Ryan Ba­choo

Lead Ed­i­tor — News­gath­er­ing

ryan.ba­choo@cnc3.co.tt

Just over a week ago, the In­ter­na­tion­al Court of Jus­tice (ICJ) be­gan con­sid­er­ing the le­gal re­spon­si­bil­i­ty states hold for caus­ing cli­mate change.

It was a land­mark le­gal pro­ceed­ing un­prece­dent­ed in the his­to­ry of law. Cli­mate change has nev­er re­ceived le­gal at­ten­tion be­fore. In­stead, the moral oblig­a­tion of hu­man­i­ty—or the con­science if you may—has been the dri­ving force be­hind the push to tran­si­tion from fos­sil fu­els to more sus­tain­able forms of en­er­gy.

When the mat­ter was brought up in The Hague, Nether­lands, T&T na­tion­al Justin So­bion was one of the lawyers rep­re­sent­ing Small Is­land De­vel­op­ing States (SIDS).

So­bion, an in­ter­na­tion­al en­vi­ron­men­tal lawyer and se­nior tu­tor at the Uni­ver­si­ty of Auck­land rep­re­sent­ed Grena­da and St Vin­cent and the Grenadines as an ex­ter­nal coun­sel.

This was a mo­ment five years in the mak­ing. In 2019, Pa­cif­ic Is­land Uni­ver­si­ty stu­dents from Van­u­atu dis­cussed the idea of tak­ing cli­mate change to the ICJ. How­ev­er, the body does not recog­nise in­di­vid­u­als, on­ly states. The small Pa­cif­ic is­land of Van­u­atu kick­start­ed the push. The move­ment snow­balled and gained the sup­port of oth­er na­tions around the world. Here in the Caribbean, nine states were part of the mat­ter. T&T wasn’t one of them.

So­bion told the Sun­day Guardian, “It was dis­ap­point­ing be­cause we lob­bied T&T just like all oth­er states but at the end of the day when I look at it, when we were putting for­ward ar­gu­ments, we were tak­ing in­to con­sid­er­a­tion all the dif­fer­ent nu­ances, vari­a­tions and par­tic­u­lar­i­ties we have so, in a sense, T&T was well rep­re­sent­ed even if not on pa­per.”

The ad­vi­so­ry opin­ion from the ICJ won’t be known for an­oth­er six to nine months but So­bion says this could “open the flood­gates” when it comes to cli­mate change lit­i­ga­tion.

Ac­cord­ing to the In­ter­na­tion­al Union for Con­ser­va­tion of Na­ture (IUCN), this his­toric pro­ceed­ing start­ed with a re­quest from the UN Gen­er­al As­sem­bly in March 2023, in which the body asked the ICJ to weigh in on key ques­tions in­clud­ing what are the oblig­a­tions of states un­der in­ter­na­tion­al law to en­sure the pro­tec­tion of the cli­mate sys­tem for present and fu­ture gen­er­a­tions?

An­oth­er key ques­tion was the le­gal con­se­quences un­der these oblig­a­tions for states where they, by their acts and omis­sions, have caused sig­nif­i­cant harm to the cli­mate sys­tem and oth­er parts of the en­vi­ron­ment.

The IUCN says while there’s been a grow­ing trend of na­tion­al courts tak­ing up cli­mate change-re­lat­ed cas­es—es­pe­cial­ly in the wake of the 2015 Paris Agree­ment—it’s still rel­a­tive­ly rare for in­ter­na­tion­al tri­bunals to do so.

So­bion ex­plained, “This is non-bind­ing. It’s just the UN Gen­er­al As­sem­bly ask­ing the ICJ what they think about this par­tic­u­lar is­sue, just like when a client goes to a lawyer and the lawyer gives them ad­vice.”

How­ev­er, he says the ad­vi­so­ry opin­ion is ground­break­ing in that it will at­tempt to clar­i­fy the laws sur­round­ing the Paris Agree­ment, UN­FC­CC, and hu­man rights law.

“The law that it is go­ing to in­ter­pret is bind­ing,” he added.

So­bion says the world will be ea­ger­ly watch­ing on to see what the opin­ion of the ICJ on this mat­ter as it will be used at COP ne­go­ti­a­tions as it per­tains to the loss and dam­age fund and even when it comes to in­ter­na­tion­al and do­mes­tic cli­mate change lit­i­ga­tion.

How­ev­er, he was quick to warn that the ad­vi­so­ry opin­ion will not stop cli­mate change nor will it hold high-pol­lut­ing coun­tries to ac­count and make them pay repa­ra­tions, but he says it will open up the flood­gates at the end of the day.

“When you look back at it 20 years from now, you can ac­tu­al­ly say—and I hope that the judges go on the right side of his­to­ry when they make a pro­nounce­ment—that it was his­to­ry in the mak­ing and it will con­tin­ue to be,” So­bion added.

“I think this will def­i­nite­ly be the mo­ment. You can say this will open the flood­gates, es­pe­cial­ly if we get an am­bi­tious and pro­gres­sive ad­vi­so­ry opin­ion. How­ev­er, we went in­to this as SIDS, Caribbean and the Pa­cif­ic, we were the ma­jor­i­ty, of course, but even though things seem to be in the favour of our own ar­gu­ment, we could nev­er be com­pla­cent.”

He said there are 15 judges of high in­ter­na­tion­al rep­u­ta­tions but they all come from dif­fer­ent back­grounds “so you re­al­ly do not know how these judges think.”