Who Pays? The Question the ICJ Didn’t (Adequately) Answer

The recent Advisory Opinion delivered by the International Court of Justice (the Court) on the obligations of statBlog es in relation to climate change (AO) has been hailed by the wider international community (here, here and here) as setting the record straight on many obligations of developed countries under international law. The findings of the AO have been mostly aligned with the arguments provided by the majority of developing states – use of term as indicated under the United Nations Framework Convention on Climate Change (UNFCCC) – brought forward to the Court.

Accordingly, the AO was considered to be favorable, in general, to the demands of the Global South. This initial positive reception of the AO has somewhat eroded as the lack of emphasis regarding climate justice has become more and more apparent. This was rightly indicated by Judge Xue in her separate opinion, stating that the AO was an opportunity for the Court to “give a full account of the imperatives underlying principles set forth in Article 3 of the [UNFCCC] in the global response to climate change, in particular the principle of sustainable development and the principle of common but differentiated responsibilities and respective capabilities [CBDR]” – the common denominators of the UNFCCC, the Kyoto Protocol and the Paris Agreement (para. 178). Unfortunately, the Court has overlooked a necessary and justified elaboration on the question of climate justice and, as a consequence, many questions, including climate finance, remain unaddressed.

The Relationship Between the UNFCCC and the Paris Agreement

The Court considered that the Paris Agreement is a “related legal instrument” to the UNFCCC to enhance its implementation (para. 119 and 191). As rightly described in the AO, “related legal instruments shall operate in accordance with the relevant provisions of the UNFCCC” (para. 191). This relationship between both agreements is further reaffirmed in COP decision 1./CP.21, which adopted the Paris Agreement under the UNFCCC. This means that the interpretation of the Paris Agreement should be made in light of the provisions of the UNFCCC, specifically that the provisions of the Paris Agreement come to provide “greater specification to” those of the UNFCCC (para. 195). Hence, the famous appellation “the UNFCCC and its Paris Agreement” (emphasis added) by most developing countries in climate negotiations (see ie here, p. 18).

A Schema of Finance Obligations Under Both the UNFCCC and the Paris Agreement

The Court indicated the existence of a duty to cooperate incumbent upon developed countries. This obligation consists of the provision of financial resources, technology transfers, and capacity building to developing countries for mitigation and adaptation (para. 217, 218, and 227).

Articles 4.3 and 4.4 UNFCCC impose an obligation on developed countries to provide financial resources for developing countries to, inter alia: (1) prepare emissions inventories and national reports, (2) implement measures to reduce emissions and adapt to climate change, and (3) meet the costs of mitigating and adapting to the adverse effects of climate change. Article 4.5 UNFCCC requires developed countries to take “all practicable steps to promote, facilitate and finance as appropriate the transfer of, or access to, environmentally sound technologies and know-how” to developing countries, while Article 4.3 emphasizes that developed countries “shall provide financial resources, including for the transfer of technology”.

In regards to the Paris Agreement, the Court rightly stipulated that “developed country Parties shall provide financial resources to assist developing country Parties with respect to both mitigation and adaptation”, citing Article 9 Paris Agreement as its basis. Furthermore, it described that “the use of the term “shall” to introduce the obligation indicates the legally binding character of that provision” (para. 264). In its entirety, Article 9 Paris Agreement can be seen as a logical continuation of the comparable, corresponding existing obligations under the UNFCCC (i.e. Article 4 UNFCCC in relation to providing finance for developing countries). This was reaffirmed in the AO, stating “the phrase “in continuation of their existing obligations under the Convention” [(in Article 9.1 Paris Agreement)] is to be interpreted as a restatement of the obligation of developed country parties to provide financial resources to developing country parties, as stipulated in Article 4, paragraph 3 of the Framework Convention” (para 264).

Why Did Climate Justice Erode the AO?

These deliberations in the Advisory Opinion should have served as an entry point for a necessary legal elaboration on the question of climate finance.

A Dogmatic Reading of Climate Finance Obligations by the Court

As shown above, some of the provisions of the UNFCCC and Paris Agreement were mentioned in relation to climate finance. However, it was not done in a manner that looks into the content of these articles, and draws on the conclusion the Court itself pronounced, and that is the relationship between both agreements – particularly when it comes to climate finance. In this regard, an important provision was just stated in brackets without any emphasis on its importance or its relationship to the principle of common but differentiated responsibilities: Article 4.7 UNFCCC.

Article 4.7 UNFCCC explicitly stipulates that “the extent to which developing country Parties will effectively implement their commitment under the Convention will depend on the effective implementation by developed country Parties of their commitments under the Convention related to financial resources and transfer of technology”. This provision should be construed in the context of Article 3 Paris Agreement, which recognizes the need to support developing countries in the effective implementation of this agreement, and into Article 4.5 UNFCCC, which emphasizes that enhanced support for developing countries will allow for higher ambition in their actions.

