Can there be climate justice if wealthy nations don't pay for the damage they've done?

Ideas53:59Fighting for Climate Justice in The Hague: Payam Akhavan

 What are the legal obligations of one state towards another when it comes to climate change? The question is the basis for landmark hearings on international law and climate change.

Since the beginning of December 2024, the International Court of Justice (ICJ) in The Hague has been hearing arguments from both the world's richest countries and poorer countries most vulnerable to the impacts of climate change. 

The hearings come on the heels of bitter disappointment with the UN climate conference — COP 29 — held in Baku, Azerbaijan in November. Many climate-vulnerable states feel disillusioned by the COP process, arguing that richer countries habitually negotiate in bad faith and try to scale back emission reductions.

The hearings were spurred by the island nation of Vanuatu — one of the most vulnerable countries in the Pacific to climate change. Vanuatu could literally be wiped off the map within decades, as rising sea levels have created coastal erosion and food insecurity, forcing people to move.

Vanuatu and its allies persuaded the United Nations to ask the court for an advisory opinion on the obligations of richer states with high greenhouse gas emissions to compensate poorer countries for the damage they suffer from climate change. 

"It is deeply unfair that countries like Bangladesh that have contributed the least to global emissions are paying the highest price, forced to make enormous investments to adapt to the catastrophes caused by high-emitting states," Iranian-Canadian human rights lawyer Payam Akhavan said in his argument to the ICJ as legal counsel to Bangladesh. 

He told the court that climate change impinges on human rights and the rights of imperilled states to determine their own destiny. 

Payam Akhavan is a familiar face at the ICJ. He was a former UN prosecutor there. IDEAS host Nahlah Ayed spoke to him following his statement to the court.

Here is an excerpt from their conversation. 

So Payam Akhavan, can you talk about just how monumental a moment it was to appear at the International Court of Justice to talk about climate justice? 

International law is integral to our vision of a better world, a just world based on the rule of law rather than violence, oppression, environmental destruction. I've been appearing before the International Court for many years now, but I think that this is the most consequential case before the court because it really implicates the survival of humankind.

And it's a remarkable coincidence that this hearing is taking place in the same year where the world has for the first time reached the 1.5°C temperature rise threshold... It's taking place a month after COP 29 in Baku was, to put it mildly, a huge disappointment, where there is absolutely no willingness to take seriously the fact that we have to phase down and out fossil fuels to prevent a dystopian future for our children and grandchildren.

For me, standing up there representing Bangladesh, as other colleagues represented other climate-vulnerable states, is really a moment of speaking truth to power. I have appeared in cases dealing with crimes against humanity, genocide, and fundamental human rights. And those are incredibly important. But even if you look at something as terrible as genocide, which affects this or that minority population in some corner of the world — which we could choose to ignore, if we don't have empathy or conscience — we cannot ignore climate change because what's happening to Bangladesh, what's happening to the small islands that are going under the water, what's happening to them today is going to happen to all of us tomorrow.

There's one climate system and it encompasses the planet, and it does not recognize any of the boundaries that we have created in our imagination. 

Climate justice is a term we hear a lot more these days, and it seems self-evident. But what would climate justice look like to you as a human rights lawyer working in international law? 

The first aspect of climate justice is the prevention of harm. Stop doing what is hurting others. And there is a principle of transboundary harm which basically says that a state cannot allow its activities on its territory that cause significant harm to others… that is the principle which climate vulnerable states are applying here.

And of course, first and foremost, the developed states and the states with the highest emissions of greenhouse gas are responsible for mitigating it rapidly and immediately and dramatically so that these other countries don't suffer harm, like massive floods and desertification, and one could go on and on to discuss all of the harm that's being done.

If they refuse to prevent this harm, then they have to pay compensation. There is a basic rule called the polluter pays principle. If you pollute, you pay. If you come and dump oil in the sea or toxic waste, well, you have to pay to clean it up.

