Lawfare Daily: Climate on the Docket at the ICJ with Melissa Stewart

[Intro]

Melissa Stewart: What are the legal consequences for states when they have caused significant harm to the climate system and other parts of the environment? And there are other parts of that question that focus on the impact for particularly vulnerable countries that are vulnerable to climate change and then present and future generations that are particularly impacted.

Tyler McBrien: I'm Tyler McBrien, managing editor of Lawfare with Melissa Stewart, an assistant professor of law at the University of Hawaii at Manoa's William S. Richardson School of Law.

Melissa Stewart: Obviously, there were a number of states pushing back against the idea that the law of state responsibility applies in this context, because they've been very clear they don't think that they will have liability under the Paris Agreement or under the climate framework.

So, I think that if the court says that the law of state responsibility applies here, that too would be another win for people who are hoping to see a really progressive decision from the International Court of Justice.

Tyler McBrien: Today, we're talking about the legal questions and main arguments before the International Court of Justice, as it considers states’ obligations with respect to climate change.

[Main podcast]

Melissa, it's so good to have you back on the podcast. Some listeners may remember we last spoke way back in April 2023, which was shortly after, of course, the UN General Assembly voted to adopt the request for an advisory opinion from the ICJ on the obligations of states with respect to climate change.

So before we dig into the oral proceedings portion of the process, which just wrapped up last month, can you remind listeners just how we got here? A, sort of a brief summary of how the idea of the advisory opinion for climate change got to the UN, when it was successfully adopted, and maybe just everything up to the start of the oral proceedings.

Melissa Stewart: Sure. So in terms of how did we get here, as some of our listeners may know, the origins of this request for an advisory opinion actually was a student-led initiative that started in 2019. So we had a group of about 27 students from the University of the South Pacific, who came together with this idea about an advisory opinion before the world's highest court, the International Court of Justice, to discuss what are the obligations of states in respect of climate change.

Of course, this wasn't the first time the idea for an advisory opinion before the International Court of Justice occurred to anyone. There was an effort by Palau and the Marshall Islands back in 2011, but the political climate at the time just wasn't right. It didn't ever reach the floor of the General Assembly. There were some efforts by the United States and others to really discourage these states from pursuing an advisory opinion. So I think when the students were coming to this idea, they were building on prior efforts, but really coming to it at a time when there was more openness and maybe a better political climate for, for this idea.

So they took this idea through advocacy and grassroots efforts and got an endorsement from the Pacific Islands Forum and then support from the state of Vanuatu to take this idea forward to the General Assembly to gain support for a request for an advisory opinion from the International Court of Justice.

Vanuatu certainly wasn't acting alone. They had a core group of states that worked with them to advocate with other states in the United Nations and come up with a question or series of questions that they could present to the Court.

One of the historic aspects of this request is that it is the first time in history that a request for an advisory opinion from the International Court of Justice passed by consensus. So what that means is that there was no dissenting votes. There was no vote at all. It was just unanimous consensus by, by the United Nations. So it really demonstrated overwhelming support for this initiative.

Of course, during the debates, states had an opportunity to sort of say how they viewed, how they interpreted the question or any limits they thought about what the question should be and we can talk in more detail later about particularly the views of the United States. But it was still this historic moment that really gave a lot of momentum to the movement in terms of pursuing this effort for climate justice.

As many of our listeners also may know, this is one of three advisory opinion efforts. So the request for an advisory opinion from the International Court of Justice has been running sort of in parallel with requests to the Inter-American Court of Human Rights and the International Tribunal for the Law of the Sea. Otherwise known as ITLOS, which I will refer to as ITLOS in our conversation.

We have already a decision from ITLOS, International Tribunal on the Law of the Sea, which came out in May of this year. We are still anticipating a decision from the Inter-American Court of Human Rights. They had their own oral proceedings in this past spring, and we expect a decision this coming year.

In terms of the ICJ proceedings, there were written submissions submitted by 91 states and 11 international organizations back in March. This is a historic level of participation from both states and international organization. It is the largest case in the history of the ICJ and it is significant both in substance and scope.

Those states and international organizations were invited to comment on the written statements that was – those were due back in August. And then, of course, we had the oral proceedings, two weeks of oral proceedings. That started in the beginning of December and went from, I think, December 2nd through December 13th, again, but this is the largest case in the history of the ICJ. Many states are participating for the first time and it was a really incredible proceedings to watch and pay attention to.

