Elizabeth Morgan | Climate change, an ICJ opinion, and reparation claims – is this realistic?

WE ARE all feeling the heat. It seems that the historic average high temperature in July in Kingston and St Andrew was about 31 degrees Celsius (88 degrees Fahrenheit). For this July, it seems that the average afternoon temperature is now over 32 degree Celsius (about 90 degrees Fahrenheit), and one or two degrees, with humidity, make a difference. Climate change is real both at micro and macro levels.

Jamaica and other CARICOM countries are also impacted by actions at the national level, such as deforestation for construction, and, at the international level, by the generally high carbon emissions warming the atmosphere and seas, and the melting of the polar ice caps causing sea level rise.

49TH CARICOM HEADS COMMUNIQUÉ

Thus, climate change and climate finance continue to be priority issues for CARICOM and are reflected in the Communiqué of the 49th CARICOM Heads of Government Conference. The CARICOM Heads congratulated the Caribbean Community Climate Change Centre on its 20th anniversary and recognised its significant support to the CARICOM climate agenda. CARICOM would continue to focus on the special circumstances of Small Island Developing States (SIDS). They also reiterated their support for the various climate financing initiatives. They called on major economies to take urgent action to meet their obligations under the various multilateral agreements and decisions emerging from the various climate change and environmental meetings, including those dealing with biodiversity.

It will be recalled that the matter of climate change and climate finance was also on the agenda of the 4th International Conference on Financing for Development held in Spain. See this Gleaner column titled ‘A Launchpad for action?’ of July 16.

Countries have made commitments to development financing, including climate finance, which requires trillions of dollars, and for carbon emission reduction, but these have not been fully realised.

It will also be recalled that the USA, the largest funder of the UN multilateral system, and a large polluter, has withdrawn from the UNFCCC Paris Climate Accord, rejected various climate financing proposals, and generally rejected the UN Sustainable Development Goals and its financing arrangements. The US Trump Administration does not support climate change and reducing carbon emissions. It supports the increasing extraction and use of fossil fuels.

ICJ ADVISORY OPINION

Proposed by a group of Pacific island law students in 2019, the UN General Assembly approved a resolution supported by a group of SIDS countries, including Antigua and Barbuda, the Maldives, and Vanuatu, requesting an advisory opinion from the International Court of Justice (ICJ) on the obligation of States in Climate Change. The ICJ delivered its landmark opinion on July 23. It advised that climate change treaties and conventions set binding obligations for states to ensure the protection of the climate system and other parts of the environment from greenhouse gas emissions. States can be held accountable for failure to meet these obligations and for infringing human rights protections. This also raises the matter of entitlement to reparation claims.

This is seen as a victory for SIDS. But, as an ICJ opinion is not legally binding, how can it be implemented or enforced?

THE REALITY OF IMPLEMENTING THIS OPINION

This ICJ opinion looks very good on paper. The world, however, is in a very difficult situation at this time with US President Donald Trump throwing international trade and the multilateral system generally into deep uncertainty and with countries looking out for their own interests, trying to stay on President Trump’s good side. Fear seems to have gripped members of the international community as they try to come to terms with the geopolitical crises in the age of Donald Trump.

There is a major shortfall in global development aid and countries are diverting funds from development to security. Many SIDS, through the Organization of African, Caribbean and Pacific States (OACPS) Samoa Agreement, would hope that on climate change and other development issues, they are in alliance with the European Union (EU). They would also hope that they have allies in the UK, Canada, Australia, and New Zealand, but, in these uncertain times, are these dependable alliances? Do the developed countries have to implement anything, even though they themselves are at risk? How will rulings be enforced? There is the infamous case of Antigua and Barbuda in dispute settlement at the World Trade Organization (WTO). Antigua and Barbuda won the case, but the US never settled, as far as can be ascertained.

Do the SIDS have the resources to take any country to court? Can they rely on support from any of the other developing countries, such as China and India, also industrialisers?

So, there is an ICJ advisory opinion which favours SIDS. Wonderful! But, realistically, can it be implemented and enforced? This, perhaps, is where civil society needs to be more proactive on climate change, insisting that governments act, as temperatures rise, and there are more droughts, floods, storms, and wildfires. This means action from civil society both at the national level, that governments must address local environmental issues contributing to climate change, and at the international level, to address climate change impacts and other environmental issues.

We will see how this is addressed at the upcoming UNGA in New York and COP 30 in Brazil. A Global Biodiversity Alliance Summit, aimed at protecting global biodiversity, was recently held in Guyana. Arising from these, including financing for development, will countries actually honour their obligations and take account of the ICJ advisory opinion?

REPARATIONS FOR SLAVERY

As we look at this issue of climate change and reparation claims, on Friday, August 1, most countries in CARICOM will mark Emancipation Day, ending slavery in the British Empire on August 1, 1834, and fully in 1838. There is a CARICOM movement to claim reparation payments for historic human rights infringements during the transatlantic enslavement of African people in the Caribbean. This is a proposed claim for trillions of dollars to address underdevelopment issues attributed to historic enslavement and colonisation. The 49th CARICOM Heads Communiqué also addressed this reparation proposal and various pathways to addressing this issue.

So, for the CARICOM SIDS, reparation claims could be sought for climate change mitigation, believed to be strengthened by the ICJ opinion, and slavery, a work in progress, with no ICJ opinion, so far. Quite serious and complex undertakings in these times.

Elizabeth Morgan is a specialist in international trade policy and international politics. Send feedback to editorial@gleanerjm.com