Could you explain the background and purpose of these ICJ advisory proceedings on climate change?

On December 20, 2022, the United Nations General Assembly (UNGA) adopted Resolution A/RES/77/161, formally requesting the International Court of Justice (ICJ) to provide an advisory opinion on the obligations of States regarding climate change. Specifically, the ICJ was asked to clarify these obligations under international law and to examine the legal consequences of any past, present, or future breaches of these obligations.

The small Pacific island nation of Vanuatu played a pivotal role in initiating these proceedings by spearheading a global campaign to seek this advisory opinion from the ICJ, aiming to bring this critical issue to the forefront of international legal discourse.

How do ICJ advisory opinions differ from contentious cases ?

Unlike contentious cases, which involve disputes between States, advisory opinions do not have binding force. However, they carry significant legal weight and moral authority. The ICJ's advisory opinions are intended to clarify legal questions and provide guidance on key issues of international law. The ICJ has rendered around 30 such advisory opinions in the past.

In the context of climate change, the ICJ advisory opinion will provide crucial legal clarity on the scope of the obligations of States to protect the climate system and the legal consequences of the failure to do so. It will most probably also guide national and international climate policies as well as support efforts to address the global climate crisis more generally.

In parallel to the ICJ proceedings, there have been advisory opinion requests on climate change before two other international courts, namely, the Inter-American Court of Human Rights (IACHR) and the International Tribunal for the Law of the Sea (ITLOS). The latter delivered its opinion on 21 May 2024 on the responsibilities of States in preventing and mitigating the effects of climate change on the marine environment. The ICJ proceedings are distinct in their broader scope, focusing on the general obligations of States under international law.

How are African states involved in the proceedings and what are their primary objectives?

Following the ICJ’s invitation, 91 participants filed written statements in April 2024. These included over 70 States (including 19 African States), a number of regional organisations such as the European Union, the African Union (which represents 55 African States) and the Organization of African, Caribbean and Pacific States, as well as several non-governmental organisations such as the Pacific Islands Forum Fisheries Agency. A second round of written submissions were exchanged in August 2024 ahead of oral hearings which will be held in December 2024. There are now 115 parties who have participated by submitting written statements and/or comments and/or are scheduled to appear in the oral hearings.

African parties are seeking to ensure that the unique vulnerabilities and minimal contributions of African States to global greenhouse gas (GHG) emissions are recognized and addressed.

Their participation is crucial; it brings to the forefront the disproportionate impact of climate change on Africa and amplifies calls for equitable solutions and reparations in accordance with international law.

What are Africa’s contributions to GHG emissions, and how is it affected by climate change?

According to a report in 2022 by the United Nations Intergovernmental Panel on Climate Change (IPCC), Africa contributed only 3% to the cumulative production-based CO2 emissions from fossil fuels and industry from 1850 to 2019. This figure increases to 7% when emissions from land use, land use change, and forestry are included. As the continent with the lowest per capita GHG emissions, Africa’s responsibility in causing climate change is negligible.

Yet, it faces its most disastrous effects.

Despite its low emission levels, Africa is suffering more than any other continent from the impact of climate change. The continent, in part due to its unique geographical and socio-economic conditions, and history, faces severe challenges, including increased heatwaves, heavy precipitation, droughts, loss of biodiversity, reduced food production, water shortages, loss of lives, and reduced economic growth.

What efforts has Africa undertaken to combat climate change, and what are its expectations from these proceedings?

Africa has undertaken several initiatives to combat climate change. The Great Green Wall initiative aims to combat desertification and restore degraded land across the Sahel region, whilst the Nairobi Declaration, adopted in September 2023, acknowledges the urgent need for concerted action to lower emissions and reduce GHG concentrations. Additionally, the African Continental Free Trade Area (AfCFTA) promotes sustainable development and green growth across the continent. These efforts demonstrate Africa's commitment to addressing climate change despite its limited contributions to global emissions. Notably, its States are among those having the most ambitious NCTs.

Africa has not had its fair share of the benefits that come with the fight against climate change, such as access to carbon markets, the transfer of green technologies and investment in renewable energy. Scientific experts have demonstrated that the current adaptation finance provided by developed countries to African countries is insufficient to meet adaptation needs.

In the current proceedings, African States are therefore calling for, inter alia, financing, from those countries which have the most contributed to climate change, to support mitigation and adaptation efforts, as well as technology transfer, and capacity-building.