain, who addressed the ICJ before the U.S. and Russia, argued the need for a human rights-based approach to climate change, highlighting the link between environmental degradation and human rights violations. It highlighted the environmental crisis as a global social crisis with a direct impact on the protection and enjoyment of human rights.

Vanuatu’s Disappointment

After the ICJ’s proceeding on Wednesday, Vanuatu expressed its disappointment. Ralph Regenvanu, Special Envoy for Climate Change and Environment for the Republic of Vanuatu, stressed that destruction of the climate system is unlawful, and big polluters must be held accountable.

“We are obviously disappointed by the statements made by the governments of Australia, the United States, Saudi Arabia, and China during the ICJ proceedings. These nations, some of the world’s largest greenhouse gas emitters, have pointed to existing treaties and commitments that have regrettably failed to motivate substantial reductions in emissions.”

Regenvanu said in a statement, “Let me be clear: these treaties are essential, but they cannot be a veil for inaction or a substitute for legal accountability.”

At the court, frontline counties are pushing for clarification of the legal obligations of nations responsible for anthropogenic climate change. On Wednesday, Fiji urged the court to declare the failure to act on climate change a violation of international law and affirmed that states have a duty to prevent harm, protect human rights, and secure a livable future for all.

Leung urged the court, “Let this be the moment when the cries of the vulnerable are heard.”

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