Climate Change Hearings at The Hague

Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. Now our Climate Story of the week, which we've been doing on Tuesdays all this year on the show. Last week, if you haven't heard, the top United Nations court opened two weeks of hearings into what countries worldwide are legally required to do to combat climate change. This comes after years of small island nations sounding the alarm about rising sea levels. Arnold Kiel Loughman: The stakes could not be higher. The survival of my people and so many others is on the line.

Brian Lehrer: That's the Attorney General of Vanuatu, an island nation, speaking on the first day of the hearings. Now in its second week, the Hague-based court is continuing to hear from 99 countries and more than a dozen intergovernmental organizations. It's the largest lineup in the institution's nearly 80-year history, according to the AP. Joining us now to explain the hearing so far and what relief they may provide for vulnerable nations and what the arguments are on either side is Nikki Reisch, director of the Climate and Energy Program at the Center for International Environmental Law. Nikki, thanks for joining us. Welcome to WNYC and our climate story of the week.

Nikki Reisch: Thanks so much for having me.

Brian Lehrer: Is this like a civil case? Who's suing who?

Nikki Reisch: It is very much a David and Goliath battle that's really about justice and accountability. What we have going on here at the International Court of Justice is an advisory opinion proceeding. The court has been asked by the United Nations General Assembly to issue guidance on two critical questions, to answer what legal obligations states have under international law to protect the climate system, so to take action on climate and what the legal consequences are, what responsibility they bear when they fail to do so, and it causes harm, as it so clearly has.

It's not a case between two individual states, but it is a case that is important to every state, and it comes really from a huge push by Vanuatu and other Pacific island states, as well as youth from the Pacific and around the world who have been at the forefront of the movement for climate justice for so long and on the front lines of climate harm and who have turned to the World Court to really clarify that states need to act not out of moral obligation or charity, but a legal duty, and to really hold big polluters to account, to clarify and create an accountability framework, lay out what big polluters have to do not only to stop the polluting conduct that's gotten us to this state of crisis and put so many lives at risk, but to remedy and repair the harm, which is only escalating around the world.

Brian Lehrer: There have been years of lobbying which doesn't have the teeth of an International Court of Justice ruling by island nations. My understanding is that Vanuatu, that Pacific island country that's extremely vulnerable to sea level rises led the way. Here's a longer clip than we played in the intro of Arnold Kiel Loughman, the Attorney General of Vanuatu.

Arnold Kiel Loughman: I have come before this court because domestic legal remedies are unable to address a crisis of this scope and magnitude. Under international law, states have obligations. Obligation to act with due diligence to prevent significant harm to the environment, to reduce the emissions, and provide support to countries like mine, to protect the human rights of present and future generations.

Brian Lehrer: We'll hear the counterargument from the United States in a minute, but are there clear laws, some kind of international laws or law regarding climate?

Nikki Reisch: Absolutely. At the heart of this question before the court is precisely what are those international laws? One of the lines of division between the positions being staked out before the court is around how long those obligations have existed and what are the sources of obligation. As you heard the attorney general just saying, there are obligations under multiple sources of international law, international human rights law, international environmental law, long-standing customary international law that is binding on all states, that prohibit states from using their territories to cause harm or permitting activities in their territories that cause harm to other countries.

Similarly, longstanding obligations under human rights law to prevent foreseeable harm to human rights foreseeable violations. States have these preexisting duties. Of course, those duties were part of what led to countries of the world to negotiate the climate agreements, the United Nations Framework Convention on Climate Change in 1992, and the subsequent agreements, including the Paris Agreement, those climate treaties. Those climate treaties respond to those pre-existing duties, those longstanding duties to prevent harm and not to cause pollution across borders.

They don't erase those existing duties. One of the big arguments here is that the conduct of polluting countries over many decades, knowing full well that that pollution would cause climate change and devastating consequences and the truly devastating consequences that have materialized, that that conduct was unlawful and is unlawful under international law. It triggers an obligation of those big polluters to repair the wrong, not out of the goodness of their hearts, but out of legal obligation.

Brian Lehrer: The hearing has also featured pushback from developed nations like the United States, also Saudi Arabia, also China. Here's a clip of Margaret Taylor, who spoke on behalf of the US in the Hague on Wednesday.

Margaret Taylor: International Human Rights law, however, does not obligate states to mitigate anthropogenic greenhouse gas emissions, nor does it currently provide for a human right to a healthy environment, although the United States remains open to participating in a state-led process to develop such a right.

