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As the world’s top court decides what the legal obligations are for countries to respond to climate change, Canada weaponized the Paris Agreement in an attempt to shirk responsibility, critics say.
Over two weeks of hearings at the International Court of Justice (ICJ), housed in The Hague, the Netherlands, representatives from 96 countries and 11 international organizations laid out competing visions for how international law should take climate change into account. Hearings ran from Dec. 2 to 13, and the ICJ will now answer two questions.
The first is, what are the obligations of states under international law to protect the climate from human-caused greenhouse gas emissions? The second: what are the legal consequences for failing to act?
Countries already have obligations to cut emissions under the legally binding Paris Agreement, but international law encompasses more than climate treaties. It includes human rights, the law of the sea, customary law and more, meaning the ICJ’s answers to those questions could reshape international law by explicitly clarifying how those legal frameworks should be interpreted in an era of climate breakdown.
At the hearings, Ottawa argued that countries’ obligations to respond to climate change start and end with the UN Framework Convention on Climate Change and Paris Agreement, agreed to in 1992 and 2015 respectively. The UN framework convention broadly commits countries to stabilize warming temperatures at safe levels, while the Paris Agreement more specifically aims to limit warming to 2 C above pre-industrial temperatures.
Those agreements commit countries to voluntary action, but do not effectively hold them accountable for failing to cut emissions at the pace and scale required to avoid catastrophic warming. Vulnerable countries, which have contributed the least to the crisis yet face the brunt of damages, say this amounts to a violation of their human rights and undermines their sovereignty. Wealthy, high emitting countries like Canada, however, do not want to see international law rewritten in a way that could hold them liable for climate damages — expected to total in the tens of trillions of dollars.
“I was really disappointed by Canada’s position,” said David Boyd, an associate professor with the University of British Columbia and former UN Special Rapporteur on human rights and the environment. “I mean Canada lined up with Saudi Arabia, Russia, the United States — basically these major emitters are making the argument that the only legal obligations they have are the obligations set forth in [those agreements].”
“Major polluters, including the US, UK, Russia, China, Germany, Saudi Arabia, Canada, Australia, Norway and Kuwait, found themselves isolated in their attempts to play the legal system to serve their self-interests and insulate themselves.”
The crux of Canada’s argument is that states cannot be held responsible for failing to address climate change because there is no international law recognizing it as a wrongful act.
“A state cannot be liable for something that was not a violation of international law at the time of the action,” Louis-Martin Aumais, legal adviser and director general of international law at Global Affairs Canada told the court. “Consequently, any action that a state took prior to becoming a party to the Convention or the Paris Agreement could not be counted against it as a breach of international law in the context of climate change.”
Boyd called this a “ridiculous argument” that attempts to use international climate change agreements as a shield to avoid being held accountable. Those negotiated agreements were supposed to strengthen the world’s responsibility for dealing with the climate crisis, and should not be used to absolve nations of responsibility for addressing it, he said.
“By saying that the only things that apply are the Paris Agreement and the 1992 framework convention, Canada went on to reject the principles of prevention, international generational equity, reject the principle of polluter pays, [and] reject the right to a healthy environment,” he said. “[It’s] saying none of these principles are part of customary international law, so they just don’t apply.”
A Global Affairs Canada spokesperson did not answer questions from Canada’s National Observer. Instead, in a statement, the spokesperson noted international laws do not prevent Canada from developing a climate change response that “serves as a model for the global community.”
The most the spokesperson said about Canada’s argument was the country’s “submissions to the court reflected our understanding of the current obligations of states under international law.”
Sebastien Duyck, senior attorney with the Centre for International Environmental Law, said in a statement the hearings have laid bare the gap between major polluters and countries in the Global South.
“Major polluters, including the US, UK, Russia, China, Germany, Saudi Arabia, Canada, Australia, Norway and Kuwait, found themselves isolated in their attempts to play the legal system to serve their self-interests and insulate themselves from accountability,” he said.
‘Most consequential case’ in human history
The historic hearings are in response to a request last year from the UN General Assembly to the ICJ asking for an advisory opinion on states’ obligations. Countries rallied behind this request because the world is failing to rapidly draw down global greenhouse gas emissions.
The hope among climate advocates and vulnerable countries is that by clarifying that countries are legally obliged to significantly cut emissions — based on internationally recognized human rights and principles like avoiding transboundary harm — the climate crisis can be more effectively addressed than it has been to date under the voluntary UN system, called the Conference of Parties (COP).
In three decades of climate change diplomacy, global greenhouse gas emissions have risen each year setting new warming records. As the planet heats up, sea level rise is swallowing small island states, mega-wildfires are torching vast swaths of forests, and damages have climbed into the trillions. Without major change, by 2050 an additional 14.5 million people are expected to die prematurely from air pollution, floods, droughts, and heatwaves.
