Caribbean lawyers celebrate ICJ climate change opinion: We’ve been heard

CARIBBEAN lawyers who represented the region said the recent, landmark advisory opinion by the International Court of Justice (ICJ) that countries can be held legally accountable for greenhouse gas emissions is a major win. They said they felt heard.

The unanimous opinion was delivered on July 23. And although non-binding (having no legal power), it paves the way forward.

The idea of going to the ICJ was first proposed by a group of students from Vanuatu, a South Pacific island, in 2021. A total of 96 countries participated in the oral hearings last December and 91 gave written statements.

Caribbean countries included Antigua and Barbuda, The Bahamas, Barbados, Belize, Dominica, Grenada, Jamaica, the Dominican Republic, St Vincent and the Grenadines and St Lucia.

Last week, the court reminded those present that existing climate change treaties and international law have set “binding obligations” for countries to ensure climate systems and the environment are protected from anthropogenic greenhouse gas emissions.

Breaching this in any way, it added, is an internationally wrongful act “entailing the responsibility of the state.”

It said legal consequences for breaches may include full reparation to affected countries via restitution, compensation and satisfaction.

Other consequences include the cessation of the wrongful actions or omissions if continued, and giving assurances that the actions will not be repeated.

The full opinion can be read on the ICJ’s website.

Decision aligned with what we pleaded for

TT lawyer Justin Sobion represented Grenada and St Vincent and the Grenadines. He recalled being nervous sitting in the court waiting for the opinion to be delivered.

But when the judge started reading, he said every single point made was just “ticking all our boxes.

“I was sitting down next to (my colleague) and she kept nudging me in excitement each time he made a new point,” he said as he laughed heartily. “They started speaking about IPCC (Intergovernmental Panel on Climate Change), best available science, human rights treaties…even the aspect of protecting future generations and considering their rights.”

He recalled certain delegations like Saudi Arabia and the US questioning how there could be human rights for people who do not yet exist.

“For me, I think it was progressive. It was more than we expected. So now we see the ICJ being revolutionary because it is known to be conservative.”

He said he sees it as a win for the region and countries can now use this as a “bargaining tool.

“It would lack international morality if states now come out and say, ‘We don't really believe in this ICJ thing.’…Law and morality can be two different things, but we hope in this case it can be intertwined and combined to produce something useful for present and future generations.”

He highlighted a section of the opinion that said intergenerational equity means present generations are trustees of humanity tasked with handing over the Earth/environment to future generations as close as possible to the state in which it was inherited.

“This was a position that St Vincent and the Grenadines and Grenada specifically argued for.”

He said the focus is now on pushing for more climate justice for the region, and so its leaders must now be more proactive. He said the Caribbean representatives hope to have an informal meeting soon as they plan to attend COP30 in Brazil.

Acting Justice of the Supreme Court in The Bahamas Cheryl Bazard, KC, represented the Organisation of African, Caribbean and Pacific States. At the time, she was the regional co-ordinator of Caribbean ambassadors in Belgium, so she made the two-hour drive to The Hague to witness history.

Speaking to Newsday on July 30, she recalled the “intense but rewarding” preparations that went into the process. She said representing so many people was an honourable and weighty responsibility.

“I was a representative for about 1.3 billion people around the world. I think it takes a lot to put that moment into words.”

Caribbean suffered a lot

She said she was "hoping for the best" regarding the advisory opinion.

“We had the victory before the International Tribunal for Law of the Sea, as it related to the question of pollution for the ocean. So that was something that gave us some hope. But you never knew what the outcome would be. But our fingers were crossed.”

It was difficult to contain her emotions when it was finally read.

“And they came back and said, ‘Unanimous,’ and it was euphoric. I think it really showed what was the weight of the questions before the court, and that this was such a topic or an issue that didn't just affect us as developed countries or a small island developing state, but it affected and impacted people around the world.”

In total honesty, she added, “We couldn't wait for (the judges) to leave so that we could embrace one another and really revel in what we had just heard.”

Had they not been in the courtroom and heard the opinion, she said their behaviour probably could have been likened to fans at a major sporting event.

“We in the Caribbean have lived through devastation, through fear during the hurricane season, witnessed destruction and loss for many years. Now states that are responsible can be held (accountable) legally…”

Attorney Kate Wilson, legal officer in the Department of Sustainable Development in St Lucia, said for her, the entire experience was “a wonderfully euphoric and life-changing experience. She said it showed true Caricom unity.

“I've had lots of lovely experiences in my life and in my career, but I can tell you, this was one of the icing on the cake.”

She praised all Caribbean representatives for their dedication, hard work and unity during the months leading up to the oral hearings and even afterwards.

As for her colleagues who could not make it last week, “Their presence reverberated in the corridors of the Great Palace of the East. I could feel their laughter, I could sense their excitement…”

She was a bit nervous, too. But just like Sobion, once the judge began reading, all fear was alleviated. In fact, she was the colleague who kept nudging him.

“Almost everything that we asked for was dealt with. We wanted the courts to take the entire purpose of international law into consideration, and they did…We spoke about the stringent due diligence standard of prevention, which they did, too, and agreed…They spoke about the duty of co-operation… And I was very, very happy to hear the court reaffirm the fact that compliance must be assessed in terms of common, but differentiated responsibilities and respective capabilities, “

She said while the decision was unanimous, which was wonderful, she felt further “heard” as some judges developed their arguments a bit more.

“This must form part of our next steps, and we need now to go back to the court and say, ‘Yes, you have already provided us a good platform, you have clarified a number of things, but we need you to go a little further, and we have specific things that we would need you to clarify and to develop.’”

Questions posed to the ICJ

1. 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?

2.What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:

(i) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?

(ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?