Brian Lehrer: Again, that's U.S. State Department legal advisor Margaret Taylor from last Wednesday at the International Court of Justice in the Hague. She went on to say that we have other avenues to deal with the impacts of climate change, like the so-called COP conferences, COP for Conference of the Parties to a UN climate agreement that was a few decades old, also the Parrot Climate Accord from 2015. Can you elaborate on her argument on behalf of the United States?

Nikki Reisch: Sure. This contention from big polluters like the United States has come through loud and clear. They really laid out their position before the Court, but it's a minority position and the majority of states participating before the Court have agreed that the climate obligations of states neither start with nor end with the Paris Agreement or the climate treaties. What the US is effectively-- their argument boils down to our obligations to act on climate change are found only in the climate treaties and the Paris Agreement, and those treaties require very little, actually.

They allow states to take voluntary action to determine their own national climate plans and that there's not even an obligation to achieve those targets that are set at the national

l level, but that that's what the world has agreed, and our obligations start and end with the Paris Agreement. This issue came before the International Court of Justice and Vanuatu and other states on the front lines of the climate crisis brought this to the Court precisely because the global climate negotiations have clearly not addressed the crisis, have not compelled the kind of action by big polluters to stop fossil fuel emissions and to remedy the harm that's necessary.

It's an important moment to say that actually, you had long-standing obligations for the many decades, indeed the century throughout which pollution has happened. As soon as you were aware that that pollution would cause harm, as the United States certainly has been aware in other countries for many decades, since at least the early 1960s, and you continued to ramp up those emissions, to produce and use more fossil fuels and continue to do so today, that that conduct is unlawful and it was unlawful then.

The United States is really trying to say that we can't be held accountable. They're trying to encourage the Court, as are other big polluters, to sweep history under the rug and to say don't look backwards, past conduct is in the past. Just look forwards now on what we've all agreed to cooperate on, the global climate talks. Those talks are really failing to deliver on justice and accountability and they're not sufficiently grounded in long-standing legal duties that require countries to stop polluting and to start remedying the harm.

Brian Lehrer: Listeners, if you're just joining us, we're in our climate story of the week with Nikki Reisch, Director of the Climate and Energy Program at the Center for International Environmental Law, as we talk about about a court case that's taking place right now in the Hague at the International Court of Justice, basically some of the most climate vulnerable nations like the Pacific island nation of Vanuatu that we've been talking about suing big climate polluting nations like the United States and China and Saudi Arabia for reparations as well as other things based on the harm they've caused that should be-- that they claim are regulated by international law.

Anybody have a question or a comment about this? 212-433-WNYC. 212-433-9692. Call or text. I'm glad you brought up that point of looking backwards because we played the clip of the U.S. State Department Legal Advisor Margaret Taylor defending the United States at this hearing and she did also take issue, in addition to what we heard in the clip, with the fact that developing countries are, ''Looking to this opinion for retroactive reparations for climate change.'' What kind of damages are they seeking based on previous pollution if the International Court of Justice rules in their favor?

Nikki Reisch: To be clear, the opinion the Court of Justice will issue here won't resolve a specific dispute or won't point fingers at one country, or award damages per se. What it will do is lay out a legal blueprint that could give rise to future claims between states and certainly should guide future climate action and hopefully ratchet up ambition and accountability. More specifically, what countries are asking for is reparation and repair of the damage that's been done commensurate with the harm.

That could take the form of compensation and we have heard countries here demanding compensation for the extreme costs that they're facing in terms of lives and property, livelihoods, cultures. It also is about structural reforms. We've heard calls for debt cancellation. We've heard calls for important changes to the financial system. Crucially, the first step upon recognition that countries are violating their legal duty to prevent harm to other countries' environments and to human rights is to cease the harm.

They're demanding a recognition that Countries have a legal duty to stop fossil-fueled climate pollution and to start reversing the trends we've seen of really doing damage not only to the most vulnerable countries but to the entire world, to humanity as a whole. It's critical that that reparation can take many forms. It's about money. Certainly, we know that the countries least responsible for this crisis are bearing the brunt of its impacts. You mentioned COP before, and part of the reason, the impetus for turning to the court here for legal clarity is the inadequacy and the repeated failures and shortcomings of the negotiations to result in the kind of climate action or climate reparation we need.