So what's the difference between greenhouse gas emissions as a form of pollution and other forms of pollution? Yes, it may be somewhat different in terms of cause and effect. Greenhouse gases go high up into the stratosphere and they spread around the globe, and the harm sometimes is done many years later. But if you are knowingly causing harm to others, you have to accept the responsibilities.

Let's say a small island like Vanuatu becomes uninhabitable because of sea level rise and the whole population had to be repatriated. What would climate justice look like in such a scenario? 

The scale of the injustice is such that there can be really no true justice, but one still has to have at least some justice, even if it's impossible to repair the harm. So this is where we're at today.

The reason why these climate-vulnerable states have turned to international law is out of desperation. It's because the COP process, after 30 years, has failed. We are set to hit a three-degree Celsius temperature threshold by the year 2100 instead of 1.5, because the system of voluntary contributions of states voluntarily assuming the responsibility has not been taken seriously.

And international law is a way of saying, first and foremost, prevent the harm because those of you who lecture us about the rule-oriented international order are not taking your obligations seriously. If you're not willing to mitigate the harm, then you must provide at least compensation so we can take adaptation measures.

Who is going to pay? How do you decide even which countries should be responsible for paying for that?    

This is part of the discussion on loss and damages in COP at the recent meeting in Baku. And the quantification of loss and damages, let's say, by the Intergovernmental Panel on Climate Change, which is the most authoritative expression of scientific evidence, tells us that the cost is something to the effect of $1.3 trillion and the states with resources, the developed states, the petrostates, were willing to pledge just $300 billion of the $1.3 trillion. And it's not even clear if the monies that are pledged will ever actually be delivered to the climate-vulnerable states. So there is, to put it mildly, foot-dragging, if not cynical indifference to this unfolding global catastrophe.

Climate-vulnerable states are a bit like the canary in the coal mine because they are at the forefront of the damages which the rest of us will have to deal with later. Perhaps because we have greater financial and technical capabilities, we can more readily take adaptation measures, which they cannot. So it's really a unique moment in human history where we have a quintessentially global problem that requires global cooperation, where our common survival is at stake. And if we don't get it right, we will be forced to do what is necessary after we pay a very, very high and catastrophic price.  

I want to take a moment and talk about that COP meeting in Baku. There was, as you say, a lot of anger and disappointment because of, as you say, the foot-dragging that rich countries were demonstrating about helping poorer countries adapt to climate change. But what about reparations for damage that's already happened because of climate change? Is that on the table at all?  

This was the whole fight over the question of loss and damages, which, you know, after many years of struggle by climate-vulnerable states, there was a recognition, yes, we need a loss and damages fund, but the fund is really minuscule compared to what is really required.

And there is a difference between framing something as loss and damages as opposed to, let's say, climate finance. So with climate finance, you provide a loan and that loan is used for, I don't know, land reclamation or whatever other projects are required, but ultimately you become indebted. For example…a Caribbean nation that is being devastated by regular hurricanes of unprecedented ferocity. They may receive climate finance to rebuild, but they are sinking into unsustainable debt. And in any event, this should not be a matter of climate finance. It should be a matter of justice, loss and damages.  

The developed states, the petrostates and others are not willing to mitigate greenhouse gas emissions to prevent harm, and they're not willing to pay compensation for the damage that they're causing. So it's really extraordinarily irresponsible and even reckless behaviour, because the consequence isn't just that we live in an unjust world, that there is going to be increasing suffering, but also that…we are sleepwalking into our own destruction.

We need to wake up before it's too late because nature doesn't really care what we think or do. Nature has its own laws, and this is what I love about the Pacific Islanders, the Indigenous people, who basically say, as the attorney general of Vanuatu said in court, if you respect nature, nature will respect you. They understand that you don't mess with Mother Earth. They understand that in the contest between humankind and the Earth, the Earth will definitely win.   

Download the IDEAS podcast to listen to the full conversation.

*Q&A edited for clarity and length. This episode was produced by Chris Wodskou.