U.S. Makes Oral Argument In World Court’s Climate Change Opinion

On December 4, the United States made an oral statement in the International Court of Justice’s Advisory Opinion relating to the Obligations of States in respect of Climate Change. At the request of the United Nations General Assembly, the ICJ will determine the existing financial liability of countries for their contribution to climate change and what actions countries must take to prevent climate change. The U.S. argued that they are not financially liable for past greenhouse gas emissions and that current human rights laws do not provide for a right for a healthy environment.

On March 29, 2023, at the request of Vanuatu, the UNGA asked the ICJ to issue an advisory opinion on the legal obligations of countries in preventing climate change. The opinion, while non-binding, will give an indicator of how the Court may interpret future climate related litigation and guide future legislative development.

The UNGA asked two questions:

“What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations”?

“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 and other parts of the environment, with respect to: (i) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change? (ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?”

On December 2, Vanuatu and the Melanesian Spearhead Group opened the hearings giving, in essence, an opening argument. Over 100 countries and parties will present oral statements in 30 minute increments from December 2 – 13. Notably, the oral statements were provided to the court in advance, with citations. Verbatim written transcripts of the daily hearings are posted on the Court’s website. Written statements will be released daily as parties make their oral statements. The hearings are streamed on the Court’s website and on UN Web TV.

The U.S. Legal Argument

Margaret Taylor, an attorney at the Department of State, presented on behalf of the U.S. In her opening statement, Taylor acknowledged that anthropocentric climate change is a threat, stating,

“The United States recognizes the climate crisis as one of the gravest challenges humanity has ever faced. It is global in its causes, resulting from a wide variety of human activities worldwide that emit carbon dioxide and other greenhouse gases, 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.”

Thus far, every country making an oral statement has acknowledged a need to address climate change.

In looking at the first question posed to the Court, Taylor cited the UN Framework Convention on Climate Change and the Paris Agreements as the governing documents in this area. She defined them as “freestanding international agreements” that take a “carefully calibrated approach” to climate change.

Addressing the second question relating to legal obligations, Taylor looked primarily at the Paris Agreement. Similar to Germany’s argument that highlighted the differences between legally binding obligations and aspirational goals in the Paris Agreement, Taylor leaned on reporting requirements. Each party is required to submit National Determined Contributions. However, each party is allowed to define their own NDC in “common, but differentiated responsibilities” to address climate change.

Taylor asserts that this is a binding obligation of effort that must be performed in good faith, not a binding obligation of result. Despite leaning on the language of “common but differentiated responsibilities,” Taylor asserts it is not a principle of law.

In Vanuatu’s opening and written statements, they asserted that the duty of due diligence by countries to prevent acts within their borders that will adversely impact other countries is inclusive of climate change. Vanuatu relied heavily on the ICJ’s 1996 Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons.

The U.S. offered a counter argument, stating “it should be emphasized that any such obligation to prevent or at least minimize significant transboundary environmental harm depends upon States gaining general awareness of such harm or the risk thereof.”

A major argument by Vanuatu, and by the climate change movement as a whole, is the linking of human rights with climate change. A recent ruling from the European Court of Human Rights found that “protection from the impacts of climate change” is a human right under the European Convention on Human Rights. The ECtHR ruling is playing a significant role in the ICJ arguments.

Interestingly, Taylor stated the U.S. joins “others in acknowledging that the adverse effects of climate change and the transformations required to address it can impact individuals’ enjoyment of their human rights.”

However, she pivoted to assert that current international human rights law does not create an obligation for countries to reduce GHG emissions. “Nor does it currently provide for a human right to a healthy environment, although the United States remains open to participating in a State-led process to develop such a right.”

Finally, addressing the legal consequences of climate change, Taylor took issue with other parties approach to the question. Many of the developing countries are looking to this opinion for retroactive reparations for climate change.

However, Taylor notes that “the questions presented to the Court seek a forward-looking response to guide the General Assembly and United Nations Member States on their future conduct. An advisory proceeding is not the means to litigate whether individual States or groups of States have violated obligations pertaining to climate change in the past or bear responsibility for reparations, as some Participants have suggested.”

To establish a legal liability, there must be a link between and action and damage. This causal link must show an intentionally wrongful act and a specific injury. Vanuatu asserted that the link is between high GHG emitting countries and smaller countries adversely impacted by climate change.

In response, Taylor stated, “establishing responsibility to make reparations for a specific climate-related injury would be particularly complicated because international law requires a ‘sufficiently direct and certain causal nexus between the wrongful act . . . and the injury suffered’. Our overarching point is that complexity is not a reason to relax or dispense with this basic legal requirement.”

As a whole, the U.S. admitted certain required action and limited liability. However, it dismissed the argument that customary international law and international treaties create liabilities beyond those agreed upon in the UNCCC and Paris Agreement.

The U.S. Legal Team

Margaret Taylor, Legal Adviser, United States Department of State; Richard Visek, Principal Deputy Legal Adviser, DOS; Steven Fabry, Deputy Legal Adviser, DOS; Kathryn Youel Page, Assistant Legal Adviser, DOS; John Daley, Deputy Assistant Legal Adviser, DOS; Joanna Coyne, Attorney-Adviser, DOS; Jonathan Davis, Attorney-Adviser, DOS; Isaac Webb, Special Assistant to the Legal Adviser, DOS; Alison Welcher, Legal Counselor, Embassy of the United States of America in the Kingdom of the Netherlands; Terra Gearhart-Serna, Deputy Legal Counselor, U.S. Embassy in the Netherlands.