We just saw that in Baku, Azerbaijan this year, which was hailed as the Climate Finance COP. Well, the final deal, the money that was pledged, as you noted in the outset by developed countries, number one, was only promised. The deal doesn't actually commit them. It doesn't recognize their legal obligation to provide that money. It's a promise and we've seen broken promises before and it's not on the order of magnitude necessary. We're talking about trillions of dollars in damages and adaptation costs every year and the cost of mitigating climate change, and this was a relative drop in the bucket, but again, not grounded in recognition of the legal duty to pay up for climate action and harm.

Brian Lehrer: We covered in this series the COP 29 conference which took place last month, that annual UN climate meeting. Wealthy countries did agree to pull together at least $300 billion a year by 2035. We talked about it on that show, but maybe you should say it again because a lot of listeners will hear $300 billion, that's really a lot of money. You're saying, as the country said during the COP conference as well, ''No, no, this needs to be trillions.'' People will hear this and say, ''Wait, trillions? That's the whole annual US Budget. Why is that fair?'' Can you talk about that from the vulnerable nation's point of view?

Nikki Reisch: Absolutely. First, just on the order of magnitude, even at the COP conference, the deal that was announced at the end itself recognized that the cost of climate action is tremendous and that it's on the order of many trillions of dollars a year. This is a global target. Nobody is saying that the United States alone should pay those trillions, although some might claim it owes that given its share of the responsibility for the crisis over many decade. This number is by no means unreasonable given the actual scale of the harm.

Let's recall also that the countries that are facing the need to pay these enormous costs to transition their economies to recover from climate disasters, they're not the ones who've caused this problem. It also is important to put the number in context. We're talking about 300 billion. Sounds big, but when you actually look at it, rich nations spend far more than that annually on fossil fuel subsidies. We're actually giving, as the IMF itself has reported, over $1 trillion every year globally to fossil fuel subsidies. Hundreds of billions of dollars in the United States and in other major emitting economies are bankrolling the polluters.

It's not a matter of a lack of money. It's about shifting the money from climate destruction to climate action, and that's really the demand. To be commensurate with the scale of the harm to come from those countries that bear the responsibility for causing this crisis and to shift those public funds out of the bad, out of investing in fossil-fueled destruction, and into climate action and reparation.

Brian Lehrer: Mook in State College, Pennsylvania, you're on WNYC. Hello, Mook.

Mook: Hi Brian. Hi, Nikki. Thanks so much for covering this segment. I just wanted to ask, related to what you just were talking about, Nikki, is, are fossil fuel companies getting left off the hook here in this international law and is there a possibility that the fossil fuel companies who did most of the polluting are not being held liable because the states are potentially being held liable? Related to what you're talking about about fossil fuel subsidies, is there some sort of mechanism that could come to play where international law holds that governments are responsible and states are responsible, but they would have to maybe reduce some of these fossil fuel subsidies to try to make sure that these funds are being distributed like you were mentioning, towards the places that need this funding? Thank you so much.

Brian Lehrer: Good question.

Nikki Reisch: Sure.

Brian Lehrer: Nikki?

Nikki Reisch: Yes, sorry. Thank you. It's a great question. Again, to clarify, what's happening here at the International Court of Justice is not putting any single country on trial. It's really looking at the issue of the climate crisis and what are the obligations of all states, but particularly developing states that have caused the crisis. Far from excluding any future legal action against governments or companies that could well inform those cases. There's a tide of climate litigation going on around the world. Some of those cases are against governments.

Some of those cases are against companies, big polluters, the fossil fuel industry in particular, for its responsibility for the crisis and its ongoing expansion of fossil fuel production and use. By all means, the legal pronouncements here, the clarification that the court will provide about what international law requires will be relevant to that climate litigation in the future, including to claims against corporations. One of the key issues has actually come up, and it came up forcefully in some of the arguments made yesterday, is really about the duty of states to regulate corporations.

Even though much of the international law we're talking about binds states directly and isn't directly written to bind corporations. It requires states, that is countries, to regulate corporate activity, to regulate corporations, to prevent them from engaging in harmful and destructive conduct. A strong reinforcement that states need to be regulating and indeed phasing out fossil fuels as the primary driver of the climate crisis would strengthen the case for such regulations and laws at the domestic level and would help feed into accountability efforts to hold those big polluting companies directly accountable.

