PREMIUM TIMES NG
International courts exist to adjudicate between aggrieved state and non-state parties and deliver justice. Globally, the 10 per cent of households with the highest per capita emissions contribute 34-45 per cent of global greenhouse gas emissions while the bottom 50 per cent contribute 13-15 per cent. The top one per cent of emitters globally each had carbon footprints of over 50 tonnes of CO2 in 2021, more than 1,000 times greater than those of the bottom one per cent of emitters. However, the bottom one per cent are less prepared to adapt to the effects of climate change and live in some of the countries most affected by climate change-induced loss and damage.
In that case, why can’t the states at the bottom simply sue the states at the top, in international courts, to either reduce their emissions or pay the cost of the loss and damage?
An earlier piece has examined the potential of climate litigation in Africa as part of the Global South countries, the challenges involved and how these can be circumvented. It is observed that even as climate litigation as a veritable tool in advancing climate justice gains popularity, it seems to be wielded more by individuals, human rights groups, communities, indigenous groups, NGOs, and business entities amongst others but hardly by the victim state parties against the erring state(s). Even when a victim state party threatens climate litigation, following through with requisite judicial action remains a challenge.
A striking case in illustrating this observation is the case of Tuvalu vs the United States of America and Australia. Tuvalu, a small island nation located in the Pacific Ocean, in 2002, threatened to file a claim against the US and Australia in the International Court of Justice (ICJ) for their contribution to climate change. The two states, according to Tuvalu, had failed in their responsibility to stabilize emissions of greenhouse gas concentrations as required by the United Nations Framework Convention on Climate Change (UNFCCC). The change in climate has caused the melting of ice caps, which consequently leads to rising sea levels. This currently threatens the territory of Tuvalu, as the island nation has an average elevation of two meters above sea level and is therefore extremely vulnerable to changes in sea levels.
To date, Tuvalu has not officially filed any claim against any state at the ICJ or any other forum. The reason for this can be understood by looking at the legal obligations involved in both invoking the jurisdiction of the ICJ and those flowing from various international environmental obligations.
The most important reason is that it is difficult to successfully bring a case to the Court. On the one hand, only states may be parties in contentious cases before the Court. Moreover, the ICJ’s jurisdiction can only be invoked where the parties have mutually consented to bringing the case before the Court. Article 36(1) provides that jurisdiction is established ad hoc on the basis of mutual consent. It also provides that the Court’s jurisdiction can extend to all matters specifically provided for in the Charter of the United Nations or treaties or conventions in force.
