By Robert Andre Emmanuel
More than 6,000 kilometres from home, Antigua and Barbuda is taking a stand against developed wealthy nations who seek to negotiate their way out of their climate obligations under international law.
Prime Minister Gaston Browne — supported by a legal team of Zachary Phillips, J’Moul Francis, Jeniece St Romain, Nneka Nicholas and Colin Murdoch, Permanent Observer of the Organization of Eastern Caribbean States to the United Nations Office in Geneva — spoke yesterday before the International Court of Justice in the Netherlands, arguing about the legal obligations of states to address the climate crisis.
The hearings come amid growing frustration with international climate negotiations, including disappointing outcomes at COP29 and failed negotiations in South Korea regarding a treaty to address global plastic pollution.
With over 100 countries and international organizations expected to argue before the ICJ climate hearings between December 2-13, the Court’s advisory opinion will provide clarity to determine the legal consequences of states’ actions contributing to climate change.
Vanuatu emphasized that climate change threatens their very existence, with a small number of states producing the majority of historical greenhouse gas emissions.
Browne reiterated the impact of the climate crisis on the country, referencing the devastation of Hurricane Irma, highlighting that if Antigua was unable to support the rebuilding of Barbuda, much of its residents would be “climate refugees”.
“My government, for years, sustained the livelihood of the people and rebuilt Barbuda at an immense cost, adding significantly to our debt burden.
“While large, wealthy countries can borrow on their capital markets at 3 percent per annum, the so-called ‘high-income SIDS’ like Antigua and Barbuda must borrow commercially at 10 percent to finance repeated rebuilding of infrastructure damaged by hurricanes caused by the failure of other states to mitigate emissions,” he said.
Barbados similarly highlighted the economic vulnerability, with Hurricane Beryl destroying 90 percent of its fishing fleet and causing over $100 million in damage.
They also showed how warnings on climate change have been raised to top political leaders in the developed world from as early as 1962 and argued that many of these states continued their harmful activities despite knowing potential consequences.
In contrast, countries like Saudi Arabia advocated for maintaining state sovereignty in climate negotiations.
They argued that although they acknowledge the urgency of climate change, particularly as their country is vulnerable to extreme heat, water scarcity, and desertification, climate action needed to be balanced with other development goals like energy security, poverty eradication, and economic development.
They also argue that the court should not impose obligations beyond what is established in specialized climate change treaty regimes, similar to South Africa who argued that the court consider the responsibility of states through a narrow lens of UN climate agreements.
Saudi Arabia sought to maintain that states have discretion in setting their climate goals, through voluntary National Determined Contributions (NDCs).
Crown Counsel Zachary Phillips, however, noted that the Paris Agreement—the 2015 global treaty where countries agreed to work together to fight climate change—should not be used as a shield to escape accountability, emphasizing that customary international law remains important alongside climate treaties.
“First, these states argue, in effect, that the obligations of the Paris Agreement are merely procedural, in other words, so long as the states tick the box to identify a nationally determined contribution, or NDC, it has complied with Article 4 of the agreement.
“For these states, this is so, even if both the ambition and the implementation of the NDC, fall manifestly short of a meaningful contribution to ensuring that temperatures do not rise above 1.5 degrees.
“Second, these states simultaneously argue that either the Paris Agreement displaces all of the relevant rules of international law, including the customary obligation of prevention, or that compliance with Paris translates automatically to compliance with those other rules,” Phillips reasoned.
He further analysed that this would be a highly regressive approach, as the discussions brought by larger nations would lead to the “surprising conclusion that climate change treaties leave the world and the most vulnerable states therein less well protected than if these treaties had never been concluded” and that NCDs are not “empty decorations”.
Phillips emphasized that the attempts by high-emitting states to render the customary rule of prevention inapplicable are unconvincing.
He highlighted that these states consistently try to distinguish between conventional transboundary harm and harm caused by the climate crisis, calling this a “contrived distinction” with no basis in law or fact.
“The large-scale nature of the trans-boundary environmental crisis does not carry it beyond the scope of international law,” Phillips stated. “To the contrary, the protections of international law apply with added rigour.”
He rejected arguments that applying the prevention obligation to climate change would require new customary rules, stating that this confuses the existence of a norm with its application to specific facts.
Phillips stressed that international courts can and must apply existing norms when presented with specific evidence.
Phillips also addressed the complex issue of state responsibility, arguing against claims that the ‘complexity of climate change makes it impossible to establish responsibility.’
Phillips described attempts to avoid reparations as a “perversion of fundamental principles of justice”.
“When the court has been faced with similar arguments, it has consistently rejected them,” he noted, emphasizing that the uncertainty of scientific causal links should not preclude the duty to make reparations.
The presentation highlighted the need for states to act with diligence, particularly developed nations, outlining the specific emission reduction targets.
The arguments stressed that while all states must contribute to emission reductions, developed countries bear a greater burden, noting that the absence of an internationally agreed equitable share of the carbon budget is not an excuse for inaction.
“In the absence of an agreement, a diligent state must develop its own methodology to determine its equitable share using the best available science in good faith,” Phillips emphasized.
The Prime Minister framed the argument not as an accusation against developed nations, but as a quest for collective survival.
“We seek this advisory opinion not to point fingers but to clarify the obligations of states under international law before the clock on our survival runs out,” he stated.