Tyler McBrien: Right, so there's a lot on the table there and we're going to get into all of it. And I also want to put out there, I mean, as you put numbers to and, and said so well, this is unprecedented participation from states – the highest level the ICJ has ever seen.

And I think it's thanks not only to the issue at hand, which is perhaps the most existential issue facing the world, but also in part, thanks to the same coalitions of youth activists who got the resolution adopted in the first place. So just wanted to put that out there.

I want to get into some of the legal questions on the table for the judges. What are the legal questions that the judges are currently weighing? And what have some of the, the main arguments that you've seen surface either in the written statements or the oral proceedings that wrapped up last month?

Melissa Stewart: Sure. Now before we jump into the legal questions, I do want to just say one more thing about participation, particularly from youth.

One thing that I think was really remarkable about these hearings was just the diversity of perspectives that was heard before the court. The bench of the International Court of Justice is not necessarily known for being the most diverse, but in these proceedings we had not just racial and gender diversity, but geographic diversity.

As I think I already mentioned, some states were participating for the very first time, and there were also efforts by states and international organizations to honor the role of youth in these proceedings. So you had, for example, the Melanesian Spearhead Group gave some time to one of the original climate youth activists. Other states did as well, and it was really powerful to see some of, some of their interventions there.

Tyler McBrien: And sorry, let me just jump in with just a quick follow up on participation, because I've found this to be one of the most interesting aspects, and unprecedented–I keep using that word–is it, is it typical for essentially non states organizations to submit written statements?

And then similarly, what is the precedent here for platforming representatives who are not, you know, attached to a certain state, such as the youth activist you just mentioned. Are these new innovations at the ICJ or do they have precedent?

Melissa Stewart: There is precedent for the involvement of international organizations and there are rules of procedure that the court has in terms of who is qualified to make a statement. So it's not – they could have but didn't involve just open the doors for a broad civil society interventions, but it was limited to a certain number of international organizations that, that had express permission from the Court to issue their written statements.

And in terms of precedent for youth involvement, I know that there was some in the Nuclear Weapons Advisory Opinion, but that was also sort of a grass-led movement effort to get that opinion before the court. I think it is rare in any of these proceedings to have representatives from civil society that are invited by states to speak before the court. One of the reasons is just the extremely limited time that each state is allocated.

So every state was given 30 minutes to speak before the court, which is really not an enormous amount of time. And if you're trying to make the strongest possible legal arguments and really reinforce to the court what they think that they should keep in mind that's just valuable minutes to be get, to be allocated to other, other speakers. But I think it was really important to even give a few minutes of time for the youth to talk about not just the legal arguments, but how this impacts them and their lives and for their communities.

So I think it was a really welcome effort. And I do think beyond the climate change advisory opinions, I do think there's more efforts to have increasing diversity before the court. There's a lot more state participation outside of this case. This was a case in the advisory opinion on the occupied Palestinian territory. There was just a lot more state participation. There's a lot more interventions by states in contentious cases. So I think we'll see more involvement by a broader range of states and even state to state dispute mechanisms. So it's, it's a certainly an exciting time to be watching the Court.

Tyler McBrien: Yeah. And it's interesting you bring up the, the nuclear weapons advisory opinion, because personally from speaking to just a handful of some of the activists we've been mentioning who themselves, many of whom are themselves law students or, or lawyers know this history and I think they were directly influenced by the grassroots civil society mobilization efforts to influence the judges or, you know, encourage them to, to, to weigh the nuclear weapons decision certain ways.

But back to the case at hand, I would love to, yeah, dig into some of the, the legal questions that are presented and, and then again, some of these, these main arguments that you've, that have really stuck with you as you've followed these proceedings closely.

Melissa Stewart: So why don't we start with just what is the question that the court is asked to address? So the substance of the question, it started with a large chapeau paragraph, referencing lots of areas, bodies of international law, including the climate change framework, as well as international human rights instruments and law of the sea, among other areas of law.

But the substance of the question is, and this is quoting the first part is: 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?

And then the second part of the question focused on what are the legal consequences for states when they have caused significant harm to the climate system and other parts of the environment? And there are other parts of that question that focus on the impact for particularly vulnerable countries that are vulnerable to climate change and then present and future generations that are particularly impacted.

