The ICJ heard that children in Palau stand to inherit a country that no longer reflects the stories and values of their ancestors. Credit: Joyce Chimbi/IPS
By Joyce Chimbi
THE HAGUE & NAIROBI, Dec 10 2024 – After many decades of colonial rule, Palau was the last country to emerge from the UN Trusteeship. Palau celebrated 30 years of independence in October 2024 “and takes seriously the rights and responsibilities of independence. Independence should mean that Palau is free to build its own future and be responsible for the security, safety, and well-being of its own people,” said Gustav N. Aitaro, the Minister of State of the Republic of Palau at the International Court of Justice (ICJ).
“Yet, Palau is learning that with freedom of independence must also come with a basic responsibility towards neighbours. Every independent nation must ensure that the activities they allow within their territory do not cause significant harm to other nations. Man-made climate change is now the biggest threat to the Palauan people’s independence and right to self-determination.”
In 2021, a youth group in Vanuatu collaborated with their Prime Minister to seek an advisory opinion from the ICJ on the obligations of UN member states in respect to climate change and the legal consequences of these actions. Nearly 100 states and 12 organisations have been enjoined in the case and public hearings are currently ongoing at The Hague, the seat of the ICJ, in pursuit of the much-needed advisory opinion. Among those making their submissions today were Palau, Panama and the Democratic Republic of the Congo.
Realization of Independence At Stake—Palau
Aitaro stressed that in order for Palau to fully realize its independence, “it must ask this Court to recognize that states have the legal responsibility to ensure that they do all they can to prevent emissions from their territory from causing significant harm to other states. In order to understand the threat that climate change poses to Palau, I invite you to walk with me through the lived reality of Palau, a reality deeply marked by the relentless impacts of climate change.”
Koror State is the most populous in Palau. The red areas are flood zones from sea level rise. Credit: Joyce Chimbi/IPS
In the 1970s, higher-than-normal tides were rare and only one instance was recorded, but between 2010 and 2019, the number rose to five and there were four incidences in 2021 alone, Aitaro said, showing the court how badly affected Palau is.
Ernestine Rengiil, Palau’s Attorney General, emphasised that while climate change poses tremendously complex practical problems for the world, as a matter of international law, the issue of climate change is straightforward. She said common to the principles of law of all civilized nations is the concept that one’s property may not be used to cause harm to another’s.
That if one uses or allows their property to be used in a manner to cause harm to another, that harm must be stopped and reparations paid in full. In common law systems, this is a law of nuisance.
“In civil law systems, this is a servitude established by law—and in most moral systems, this is simply the golden rule. In international law, this principle is better known as the law of transboundary harm and state responsibility. This principle is foundational to every state’s independence,” she said.
Rengiil invited the court to decline to “create new exceptions to the basic rules of the international order for climate change. The minority argue that because climate change is caused by a diffused set of global emissions sources, it will be too difficult in any future contentious cases to prove causation. But such practical problems exist in all cases and are not sufficient grounds to abandon the basic legal rules altogether.”
ICJ Needs to Reinforce International Obligations—Panama
In what is shaping up to be a David vs. Goliath public hearing, Panama’s size on the map was no barrier to making a compelling case.
“Panama, regardless of its small size and contribution of only 0.03 percent of global emissions, is mindful of the challenges that require that it has become among a handful of states a carbon-negative country. Panama is not turning away from facing the adverse conduct of others as to human-induced global warming,” Fernando Gómez Arbeláez, an expert in international legal affairs, said.
Panama invited the court to consider ongoing advisory proceedings as “a critical opportunity to attend to the inadequacies of the current Conference of the Parties, or COP, of the United Nations Framework Convention on Climate Change (UNFCCC). By means of an opinion that in itself carries great legal weight and moral authority, the court can offer much-needed legal clarity to reinforce international obligations and inspire a stronger determination to tackle the global climate crisis.”
Human Rights and Due Diligence Work Together—DRC
In her submissions, the Democratic Republic of the Congo said, although in the minority, certain states are keen to invoke the relationship between different sources of international law to require a compartmentalised reading and a selective utilisation of them. Stressing that the different international obligations of states coexist and that compliance with one obligation in no way relieves them of their responsibility with regard to the others.
Speaking on behalf of the DRC, Sandrine Maljean-Dubois, who is a dedicated teacher and researcher in international environmental law, spoke extensively of the obligation of due diligence and human rights. Stressing that these obligations are not in conflict. That the obligations for the UNFCCC framework and the Paris Agreement are reinforced by other international obligations. Emphasising that the international climate regime, specifically the Paris Agreement alone, will not prevent significant harm to the climate system.
“On the one hand, failure to implement all available means to prevent significant harm to the climate system puts the state in breach of general international law. On the other hand, it is clear that each state has to play its part. The obligation of preventing harm is informed and buttressed, in turn, by treaty obligations,” she said.
Maljean-Dubois said the obligation of due diligence requires a maximum level of vigilance. Informed by the climate regime and enlightened by the IPCC reports, “the due diligence obligation requires states to take fair, urgent and ambitious measures to mitigate the effects of climate change and to adapt to them. Far from lessening over time, this obligation has, to the contrary, become more stringent as scientific evidence has mounted.”
IPS UN Bureau Report
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