On July 23, the International Court of Justice issued a groundbreaking Advisory Opinion clarifying that states have an obligation to tackle climate warming. The ruling, while not binding, also affirmed, in an unequivocal way, the duties and responsibilities of nations who have been historically responsible for the emission of carbon fossils. The AO is certainly charting a new phase both in the field of climate negotiation and in the realm of climate litigation, with the latter set to expand and scale in ways that are difficult to imagine.
At the same time, it might be useful to reflect about the trajectory, the pathway that led to the Hague where the ICJ is located. We should not forget that it all started with a group of law students at the University of South Pacific in Suva, Fiji. They were the ones, emboldened with sheer confidence and ambition, who had started working on the rationale, the legal case for which the ICJ should step in. It was because of their irreverence and perhaps recklessness that we have reached this turning point in the fight to uphold the Paris Agreement. Their stories have been celebrated worldwide and rightly so and by now, there have been many articles, videos about them.
However, let us not forget that, it is also worth remembering another part of the story. It was because of the Government of Vanuatu that the case for an AO could be brought to the General Assembly of the United Nations, an indispensable step to reach the ICJ. A small island nation of approximately 320.000 people was able to gather the required support from other member-states and convince them of the urgency of approaching the ICJ. It was a long and complex journey that started in 2019.
When I first heard this story, I could not stop thinking about the following question: if the students that had dared to start this process were from Nepal, a nation much bigger and powerful than Vanuatu, would they have received the same level of support from their own government? Well, this is an inescapable question.
While it is true that the federal government in Kathmandu embraced the case during the hearings at the Hague, I have been wondering if Nepal would have been able to garner the 105 co-sponsor nations at the General Assembly without whom the resolution would have never passed. Perhaps the key question is not really about the diplomatic capacities of Nepal at the UN. Probably it would not have been unimaginable for Kathmandu to bring together enough co-sponsors like Vanuatu did, ensuring that the resolution paving the way for ICJ’s intervention would pass through consensus at the General Assembly.
The real question to ask ourselves is another one: would, at first, the government have listened and backed a group of its own law students? This is a fundamental aspect to discuss. It is also important to remember that Nepali youths were also very active in supporting the cause globally. Some of them have been taking the lead at national and regional level through the World’s Youth For Climate Justice, the global movement that was initially spearheaded by the students at the University of South Pacific.
The same group of youths played an important leadership role in ensuring that the Government of Nepal could have a strong representation when the country defended the need for an AO during the official hearings at the ICJ in December last year. It is probably safe to say that without their involvement, Arzu Rana Deuba, the Foreign Minister of Nepal, would not have given a strong and convincing statement at the Hague.
Therefore, it is appropriate now to think about the future months when the AO’s principles will start reverberating in the international community and yes in the court of justice around the world. While it is impossible to summarize here through a few lines some of the legal principles and substantive statements from the ICJ, it is worthy to remember that the justices also expressed their opinion on the states’ responsibilities to prepare the Nationally Determined Contributions (NDCs). These are the commitments that all the parties to the Paris Agreement have pledged to implement in order to reduce (in jargon, “mitigate”) their carbon emissions.
According to the AO, the preparation and implementation of NDCs are not entirely discretionary for the governments. In practice, it means that these documents must be ambitious and each respective country must have concrete plans to effectively implement them so that they can scale back their emissions. Only in this way, the entire international community can collectively be able to limit global warming to 1.5°C as per the Paris Agreement.
Even more far bridging is the fact that parties to the Paris Agreement not drafting or not doing enough to implement the NDCs, can be found in breach of international law and their action or omission can be considered an internationally wrongful act. This is a very important aspect of the AO that perhaps has not received adequate attention as most of the commentary has been on the duties and responsibilities of industrialized nations’ responsible for anthropogenically-induced climate change.
For developing and emerging nations, the part of the AO on the NDCs requires utmost attention. Preparing an ambitious NDC is a complex task and Nepal has been showing leadership when it recently finalized its latest version, the third overall since the approval of the Paris Agreement. It also means that the country needs to introspect and reflect on the tools and policies at disposal to ensure that it can do whatever it can to implement the NDC. While many of its components will depend on foreign assistance on the part of the polluting industrialized nations, a lot of its implementation will rely on effective and transparent governance at both national and local levels.
And here another question: does Nepal have in place effective mechanisms to ensure that those parts of the NDCs under its direct control, the ones implementable without any form of foreign aid including funding for loss and damage or even possible future compensation, can be achieved? Even in the case of Nepal being able to receive the much-needed climate finance from outside, will the country be able to use these resources effectively and transparently? That’s why it is appropriate for the nation to brainstorm on the most effective tools and mechanisms to ensure that Nepal does whatever is possible to implement the NDCs parts where it has a direct control on the outcomes.
One way to start rethinking the national climate governance is to have solid mechanisms to engage members of the civil society. We could imagine a National Climate and Biodiversity Council consisting of members of civil society, including representatives of academia. It is important to also include the area of biodiversity because, as we know, we are talking about two sides of the same coin even if then, at the international level, nations have the burdensome duty of dealing with two completely different negotiation mechanisms.
Half of the seats available in the Council should be assigned to local youths who would represent the whole diversity of the nation, therefore also ensuring the participation of youths from historically marginalized communities that, so far, have been less involved and engaged on climate work. The Council should not be just a sounding board for the government but a platform that can, on one hand, propose ideas and solutions, while, on the other, keep a check on the government’s implementation of the NDC.
The central level body at the federal level could work in partnership with similar mechanisms at provincial levels with some sort of loose and light coordination between the two levels. Memberships could come through consensus and ensure that certain criteria are met in order for someone to be able to claim a seat. I am talking about a voluntary role that, if obtained, will only be for a limited amount of time, perhaps one year or maximum two years with the possibility to renew it for another year.
Another option would be to have a body that is exclusively composed of youths, a Youth Climate and Biodiversity Council but I am afraid such an approach would only invite tokenistic results and its work might not be taken seriously. Remembering how the international community got this trailblazing AO is paramount. A small group of law students were able to initiate a global movement and, with the right support, they made history. Then, why not entrust more policymaking responsibilities, including some forms of decision making to them in implementing the Paris Agreement at the national level? After all, who can better ensure that AO will be literally upheld and put into practice?