So one of the biggest questions the court is going to have to decide is what is the applicable law here. So there were sort of two camps of states arguing for different approaches to how to answer this question. So we had, as I mentioned, this chapeau paragraph of the request that really referred to, you know, a broad range of international law, the Charter of the United Nations, the International Covenant on Civil and Political Rights, the UN Convention on the Law of the Sea.

So there were a group of states that were arguing, let's look at this chapeau paragraph. Let's look at the request. It refers to this broad range of international law, general international law. The whole corpus of international law is applicable to climate change. You don't, you know, lose the obligations under human rights law just in these specific circumstances. General international environmental law still applies.

And I think that when you look at the statements that were written by states and submitted by states, you see that a majority of states really took this approach that, that is the general international law that applies to this question of climate change. And there's some excellent work done by, I believe, Thomas Bury that looks at the statements from a more like mathematical way, like categorizing how every state made their determinations, and I'm sure you can link to in these show notes.

But I think the other camp of states that were looking at this were really focused on whether or not the Paris Agreement, or the climate framework in general, is the primary source of law, or even something called lex specialis, which is basically a specialized area of law that supersedes other areas of law.

And you can think of this as, you know, some predictable camps. that fall into this group of saying it's only the Paris Agreement that applies because there's not a lot of hard obligations under that agreement. So you have the United States and others that are trying to argue that the Paris Agreement is the primary source or even lex specialis.

But it'll be interesting to see how the court decides this issue. As I mentioned to you earlier, we already have this decision from the International Tribunal on the Law of the Sea. And when they approached this issue, they determined that the Paris Agreement and the United Nations Framework Convention on Climate Change and the UNF triple C was not lex specialis, so that you cannot ignore the rest of international law, that in terms of the UN Convention on the Law of the Sea or UNCLOS, states have independent obligations under UNCLOS related to climate change.

So, I think that is one of the primary questions that we're going to look to the court to answer. And I think that, I feel like it's likely they're going to decide something that is in line with ITLOS already decided. If it doesn't, that will create a lot of, I think, potential for fragmentation in the law, but it seems unlikely that they're going to go in a different way on that particularly big question.

In terms of smaller questions or more specialized questions, there were lots of submissions on the notion of the obligation to prevent significant transboundary harm to the environment and the corresponding obligation of due diligence to mitigate the risk of harm. So again, we have these two camps that are just trying to argue, does this apply to the situation of anthropogenic greenhouse gas emissions and climate change? Or is this fundamentally different from the way that we have traditionally thought about the risk of transboundary harm?

So some of our traditional cases about transboundary harm, you know, we can think of the Trail Smelter arbitration  where you have like a concentrated source of pollution that emits pollution and crosses an identifiable boundary and impacts an identifiable state. When we have the situation of climate change, it's a lot more diffuse. You have every state contributing in some way there are questions about causation, you can't necessarily trace back the activities of one particular state to the harm impacting another state.

So, some of the higher emitter states are of course arguing that this principle is not applicable in the context of climate change because it is not the same kind of harm. You saw the rest of the world sort of arguing that that, that doesn't really make any sense. If you think about how the law has evolved, this is a principle that has been a principle of customary national law for decades. This corresponding obligation of due diligence to mitigate the risk of harm that is well established in international law and in international environmental law.

And one of the ways that I thought was particularly powerful in terms of framing this issue was an intervention by Professor Jorge Viñuales. He was representing, I believe, Vanuatu in the proceedings. And he said, and I'm quoting here, if an isolated incident of transboundary pollution is unlawful, it is unthinkable that the ultimate form of pollution is not. It would be like accepting the tragic irony famously noted by Raphael Lemkin that murder is unlawful but genocide is not.

So I think he really, really emphasized there the significance of the harm that we're talking about. If we're thinking about harm, transboundary harm, in terms of, okay, pollution that impacts the state, that is certainly an easily identifiable, quantifiable harm.

But what we're talking about in terms of harms to states is really impacting their very existence, right? So we have a handful of states that are facing not just catastrophic harm from climate change, but they're facing the loss of the entire territory of their, of their state. And so I think framing it in that way where you're looking at potential, maybe not state extinction legally, and there's lots of debates about that, but factually under the law, if a state is going to lose its entire territory, you can't really exceed harm in that way.