Absolutely, people arguing here in the court have indeed put on the table the need for states to shift to stop subsidizing climate destruction, the generation of greenhouse gas emissions from fossil fuels and other activities, and to shift that money to put their money where their legal obligations lie, and that is with prevention of harm and protection of human rights.

Brian Lehrer: To that point, maybe we have a text from a listener who writes, ''I've been to eight COPs, including Baku this year. While more money is needed, we also need to think, is throwing money at the problem going to fix the problem? One organization said we have money without a plan or a plan without money.'' What do you think about that?

Nikki Reisch: I definitely don't think money alone will fix the problem. I think much of the debate and the political contention that has always been, it's probably true in every geopolitical space and multilateral negotiation is around money. Who's going to pay for the action that's needed? Because things cost money. It costs money to transition away from fossil fuels, even if it will free up money from subsidizing those things and paying for renewables. It costs money to deal with the climate impacts. I think that it's not an either-or proposition.

We need urgently to stop the activities that are driving the crisis and to get nations to recognize their legal obligation to do more. It's not enough. We've seen here in these talks the rich countries using the Paris agreement, using the Climate Convention as a shield from accountability, as saying that it's the watered down version of obligations contained therein is all we need to do. In fact, just going to COPs every year doesn't satisfy those duties. We need them to act to mitigate and we need clear money on the table to cover the harm and the adaptation for sure.

Brian Lehrer: Here's some pushback from another listener on exactly that point. Listener writes, ''Your guests should be honest and admit that they are asking the World Court to make up new law, legislation that has never existed before. It may be the right thing in the opinion of small nations that want money from the larger richer countries, but it is not and has never been the law. That's why countries were negotiating the Paris Accord. This has never been the international law in the history of people and nations.'' What do you say to that listener?

Nikki Reisch: I respectfully disagree and quite forcefully, the question before this Court and the majority of countries that have come before this Court have all agreed. This is not about creating any new law. It's actually about applying longstanding, extremely longstanding rules of international law. The fundamental principle that-- and it really stems from self determination and territorial integrity, that one country cannot undertake activity or allow activity in its territory that harms another country. That is a fundamental precept of international law has long existed.

What makes it fundamental is that it applies in many factual contexts. It's been used to control cross border pollution of various types. When you apply that law, along with the long standing law under human rights treaties, which have existed at least in their codified form since after World War II, and some of them principles before. That states have an obligation to take action to prevent foreseeable threats and harms that undermine human rights. Now, both of those principles, they don't say greenhouse gas emissions in their earlier formulations and they don't say climate change, but that's what courts do, is to apply the law like that in principle to different contexts and situations.

Now we are facing the threat we are facing and it requires action. As soon as countries knew, as they did for decades, that greenhouse gas emissions could trigger catastrophic levels of harm and climate change, they had a duty at that time to act to prevent it. That is precisely what's at the heart of what's being argued here, because otherwise, to say that obligation is a new thing means that we erase history. That the decades of pollution that got us here are irrelevant.

Brian Lehrer: Last question in our last-minute, listener writes, ''What do you think the Trump administration will do on this issue?'' Actually, I want to reframe that a little bit to if the Court rules in favor of the vulnerable countries and then presumably the Trump administration says, Really, are you kidding me?'' Do they have any way to enforce the ruling?

Nikki Reisch: The power of the law that will be pronounced through this advisory opinion, this guidance is not just about its direct enforcement, but it's about aligning understandings of what conduct is permissible and isn't. I think if the court is to underscore that there are legal obligations that long predate the UN Climate regime and continue to apply, and those obligations include preventing harm and remedying it when you cause it. That that signal will be very important in the United States and elsewhere. This is about customary laws that bind the US and have done for decades in other countries, and we can't allow the U.S. position and administration to dictate climate policy or to say what the law is.

It's not up to polluters to pronounce the law. That's why we're turning to this Court and authoritative body to say what it requires. The pressure will be on, as it will always be, to hold the United States and other countries to their long standing and existing obligations to cease the harm they're causing and to and to repair it. That is precisely the crux of justice and accountability at the heart of this proceeding.

Brian Lehrer: An International Court of Justice ruling is expected in the new year. That's our climate story of the week. Nikki Reisch is the Director of the Climate and Energy Program at the Center for International Environmental Law. Thank you so much for coming on.

Nikki Reisch: Thank you for having me.

 

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