In World Court, Countries Debate Legal Obligation To Stop Oil Production

For the first two weeks in December, the International Court of Justice held oral hearings for its Advisory Opinion relating to the Obligations of States in respect of Climate Change. At the request of the United Nations General Assembly, the ICJ will determine the existing financial liability of countries for their contribution to climate change and what actions countries must take to prevent climate change. In response to questions posed by judges at the conclusion of the hearings, parties are in disagreement as to whether the Paris Agreement creates a legal obligation to reduce fossil fuel production and the subsidizing of costs.

The ICJ was established in 1945 through the UN Charter to handle legal disputes between nations. Known as the World Court, it is an outlet for countries to settle civil disputes through a neutral court. The ICJ is composed of 15 judges elected by the UNGA and UN Council to serve a term of nine years. A country may only have one judge serving on the ICJ at a time.

On March 29, 2023, at the request of Vanuatu, the UNGA asked the ICJ to issue an advisory opinion on the legal obligations of countries in preventing climate change. The opinion, while non-binding, will give an indicator of how the Court may interpret future climate related litigation and guide future legislative development.

On December 2, Vanuatu and the Melanesian Spearhead Group opened the hearings giving, in essence, an opening argument. Over 100 countries and parties presented oral statements in 30 minute increments from December 2 to 13.

While the majority of the legal argument revolved around the Paris Agreement and obligations of countries to reduce GHG emissions, an disagreement arose over the obligations of fossil fuel producing countries to either cease or reduce production. Jointly, a question arose relating to the payment of fuel subsidies.

At the conclusion of the ICJ hearings, four judges posed questions: Judge Sarah Cleveland of the US, Judge Dire Tladi of South Africa, Judge Bogdan-Lucian Auresco of Romania, and Judge Hilary Charlesworth of Australia. Parties had until December 20 to file an answer.

The question posed by Judge Cleveland addressed the production of fossil fuels and subsidies.

Judge Sarah Cleveland

United States of America

“During these proceedings, a number of Participants have referred to the production of fossil fuels in the context of climate change, including with respect to subsidies. In your view, what are the specific obligations under international law of States within whose jurisdiction fossil fuels are produced to ensure protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases, if any?”

Noteworthy Responses:

United States

“… although States have obligations under international law in respect of mitigating anthropogenic climate change, in the U.S. view, there are no international legal obligations in respect of climate change that impose specific obligations on States with respect to the production of fossil fuels, including subsidization of the same.”

United Kingdom

“…the position of the United Kingdom (‘UK’) is that the Paris Agreement, through the obligation on Parties to inform, update and enhance their nationally determined contributions (‘NDCs’) by reference to the outcome of the global stocktake, contains specific requirements for States “within whose jurisdiction fossil fuels are produced to ensure protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases”, including with respect to subsidies.”

Russian Federation

“There is no direct legal link between the scope of States’ obligations to protect the climate system from anthropogenic greenhouse gas emissions and their production of fossil fuels…

“The international climate process, in its “mitigation” part, is aimed at reducing greenhouse gas emissions, rather than combating sources of emissions. Based on this, the task of a State is to reduce the amount of greenhouse gas emissions in the atmosphere produced from its territory…

“There are no grounds to believe that the State where fossil fuels are produced (extracted) has a greater scope of obligations than, for example, the State that buys fossil fuels from abroad and produces other goods from them.”

Organisation of African, Caribbean and Pacific States

“Under general international law—including the duty of due diligence and the prevention principle—States must not conduct or allow activities under their jurisdiction or control that cause significant transboundary harm, including to areas beyond national jurisdiction. This obligation has long been established in international law and has been reaffirmed in multiple international instruments and judicial decisions. In the climate context, given the catastrophic consequences of continued fossil fuel usage, due diligence requires prompt, deep, and sustained emissions reductions—and this is impossible to achieve without phasing out fossil fuel production and related subsidies.

“The obligation to phase out fossil fuel production and related subsidies also arises under human rights law… as well as marine environmental protection commitments and other sources of international law, including the right to self-determination, recognised as a peremptory norm. Collectively, these obligations require that fossil-fuel-producing States avoid further expansion of fossil fuel infrastructure and urgently halt and reverse their fossil-fuel- centred policies. They must also reorient financial flows, including by eliminating subsidies that incentivise further harm and providing finance and technology to facilitate a just transition to clean energy globally.”

Mexico

“The transition away from fossil fuel production is central to mitigating climate change, but it also poses significant economic and social challenges, particularly for developing countries. States are obligated to design and implement strategies that ensure a just and equitable transition. This includes creating green jobs, transforming fossil fuel-dependent industries, and providing economic and social alternatives to communities reliant on these industries.