And then one last note on about transboundary harm. I think we had already mentioned the Nuclear Weapons Advisory Opinion, and I certainly think that that opinion loomed large in several different respects. And there is an obligation under that advisory opinion that states are to ensure activities within their jurisdiction and control respect the environment of other states. And the way that they framed it was other states or of areas beyond national control. So I think states were using that language to say, it's not just this direct cross border impact, but any area beyond national jurisdiction.

Tyler McBrien: I think listeners who are familiar with common challenges to the idea that, the idea that law is sort of ill-suited to address the challenge of climate change are starting to pick up in your last answer, ways that states in their submissions are addressing these common, these perennial arguments we've heard.

So for example, that, you know, we can't really trace that these emissions that were created in the United States to, you know, to rising sea level in, in a Pacific Island, for example, or temporal challenge of harm to future generations. It's, it's difficult to seek remedy for a crime, quote unquote, that hasn't been committed yet, or I can't really seek remedy for a bicycle that is being stolen tomorrow, for example.

How else did you see states in their submissions or organizations in their submissions address these just classic law-climate mismatch arguments that people might be familiar with?

Melissa Stewart: Certainly. Again, we had this sort of like falling within roughly two camps where you had higher emitter states saying that, you know, it was not the intent of the Paris Agreement to, to allocate any sort of liability to states, right?

Like that was sort of one of the compromises that came with coming together with this agreement was that they wanted to make sure that even if you're creating a loss and damage fund, that does not mean that any state is admitting to liability for climate change related harms. And they also wanted to discuss the fact that it is difficult, you know; attribution science is challenging and it is challenging to demonstrate causation from any one particular state.

But I think the argument that other states had in response to this was just because it's hard doesn't mean there's not an obligation, right? Like these are distinct questions. You have to first start with what are the obligations of states to prevent this harm? What are the consequences if they fail to prevent the harm? And then at a later date in actual, you know, more detailed, maybe a state-to-state disputes, we can get to this question of which individual state might be responsible.

I think that states are, that have been large historic emitters want to try to avoid situations where they are solely held responsible for the harm that is happening around the world, because this is a, you know, collective action problem that there has been harm that many, many states have contributed to over decades, if not centuries. So I think that the idea is that they want to come to a place where they want to avoid liability altogether.

But as other people have pointed out, there are conceptions of joint and several liability in the law that exists outside of the context of climate change that are easily applicable in other, in other situations. So I think that there are answers to these questions. It's certainly not to say that it's not challenging or difficult or doesn't involve complex questions of science that definitely go beyond the scope of most lawyers' understanding and capabilities. But I do think that there were, you know, really strong answers to these questions.

Tyler McBrien: We hinted at them earlier, but as you mentioned, the ICJ's advisory opinion is not the only international tribunal, international court weighing similar questions. So can you place the, the ICJ advisory opinion in the landscape of the other two that you mentioned and even others that may be on the way? I think I was reading that the African Court on Human Peoples’ Rights may also soon take up these questions.

How do you see them fitting together? How do you see them in tension and potential tension? One, one thing you mentioned earlier is, is whether the, the ICJ’s judges will actually come down similar to the ITLOS determination that all of international law applies, not just a certain subset. So can you kind of paint the picture of, of, of all of these in context?

Melissa Stewart: Yeah. So like I said, we have, we have three current advisory opinions. There has been some rumbling of a potential fourth from the African Court on Human and Peoples’ Rights, but we don't have that before us yet. In terms of the scope of the question, they're, they're very different. The ICJ sort of sits at the center, right? So there might be more overlap as between the ICJ and the decision reached by ITLOS under the UN Convention of the Law of the Sea, because they, both questions refer to that legal framework.

And then also some potential overlap between what the ICJ decides and the Inter-American Court of Human Rights. I will put a caveat on this, that the Inter-American Court of Human Rights is just looking at their, their particular legal framework applicable to human rights under the inter-American system. And their decisions tend to be a lot more progressive than, say, the International Court of Justice.

So it's likely that they will have a much more progressive decision, but there's less risk there of having sort of conflicts between, between tribunals, because you can say that states are required to do more under the Inter-American Convention on Human Rights than just potentially the general corpus of human rights law.

However, there is this question, one of the substantive questions that states were addressing in their written and oral submissions was whether or not human rights law applies and to what extent. So there is this question about whether or not there is a right to a clean, healthy, and sustainable environment. Is that now a part of customary international law? And if so, what is the scope of this right?

