Pay up! Rich countries sweat at UN push to make them liable for climate change

Cyclone-stricken Vanuatu will ask the world’s highest court to judge whether countries that pollute the climate are breaking the law — a request that is freaking out the U.S. and could unleash a cascade of lawsuits across the globe.

The Pacific island nation initiated a U.N. resolution asking the International Court of Justice (ICJ) to give its view on the legal consequences for countries that have done the most to cause global warming. The motion is co-sponsored by 119 countries, organizers said, meaning it is all but guaranteed to pass the U.N. General Assembly on Wednesday.

“For 200 years, something that appears to be legal has been destroying the planet. We need to say loud and clear that it’s illegal,” said Jorge Vinuales, a professor of law and environmental policy at the University of Cambridge who helped a group of law students from Pacific island countries draft the resolution.

Vanuatu’s Climate Minister Ralph Regenvanu told reporters that the resolution’s passage on Wednesday would mark “a moment of great hope” for his country, which is still reeling from being hit by two back-to-back cyclones earlier this year.

But it has some big polluters worried.

“We have very real concerns about the language,” U.S. climate envoy John Kerry told reporters earlier this month. He questioned whether it “produces something that’s going to be constructive and fair.”

The U.S., which is responsible for more of the planet-heating greenhouse gases in the atmosphere than any other country, has long rejected claims it bears liability for the destructive consequences and ensured developing countries waived claims to compensation in the 2015 Paris Agreement.

However, last year’s COP27 climate summit saw a delicate truce on climate reparations. Kerry said the U.S. “really stepped out and up” by agreeing to create a "loss and damage" fund to aid climate victims around the world at the conference in Egypt. He accused Vanuatu of preempting that process and “jumping ahead and going to the court.”

European countries have also been traditionally wary of compensation claims. But every EU member except Poland has joined the draft resolution as a co-sponsor; Vanuatu wrote the resolution together with 17 other countries — including Germany, New Zealand, Portugal and Romania — to garner the broadest possible support.

Privately climate diplomats from wealthy countries told POLITICO they were concerned that the case could fracture the climate reparations consensus brokered in Egypt.

Regenvanu confirmed that those fears may be justified. “The ICJ advisory opinion will have implications for loss and damage, how the loss and damage fund rolls out, how it’s interpreted and so on,” he said.

It’s a big deal (possibly)

The court’s decision could ripple through the law, diplomacy and regulation.

The draft U.N. resolution asks the ICJ to clarify what existing international law says about the obligations countries have to each other, but also what they owe “present and future generations.”

If it passes, the court would hold hearings in The Hague at which countries would make legal arguments. Any final opinion will be non-binding, but such advisories from the U.N. body, which is often referred to as the World Court, carry weight in courts around the world.

Vinuales said that while advisory opinions are not binding, "the law they clarify is binding” because the court will interpret the Paris Agreement and other treaties that are internationally-agreed law.

He added there “is always a risk” that the court would dodge the question or offer a narrow interpretation of the law. But if the ICJ gives a clear signal that polluting countries bear legal responsibility for their emissions, past and present, it could supercharge domestic climate lawsuits.

Citizens in the Netherlands and Germany, for example, have already successfully changed government climate goals by arguing before national courts that policies impinged on their human rights.

On Wednesday, the European Court of Human Rights will hear two similar climate cases.

“We are seeing that courts are relying on international law to guide them through some of these questions,” said Lea Main-Klingst, a lawyer in public international law at the NGO ClientEarth. “There is a potential for really, really important legal implications if the court is able to just clarify, once and for all, that climate change adversely impacts human rights and entails certain obligations and consequences on states.”

Beyond the courts, the ICJ’s opinion could lend legal heft to developing countries’ demands in future climate talks.

The 2015 Paris Agreement is riddled with deliberately ambiguous phrases that have been interpreted by governments in the way that suits them.

Regenvanu said that countries had “agreed that they should — and I quote — ‘respect, promote and consider their respective obligations on human rights.’ Yet these obligations have not yet been comprehensively defined. And this is something we believe the ICJ will do.”

Vinuales said ripple effects could go wider. For example, the court could offer a view on existing EU regulations dictating that financial flows are aligned with the Paris Agreement.

“The way in which this could be seeping into the fabric of climate regulation is much deeper than what people expect,” the Cambridge don said.