A cumulative reading of these provisions indicates that there is a conditionality embedded in Article 4.7 UNFCCC, and reinstated in Article 3 Paris Agreement, which asserts that developed countries must not only comply with their climate finance obligation in any regard. Instead, they have to do so in an effective manner, so that developing countries can in turn comply with their obligations under the Paris Agreement. There is a direct correlation between the effective implementation by developed countries of their climate finance obligations and the effective implementation by developing countries of their general climate obligations. This begs the question of whether a “non-effective” compliance by developed countries with their obligation to provide finance can be considered as compliance at all.

However, the Court did not speak of this conditionality, and has omitted to develop the relationship between the provision of finance by developed countries and the ability of developing countries to comply with their obligations under the UNFCCC and the Paris Agreement, as further elaborated below. In particular, the question of what constitutes adequate finance was left unaddressed. The Court ought to have emphasized that if developed countries do not provide adequate financing, they would in turn not be in compliance with their own obligation to provide effective financing. As such, any sort of compliance by developed countries that is not supported by the provision of adequate finance would fall short of being effective, and would, as a consequence, prevent developing countries from complying with their obligations under the Paris Agreement.

The Missed Opportunity: The Duties the ICJ Did Not Clarify

What was expected from the AO in relation to climate finance is for the Court to understand the gist of climate justice and what the principle of common but differentiated responsibilities entails. However, the Court contented with suggesting that states have to implement Article 9 Paris Agreement, “in a manner and at a level that allows for the achievement of the objectives listed in Article 2 [Paris Agreement]”, only emphasizing the temperature goal (para. 265).

The objectives listed under Article 2 include limiting temperature increase to 1.5°C above pre-industrial levels, increasing the ability to adapt to climate change in a manner that does not threaten food production, and providing finance to reduce greenhouse gas emissions. Just mentioning these objectives does not place any weight on the right to development, poverty eradication, or the need to provide adequate finance for developing countries to comply with their obligations. The AO especially does not entertain the need to eradicate poverty as a crucial consideration when it comes to climate adaptation and mitigation for developing countries, only mentioning it twice and in citations. This comes despite the fact that it is mentioned multiple times in the UNFCCC and Paris Agreement, including in the preamble.

Furthermore, the AO has not made use of different IPCC and UN reports on the amount of support needed by developing countries. These sources should have been used to further enhance the necessity of adequate climate finance, and additionally to concretize the (financial) duties of developed countries to a certain degree.

As rightly pointed out by Judge Xue in her separate opinion: “The reason why the UNFCCC places so much emphasis on the specific needs and special circumstances of developing countries, especially those that are particularly vulnerable to the adverse effects of climate change and those that would have to bear a disproportionate or abnormal burden under the Convention, is that without international co-operation from developed States, including finance and transfer of technology, those developing countries will not be able to deal with the dilemma between the need to adapt to the adverse effects of climate change and the need of poverty eradication and development” (para.71), and that “without international co-operation, including climate finance and the transfer of technology from developed countries, their [i.e. developing countries] basic right to sustainable development is in limbo” (para. 46).

Conclusion

The Court rightly described CBDR as “a core guiding principle for the implementation of the climate change treaties”, reflecting “the need to distribute equitably the burdens of the obligations in respect of climate change” and “acknowledg[ing], on the one hand, the historical responsibility of certain states and, on the other, that the measures which can be expected from all states with respect to addressing climate change are not the same” (para. 148). However, it has omitted to draw the link between these general conclusions and the climate obligations in concreto, especially regarding climate finance.

Advisory Opinions do not come in a vacuum – they reflect the need for a legal opinion on serious contemporary legal questions. As pointed out by Judge Yusuf in his separate opinion, the Court has adopted “a formalistic approach in formulating its Advisory Opinion”, and that what was asked from the Court was not “a dissertation on the obligations of States in relation to climate change”. Instead, the Court should have delivered “more concrete and tangible replies”.

The obligation to provide adequate finance should not only be considered as part of the duty to cooperate, but also as a standalone legal obligation specific to the climate treaties. Not only as a means to redress historical wrongdoing, but also as a necessary condition for developing countries to be in compliance with the UNFCCC and the Paris Agreement. The provision of adequate finance is a core part of climate justice, enshrined in the notion of historical responsibility, and a necessary condition for achieving the objectives of the Paris Agreement.

Disclaimer: The author was engaged in the case before the International Court of Justice discussed herein on behalf of the Arab Republic of Egypt. The views and opinions expressed in this article are exclusively those of the author and shall not be construed as reflecting, in any manner whatsoever, the official position or views of the Government of the Arab Republic of Egypt.