Some states, on the one hand, the United States says international human rights law does not obligate states to mitigate anthropogenic greenhouse gas emissions. Other states are on the complete opposite end of the spectrum, thinking that there are concrete obligations under human rights law to protect and preserve the environment.

So I think that even if the Inter-American Court of Human Rights is more progressive and the ICJ is more conservative on this question, there's less of a risk of fragmentation there. And this was certainly something that I wrote about back in 2023 when we were unsure of the timeline of these decisions.

I think there is more of a potential risk of having decisions that signal different things to different states as between the decision from the International Tribunal on the Law of the Sea and the International Court of Justice. So one of the things that ITLOS decided was it was talking about substantively, what are the obligations of due diligence when it comes to climate change? So what are the obligations to prevent harm, prevent harm to the marine environment?

And one of the standards that ITLOS came out with was saying that this, this standard is one of stringent due diligence, and we don't necessarily know yet what that means. What does it mean to have stringent due diligence? But I think that if the ICJ announces a standard that seems more flexible than ITLOS, that might lead it to the situation where states are just going to try to meet whatever bar is lowest, if they if they want to, to be able to say, we are complying with our obligations under international law. The obligation of due diligence is not stringent in this circumstances; see the decision of the International Court of Justice.

Other states that are wanting to make sure that we're doing as much as we can, might refer to the International Tribunal of the Law of the Sea. I don't want to prejudge and say that is what is going to happen, but that's one of the potential areas that I see, you know, because the standard of due diligence applies beyond the context of the Law of the Sea, I think it's a potential area where we would want to see a lot of cohesiveness as between the two decisions.

Tyler McBrien: So you began to answer, I think, aspects of this question in your previous answers, but I'm curious, back to the ICJ advisory opinion, what's next? So when we might expect an advisory opinion, and then you're probably resistant to offer any predictions, but might we likely expect from the opinion that's ultimately issued. If we're thinking of a spectrum on one end of a very expansive and progressive opinion and on the other end a more narrow one, where you think we may fall.

Melissa Stewart: So I want to start first by thinking about whether or not we can make any predictions. I want to contrast for your listeners who are likely more used to watching the oral argument proceedings before the Supreme Court to think about how different the oral proceedings are before the International Court of Justice.

First of all, they are a lot more formal. As formal as the arguments are before the Supreme Court, they are a lot more formal and staid. People are reading written statements that they have prepared. The judges have copies of the written statements before them, and there's not really a dialogue between the judges of the International Court of Justice and the advocates appearing before them.

In contrast to the Supreme Court, you have nine judges who are, depending on the day, issuing a lot of questions where you can sort of have a sense of where they are leaning in one way or another, for the 15 judges on the ICJ, we don't really have that opportunity. However, there were a few questions that were posed to all of the parties at the end of the proceedings that gave you some sense of maybe some of the lingering questions in the judges’ minds in terms of how to answer some of these hard questions that they have to confront.

So, for example, Judge Cleveland asked, what are the obligations of states that produce fossil fuels in terms of protection of the climate system. Judge Tladi asked are there obligations under Article 4 of the Paris Agreement? Are these just procedural obligations as some have argued? And how are we to interpret these obligations under the Vienna Convention on the Law of Treaties?

Judge Aurescu asked a question about if we have a right to a clean and healthy, sustainable environment, what is the content of that right? And then just Judge Charlesworth asked about how are we to interpret the declarations that states made at the time that they became parties to the UNFCCC and the Paris Agreement that they said to the effect that no provision in these agreements may be interpreted as derogating from principles of general international law or any claims or rights concerning compensation or liability due to the adverse effects of climate change. So we really get into that question of liability and potential reparations.

So I don't think that that necessarily gives us clues in terms of how these judges are going to weigh their ultimate decision or if they're going to write separate opinions on these issues, but it might just indicate what are some of the harder lingering questions that they're trying to determine for themselves.

In terms of what we can expect if it's a narrower decision versus a more expansive decision. A narrower decision, I think what would be most disappointing for the advocates is if they say that the relevant legal framework here is the Paris Agreement and the UNF triple C. So it, it would be aligned with the states that said, if we meet our obligations under the Paris Agreement, then we are by doing those things, we are also meeting our obligations under human rights law or under general international law.

