By Nkiruka Nnorom
Nigeria and other OPEC nations that are considered major polluters may face increased scrutiny and potential legal challenges for their role in contributing to greenhouse gas emissions following a landmark ruling by the International Court of Justice, ICJ, yesterday that has paved the way for countries to sue each other over climate change.
In the advisory provided by the UN court, it stated that countries could be in violation of international law if they fail to take measures to protect the planet from climate change, and nations harmed by its effects could be entitled to reparations.
“Failure of a state to take appropriate action to protect the climate system from greenhouse gas emissions, including through fossil fuel production, fossil fuel consumption, the granting of fossil fuel exploration licences or the provision of fossil fuel subsidies, may constitute an internationally wrongful act which is attributable to that state,” the court said in the advisory.
Notably, the court said a “clean, healthy and sustainable environment” is a human right and stated that it is the obligation of states to regulate the activities of private actors licensed to to engage in fossil fuel exploration as a matter of due diligence.
“Therefore, attribution in this context involves attaching to a state its own actions or omissions that constitute a failure to exercise regulatory due diligence. Thus, a state may be responsible where, for example, it has failed to exercise due diligence by not taking the necessary regulatory and legislative measures to limit the quantity of emissions caused by private actors under its jurisdiction.
“The legal consequences resulting from the commission of an internationally wrongful act may include the obligations of cessation of the wrongful actions or omissions, if they are continuing; providing assurances and guarantees of non-repetition of wrongful actions or omissions, if circumstances so require; and full reparation to injured states in the form of restitution, compensation and satisfaction,: the court further stated.
The court President Yuji Iwasawa called the climate crisis “an existential problem of planetary proportions that imperils all forms of life and the very health of our planet.”
The judge, however, noted that untangling who caused which part of climate change could be difficult.
Judge Iwasawa also said that if countries do not develop the most ambitious possible plans to tackle climate change this would constitute a breach of their promises in the Paris Agreement.
He added that broader international law applies, which means that countries which are not signed up to the Paris Agreement – or want to leave, like the US – are still required to protect the environment, including the climate system.
The non-binding opinion, backed unanimously by the court’s 15 judges, was hailed as a turning point in international climate law.
Oxfam International Climate Change Policy Lead, Nafkote Dabi, said: “Oxfam is proud to have supported young climate defenders from the Pacific and elsewhere who bravely took their fight for justice from a classroom in Vanuatu to the world’s highest court. They won the world a tremendous victory today.
“This ruling elevates national climate commitments everywhere by confirming that countries must reduce emissions enough to protect the universal rights to life, food, health and a clean environment. All countries, particularly rich ones, now have to cut their emissions faster and phase out fossil fuels. “Rich countries have to increase their financing to Global South countries to help them reduce emissions and protect their people from past and future harm. This is not a wish-list – it is international law.
“We now have a powerful tool for holding countries to account for their obligations, especially in protecting the world’s most marginalized people and future generations of humanity.”
Many poorer countries had backed the case out of frustration, claiming that developed nations are failing to keep existing promises to tackle the growing problem.
But developed countries, including the UK, argued that existing climate agreements, including the landmark UN Paris deal of 2015, are sufficient and no further legal obligations should be imposed.
On Wednesday the court rejected that argument.
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