In his opening address to the court, Vanuatu special climate envoy Ralph Regenvanu, said the “prolonged and systematic failure of the COP process” means an urgent response to climate change, grounded in international law, is now required.
“This may well be the most consequential case in the history of humanity,” he said. “Let us not allow future generations to look back and wonder why the cause of their doom was condoned.”
Vanuatu attorney general Arnold Loughman told the court major emitters have destabilized the climate system and caused catastrophic harm through the burning of fossil fuels — and that countries have done this despite existing obligations to prevent significant harm to the environment, to protect human rights, and to respect countries’ self-determination.
“In a system intended to uphold peace and security, self-determination, the enjoyment of fundamental rights and the protection of the environment, how can the conduct that has taken humanity to the brink of catastrophe, threatening the survival of entire peoples, be lawful and without consequences?” he argued.
Vanuatu officials are clear that the country wants to see the ICJ recognize that causing the climate crisis is unlawful, it must end, and harms must be fairly addressed.
Addressing those harms is “really getting down to the brass tacks,” Boyd said. In international law, if a state violates its international obligations, it owes compensation to those it harmed.
“It’s a form of liability that could be imposed on countries like Canada, which is what we’re afraid of,” he said. “The bill for reparations is going to be a lot bigger than the [voluntary measures].”
International laws can be used to adjudicate problems between countries, and lead to fines and reparations. Some of the core principles at play in the current case actually originated from a dispute between Canada and the U.S. In the Trail Smelter dispute, the U.S. took Canada to the International Joint Commission over pollution from a zinc and lead smelter that it said was violating its sovereignty by impacting farmers. In its decision in 1941, the tribunal ordered reparations be paid to affected farmers, and established the concept of transboundary harm, and the polluter pays principle, as a way to ensure countries maintain sovereignty from threats outside their border. Now, Canada and the U.S. are arguing together against the application of those concepts.
Far reaching impacts
During the climate hearings, a “peoples’ petition” was submitted to the court by a coalition of youth groups including the Pacific Island Students Fighting Climate Change, World Youth for Climate Justice, and Future Generations Tribunal. The petition includes testimony from people in Global South countries describing how climate impacts are undermining health, safety and economic security, and contributing to the loss of culture, language, ways of life and more.
Lilly Teafa, an Indigenous woman from Tuvalu, said she’s witnessed increasingly intense and frequent cyclones that devastate her nation of nine low-lying coral atolls. Nine years ago during Cyclone Pam, her home island was devastated with the storm tearing families apart and destroying houses, she said.
“The emotional trauma of seeing my young cousin clinging to her mother’s remains and hearing the cries of a mother searching for her son’s body in the ocean (moana) still haunts me,” she said. “We need support for adaptation and outreach programs to help us maintain our statehood and identity.”
Beyond vicious storms, Purbayan Chakraborty, a lawyer from West Bengal, India, described how erratic rainfall, droughts, rising temperatures and soil degradation has led to a crisis in the local tea industry. She said workers had already been trapped in “exploitative cycles of poverty” that have only been exacerbated due to climate change, pointing to specific impacts on women, who are often denied maternity leave, with employers citing the poor state of the tea industry as a justification to deny those labour protections.
Climate change is also fuelling a migration crisis, said Gerardo Aguilar, a coordinator with the Asociación por el Desarrollo de la Península de Zacate Grande (Association for the Development of the Zacate Grande Peninsula) in Honduras. He said in his community there used to be two harvesting seasons, but in the past five years it has become impossible to carry out a spring harvest. Droughts have led to a “death” of watermelon crops, and led to a decline of shrimp harvesting.
“Nobody needed to go to another country to make money, and we lived happily,” he said. “Ever since the watermelon and shrimp seasons have disappeared, many people have had to leave my community to make a living elsewhere.”
Vanuatu has long been at the forefront of international climate leadership. Beyond spearheading this month’s ICJ hearings, borne out of classroom discussions, it was also the first country to endorse a fossil fuel non-proliferation treaty to strengthen global efforts to address global temperature spiralling out of control.
In an interview with Canada’s National Observer last year at the UN climate summit in Dubai, Regenvanu said increasingly petrostates, like Canada, are viewed as “rogue states.”
“The message from the Pacific small island developing states … is that Canada has to immediately stop any further expansion of fossil fuel production,” he said at the time. “It has to do that now if it’s going to be faithful to the science. We all know that.”
A study from Oil Change International published last year found Canada is on track to be the second-largest fossil fuel expander, behind only the U.S., by 2050. On its own, Canada’s planned fossil fuel expansion represents 10 per cent of the world’s expansion plans, creating the equivalent greenhouse gas emissions of 117 coal plants run for decades.
The ICJ is expected to release its decision in 2025.