Our obligations of due diligence are nothing more, nothing less than submitting our nationally determined contributions every five years. We can have the intent of fulfilling them, but there's no real obligation as to whether or not we have to fulfill them or not. I think that that would be the most disappointing outcome for the advocates.

In terms of an expansive decision, I think it would be one that really focuses on what is the role of this 1.5 degree goal in the Paris Agreement and are there specific obligations that states have in order to keep this goal still attainable. As many listeners may know, we've crossed that 1.5 degree threshold in the past year. It remains to be seen if we stay above that threshold, but our ability to limit global warming to 1.5 degrees is slipping further and further out of reach.

So I think if the court really focuses on giving more content and scope to some of these obligations–such as the obligation of due diligence and principles–in terms of fleshing them out and not just making them procedural. Like what, what does it mean to have nationally determined contributions that reflect a state's highest ambition? Do they have to do more than they're currently doing under the Paris Agreement? I think that would be more expansive and ambitious than just one that says we only need to look at the Paris Agreement.

It will also be interesting to see how they incorporate other bodies of law. Are they going to refer to the ITLOS decision? I imagine they will. How is human rights going to really play a part in this decision? And what is the role of science? So a lot of the arguments referred to this idea that we should be referring to the best available science in terms of how we are reaching this goal. Is it just enough for each state to determine what they, their nationally determined contributions are, or do they have to refer to the best available science, which says that we need, you know, rapid, deep and sustained reductions imminently in order to keep some of these goals in mind?

And one other thing that I think will be really important to look to is to see what the court says on the law of state responsibility. So this is really aligned with question B, what are the legal consequences for states who have caused significant harm to the environment?

And a number of states talked about the law of state responsibility and said that it is applicable in the context of climate change. Vanuatu had a really powerful intervention on this point by Margaretha Wewerinke-Singh, where she really laid out what are the consequences. The traditional elements of state responsibilities that states have an obligation to cease the conduct that violates their obligations, have to ensure non repetition, and there needs to be reparations, either restoration, compensation, or satisfaction.

So I think that obviously there were a number of states pushing back against the idea that the law of state responsibility applies in this context because they've been very clear that they don't think that they will have liability under the Paris Agreement or under the climate framework. So I think that if the court says that the law of state responsibility applies here, that too would be another win for people who are hoping to see a really progressive decision from the International Court of Justice.

Tyler McBrien: And my very last prediction question, I promise. Do you have a sense of, or an inkling of when the world might get the advisory opinion?

Melissa Stewart: I don't have an inkling. There might be other people listening who have a better sense than I. Like I mentioned, those questions were posed at the end of the hearings on the 13th. States had to write their answers by December 20th. We're not going to get an opportunity to read what those responses were.

The court has an unusually full plate at the moment, with a lot of different contentious cases and other advisory proceedings before them. But they have been turning around advisory opinions quickly. So certainly I think before the end of the year, whether it's before the summer, I don't, I don't want to project or say.

Tyler McBrien: And I want to end here somewhat where we began just to say the question of how we got here. I believe you're working on, on a chapter. It's in development on, on an idea that it seems you're developing called jurisdictional ingenuity.

So I want to throw that open to you. What is this, this idea of jurisdictional ingenuity? And why do you think some states have pursued these three advisory opinions rather than these other frameworks that are already in place, such as the Paris Agreement?

Melissa Stewart: Yeah, so one of the things that I'm talking about in this chapter that is forthcoming in a book on the climate change advisory opinions that is edited by Armando Rocha and Maria Antonia Tigre is that the reason why I think states are coming to this point of pursuing advisory opinions is because they don't really have other pathways to state to state dispute resolution that are easily accessible.

So there are dispute resolution mechanisms in the Paris Agreement, but there's a very low level of states who have consented to making themselves submit to these dispute resolution provisions of the Paris Agreement. So states who want to say, you are not holding up your end of the bargain under this agreement don't really have that available to them as a pathway.

There is the compulsory jurisdiction of the International Court of Justice, but there's a limited number of high emitting states who have consented to the compulsory jurisdiction of the ICJ, which basically means that they consent to any dispute related to a legal question or obligation under international law.

So the United States did originally consent to this jurisdiction, but they pulled out after the Contras case against Nicaragua. I think Australia is one of the few high emitting states that has consented to the contentious jurisdiction of the ICJ.

