Submissions from Papua New Guinea laid bear the country's diversity and heightened vulnerability to climate change. Credit: Joyce Chimbi/IPS

By Joyce Chimbi
THE HAGUE & NAIROBI, Dec 6 2024 (IPS)

Kenya agrees with many UN member states testifying before the International Court of Justice (ICJ) that the law of international responsibility should hold countries legally responsible for major damage to the global climate system.

“Responsible states must cease wrongful acts or remedy any omissions harmful to the climate system as well as make reparations for all damage caused by their breach. Such reparation may take the form of compensation for loss and damage. Of course, the court need not definitively pronounce on compensation in the context of historical omissions,” said Phoebe Okowa, a Kenyan lawyer and Professor of Public International Law.

“However, this is a precious opportunity to integrate the corpus juris (body of law) of climate change treaty law and customary international law, including the principle of common but differentiated responsibility, in a way that will assist states in establishing workable frameworks for compensation.”

Okowa was speaking on behalf of Kenya at the ICJ, which is one of 98 countries and 12 organizations participating in ongoing public hearings, contributing to the UN top court’s advisory opinion on the obligation of states to prevent climate change and ensure the protection of the environment for present and future generations.

The ongoing landmark climate change case dates to September 2021, when the Pacific Island of Vanuatu announced its intention to seek an advisory opinion from the ICJ. Vanuatu supported the efforts of a youth group—the Pacific Island Students Fighting Climate Change—who were concerned about the vulnerability of small island developing states in the region to climate change.

Vanuatu then lobbied other countries to support this initiative and formed the core group of UN member states to take the initiative forward to the General Assembly.

In pursuit of this advisory, Ambassador Halima Mucheke on behalf of Kenya said the court “has had numerous participants stress the existential nature of the threat caused by climate change. In response, this court must bring clarity to the law, informed by the perspectives of developing states, particularly those in Africa, where temperatures are rising the fastest.”

“We believe that a clarification of the existing legal obligations will provide much-needed guidance to states, as well as the impetus for the next phase of political negotiations. Kenya specifically invites the court to draw on equitable principles reflected in climate change treaties, such as the principle of common but differentiated responsibilities,” she said.

Fred Sarufa, Permanent Representative of the Independent State of Papua New Guinea to the UN, said in the country’s nearly 50 years of nationhood, this was their first appearance before ICJ because climate change can no longer be ignored. He then proceeded to illustrate the significant issues at stake.

“Papua New Guinea is home to and the custodian of a diverse geophysical and geomorphic landscape, including 20,197 kilometres of coastline, 40,000 square kilometres of coral reefs, one of the highest known levels of marine biological diversity in the world, around 10 percent of the world’s biodiversity in less than 1 percent of the world’s total land area, and the world’s third largest expanse of pristine tropical rainforest, covering 77.8 percent of our total land area,” Sarufa told the court.

Stressing that Papua New Guinea’s biodiversity is directly linked to its unsurpassed linguistic diversity, with over 850 spoken languages, the most in the world. Pila Niningi, the Minister for Justice and Attorney General of Papua New Guinea, discussed the numerous ways that climate change is wreaking havoc.

These include “forcing people to abandon their ancestral lands and territories, altered landscapes and seascapes, disrupted livelihoods, and led to civil unrest among traditional landowners, fighting over increasingly limited land and space. It has also endangered food crops, water and security, and the collapse of traditional and cultural practices and indigenous systems of governance,” Niningi said.

Rising seas have forced the islanders from northeast Bougainville and the people of Veraibari in the Gulf province of Papua New Guinea to abandon their ancestral lands because it engulfed their homes and schools and inundated what remains of the arable land.

This led Papua New Guinea to join other Pacific nations in adopting, within the framework of the Pacific Islands Forum, the Boe Declaration on Regional Security, which affirms, among others, that climate change remains the single greatest threat to the livelihoods, security, and well-being of the peoples of the Pacific.

On her part, Kenya invited the court to confirm that significant financial assistance and technology transfer are binding legal obligations and not matters of discretion.

Professor Dr. Makane Moïse Mbengue from the African Union told the Court the matter on hand was about climate justice, as “climate change is a phenomenon that has not been caused by all states equally, and nor will all states suffer its effects equally.”

He emphasized that science serves as the cornerstone of climate justice for states, peoples, and individuals affected by climate change, underscoring the necessity of protecting the climate system and demanding responsibility from states that have caused harm to it. In this context, he said the African Union welcomes the court’s engagement with experts from the IPCC prior to the commencement of the hearings.

“The African Union notes efforts of certain states, albeit a minority, to negate science and trivialize the ordinary meaning of the terms of the request (for an advisory opinion). Their repeated calls for undue caution now, and in their written submissions, are transparent attempts to dilute the very object of the present proceedings. The African Union respectfully urges the court to dismiss these unfounded arguments,” he observed.

Further inviting the court to “reject the flawed argument, which was repeated again this week, that the relevant obligations are reduced solely to the so-called specialists of the UNFCCC and the Paris Agreement. The same arguments were tried, tested, and defeated before they lost. Nonetheless, they should find no fertile ground before the principal judicial organ of the United Nations, whose advisory opinions have consistently contributed to maintaining the systemic coherence of the international legal system.”

Mbengue said that if the court didn’t say who was responsible, it would be the same as a situation of non-liquet, which means there is no law that applies, and states would be free to keep damaging the climate system. Such an outcome could hardly have been the intention of the General Assembly in seeking this advisory opinion.”

IPS UN Bureau Report

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