“These efforts should be carried out in line with the Common but Differentiated Responsibilities and Respective Capabilities (CBDR-RC) principle, which recognizes the historical inequities in greenhouse gas emissions and the varying capacities of States to address climate change.”

Kuwait

“States have a right to permanent sovereignty over natural resources, but no specific obligations under the international law to limit or cease the production of fossil fuels…

“Climate Change Treaties primarily regulate State obligations with respect to greenhouse gas emissions and climate change. There is no specific obligation to cease fossil fuel production in the Climate Change Treaties. In fact, Climate Change Treaties does not impose specific obligations of any kind on States within whose jurisdiction fossil fuels are produced. To the contrary, the Climate Change Treaties require consideration of developing countries’ unique challenges and costs of moving away from fossil fuels.”

India

“States have an inalienable right to utilize natural resources, including fossil fuels, within their territory/jurisdiction, for their economic and social development, with the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction…

“It should also be noted that, throughout history, while the production of fossil fuels may have occurred in a particular territory, they have been utilized around the world. This is true even today, and applicable in case of most natural resources, not just fossil fuels. Therefore, the question on the obligations of States in this context should not be limited to the jurisdictions where fossil fuels are produced.

“States have no specific obligations under international law to reduce or eliminate fossil fuel subsidies. Fossil fuel subsidies are often necessitated by the national circumstances in the developing States in their efforts to alleviate poverty and pursue sustainable development and domestic energy security. Subsidizing cooking fuel subsidies to poor households, for example, are unavoidable in some countries for fighting hunger and poverty, while also actually reducing greenhouse gases (GHG) emissions from domestic cooking as compared to the use of traditional domestic cooking fuels, like wood, biomass, charcoal, etc.”

European Union

“In the view of the European Union, there are, at this stage, no specific legal obligations for States in place under international law in respect of subsidies by States within whose jurisdiction fossil fuels are produced.”

The Commission of Small Island States on Climate Change and International Law (COSIS)

COSIS “submits that consistent with the best available science, States have an obligation to take all necessary measures to transition away from fossil fuels to ensure protection of the climate system and other parts of the environment from anthropogenic GHG emissions. This is the necessary conclusion of taking account of the best available science to inform the obligations of States under customary and conventional international law…

“Accordingly, even as States maintain a level of discretion in implementation, in light of these certain, scientific facts, States have a specific obligation to take all necessary measures to transition away from fossil fuels, as many States in these proceedings have recognized.”

China

“Neither the United Nations Framework Convention on Climate Change (UNFCCC), its Kyoto Protocol, nor the Paris Agreement (collectively, the UNFCCC regime) imposes specific obligations on fossil fuel producers. Similarly, no specific obligations arise from other relevant sources of international law concerning the request for the advisory opinion, including the United Nations Convention on the Law of the Sea, international human rights treaties, or customary international law…

“While setting out the general obligations on mitigation measures, the UNFCCC also requires Parties to respect the States’ sovereign rights to exploit their own resources. The preamble of the UNFCCC recognizes that ‘States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies’. Meanwhile, the UNFCCC requires Parties to take into full account the special difficulties and requirements of countries whose economies are highly dependent on the production, consumption and export of fossil fuels. The preamble of the UNFCCC states that ‘[r]ecognizing the special difficulties of those countries, especially developing countries, whose economies are particularly dependent on fossil fuel production, use and exportation, as a consequence of action taken on limiting greenhouse gas emissions’.”

Canada

“The starting point of the present analysis is the general principle of international law that States have permanent sovereignty over the natural resources within their territory, originally recognized in the United Nations General Assembly Resolution 523(VI) from 1952. The exploitation and production of fossil fuels therefore falls within a State’s sovereign domain…

“The Paris Agreement does not contain explicit commitments related to the restriction of fossil fuel production but rather leaves it to each Party to determine which measures to take to meet the climate change goal.”

Bahamas

“…while it is in principle open to States to choose the means through which they discharge their mitigation obligations, the current scientific consensus strongly indicates that States are required to very substantially reduce the use of fossil fuels in their economies. In particular, current technology such as carbon capture and storage is able to remove only a small portion of CO2 emissions from the atmosphere. Accordingly, and consistent with the precaution and vigilance which informs States’ obligations with respect to the environment, States are (at present) required to very substantially, and urgently, reduce their use of fossil fuels…

“With respect to supply-side regulation, the best available science suggests that all fossil fuel producing States have a legal obligation to transition away from fossil fuels. In addition, fossil fuel subsidies need to be approached with extreme caution.”