So there were limited avenues here in terms of where states could pursue state to state dispute resolution. One of the potential avenues was through the UN Convention on the Law of the Sea, but there was this open question before the advisory opinion as to whether or not anthropogenic greenhouse gas emissions constituted pollution within the meaning of UNCLOS.

So that question has really been answered for states. So you can say, yes within the meaning of UNCLOS, anthropogenic greenhouse gas emissions constitutes pollution of the marine environment and all the obligations that states have under that convention apply in the context of climate change. So for a small island state that is thinking of bringing a contentious case against another state, that barrier to entry of having to first demonstrate that anthropogenic greenhouse gas emission supplies in this context has been lowered.

So we already have that answer. So if you have a state that is a state party to UNCLOS, they can bring a contentious dispute against another state party. And that I think is one of the main potential, most fruitful areas of future state to state dispute resolution because of the large number of states who are state parties to the UN Convention on the Law of the Sea, including high emitting states.

And the fact that every single state that is a state party has to consent to the compulsory dispute resolution mechanism under UNCLOS. So they have a range of options, they don't necessarily have to be before the International Tribunal on the Law of the Sea, but they have to consent to some sort of compulsory dispute mechanism procedure.

I doubt that there will be cases brought before the United States because there's just not a jurisdictional pathway. But I think when you're thinking about the reasons why states were bringing this, it really was sort of a frustration with lack of progress through the conference of parties under the UNF triple C process, lack of progress through where people are trying to make more progress under the Paris Agreement, and then lack of jurisdictional pathways to really have some accountability when states are facing such enormous loss.

And for those that wish to listen to the oral proceedings, or have listened to them, one of the things that was really notable was, were the ways in which states were really framing the harm that they had suffered. So states brought slides and videos to demonstrate the harm that has been caused by cyclones, by flooding, by sea level rise, to show just the devastating losses that have cost hundreds of millions of dollars in damage just by one cyclone, a historic cyclone.

And it's not just, you know, property loss and damage. One state talked about losing 94 percent of their historic artifacts in a museum that was washed away. You know, some of these really irreplaceable aspects of loss and damage that cannot be quantified in terms of money. So I think that the states who are pursuing this were looking at this, I don't want to say at last resort, but the window of opportunity to confront climate change is rapidly closing.

And I think that they were looking at this as a way, their best available option in front of them, in terms of being able to see progress on climate change.

Tyler McBrien: No, I'm really glad you ended there with a reminder of the loss suffered and this window of opportunity closing cause it's, it's just a great reminder of the stakes here which are immense and existential for, for many of the states who are participating.

Before we close, I'm just curious if there's anything else you wish I had asked, anything else you wanted to add in here,

Melissa Stewart: Sure. So I think there's a couple things that I'd love to talk about that I think your listeners might be interested in. So, one is the ways in which states engaged with the United States in the oral proceedings and the written proceedings. It was really interesting to hear, even before the United States said anything, some of the comments from other states that highlighted the awareness that our government had not, you know, in 1990 with the first IPCC report, but decades earlier.

So states such as Vanuatu and Barbados, highlighted statements such as the United States National Academy of Sciences confirmed to President Kennedy in 1962 that the extensive use of fossil fuels would disrupt the weather and ecological balances. They focused on a statement that President Johnson made in 1965 to Congress that quote, this generation has altered the composition of the atmosphere on a global scale through radioactive materials and a steady increase in carbon dioxide from the burning of fossil fuels. And they also focus on a statement by the CIA in 1974, that quote, the Western world's leading climatologists have confirmed recent reports of a detrimental global climactic change.

Certainly they weren't focusing solely on the United States. They were also focused on countries such as Germany and France and others that had this early awareness of what are greenhouse gas emissions, how they could impact the climate system. And of course there was lots more scientific uncertainty in the 1960s, 70s and 80s.

But I think when you have states that are trying to say that even if we have these obligations, when does our, when did our obligations start? We can’t go earlier than 1990. A lot of states were trying to preemptively push back on this idea.

Tyler McBrien: Seems like a pretty savvy move to say, you know, don't take our word for it, take your own.

Melissa Stewart: Exactly. Exactly. And I think, you know, when we're thinking about this as listeners in the United States, we have, you know, this, regardless of administration, has been consistent that we should not have any liability in terms of our contributions to climate change. But I think we really have to think about this, not just from a legal perspective, but from a moral perspective.

And, you know, states were sort of highlighting the absurdity of any reticence that we might have to confronting the problem. One submission–and I apologize, I can't remember which state said this–said that if a state can send a rocket ship to the moon and create nuclear weapons, certainly they can have, they have the technical capability to focus on energy transition and confront climate change.

So I think there were just ways in which that they were pushing back on this idea that, you know, pushing back against the United States’ legal arguments. And pushing back against this notion that we didn't have awareness and our awareness was recent and we shouldn't have, we shouldn't have liability under, under these legal frameworks.

So I think that we had an outsized role in these proceedings well beyond the 30 minutes that we were, we were allocated as a state. And I think that some of the things that the United States said in our oral submissions were a bit disappointing, right? So saying that we don't have obligations under human rights to mitigate climate change is, is disappointing. Trying to effectively write out the principle of common but differentiated responsibilities and respective capabilities, saying that it's not an overarching principle of the Paris Agreement or customary international law, nor is it a principle of general international law, is, again, it's, it's disappointing.

And this is, this is from an administration that is supposed to be a bit more progressive, but it's not necessarily surprising. I think when the first, when the question of the advisory opinion first came to the floor, Secretary Kerry really pushed back on the, the notion that this is the right move, you know, saying that bilateral negotiations and the conference of the parties is a place that we should be looking at this.

But I think that it is at least somewhat to our credit that we didn't, didn't stop the effort from moving forward in the same way that we did when Palau and the Marshall Islands were pursuing this in, in 2011. But I do think, you know, we have to think about what our role is in contributing to this harm. And the illustrations that states gave were stark.

So we have, you know, nuclear weapons that were dropped on the Marshall Islands and we have ineffectively cleaned up the impact of that. And there is a concrete dome that is currently sitting and cracking and susceptible to sea level rise. And it's not just how is sea level rise going to impact territories, what is going to happen when the nuclear waste that we have, you know, deposited and on other territories starts leaching out because of not just the harm that we've caused in that way, but the harm that we've caused to the environment.

So I think we have a lot of really moral obligations in addition to our legal obligations for the harm that is being visited on other countries around the world.

Tyler McBrien: Yeah, I mean, that was a good reminder, not only of the stakes, but also of the nature of the crisis, which is largely, as you put very well, not so much technological as it is political in terms of political will and collective action problems. And I would encourage listeners to watch the oral proceedings and read the written statements as well, because several states illustrate that extremely well.

Melissa Stewart: Yeah, and if there's any other thing I wanted to sort of focus on, I would say that, you know, as we mentioned earlier, the harm that states are facing is really existential harm.

So we have states that are facing the loss of their entire territory. And this certainly came to the fore in the very powerful statements by numerous states and the ways that states frame this in terms of legal terms were how does this relate to the right to self-determination and the preservation of territory.

And my colleague at the University of Hawaii and the proud Richardson graduate, Julian Aguon, gave a really, really powerful intervention on behalf of Vanuatu and the Melanesian Spearhead group on what is the meaning of self determination in terms of climate change. Tuvalu had a similarly powerful intervention there.

And thinking about when we are talking about actually the survival of states. What does that mean? We don't really have a fleshed out law on state survival, but the ICJ referenced it in the nuclear weapons advisory opinion. And it's certainly important here in terms of thinking about not just what harms our states are suffering, but how can they preserve their actual existence into the future.

Tyler McBrien: And if listeners are interested in those questions of what sovereignty and territorial integrity means what a state is with no territory, I'd also encourage people to, to read your work, Melissa cause I know you've, you've done quite a bit on that and, and we even spoke a bit about it in the last podcast.

But I want to thank you again for, for coming back on hopefully in a few months when we get an advisory opinion, we'd love to welcome you back. Maybe you can take a victory lap about some of these cautious predictions you put forth. But in the meantime, I just want to thank you for, for helping us pick through maybe one of the most momentous cases of our lifetime.

Melissa Stewart: Well, it was certainly my pleasure and I’d be happy to come back and talk about the eventual decision that we get from the court.

Tyler McBrien: The Lawfare Podcast is produced in cooperation with the Brookings Institution You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter through our website, lawfaremedia.org/support. You also get access to special events and other content available only to our supporters.

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