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  • Aruba A. T. de Groot Cham

ACT OF GOD or MAN? WHO WILL BE HELD ACCOUNTABLE?

Traditionally, in legal terms, an “act of God” is an event that occurs without any human intervention and is beyond human control. These events are often unexpected, such as natural disasters like earthquakes, cyclones, floods, or wildfires and can cause damage or destruction to property or other assets. When an event is considered an “act of God”, it can relieve a person or entity of liability for damages or losses resulting from the event, as it is considered to be beyond their control.


Presently, there is a consensus among scientists that the Earth’s temperature is increasing due to human activities, causing irreversible damage to our planet, including rising sea levels, extreme weather events and loss of biodiversity. The current scientific consensus on climate change implies that the effects of climate change are the responsibility of human interference.


In such, the climate change crisis has significant implications for the legal concept of “acts of God” and it is becoming increasingly challenging to argue that extreme weather events and other climate related disasters are “acts of God” that cannot be attributed to human actions. Rather, they are seen as consequences of the global climate system that humans have altered through their actions.


Regardless of the cause, it is clear that climate change is having severe impacts on vulnerable communities around the world. Small island states like Vanuatu are particularly vulnerable to the impacts of climate change. In an effort to address the issue, Vanuatu submitted a resolution to United Nations seeking guidance from the International Court of Justice (ICJ) on the legal obligations of states to protect their citizens from the effects of climate change.


The resolution begins by recognizing climate change as an unprecedented challenge of civilizational proportions and further addresses the importance of the Charter of the United Nations, the Universal Declaration of Human Rights and other relevant international agreements, including the United Nations Framework Convention on Climate Change, the Kyoto Protocol and the Paris Agreement.


This resolution specifically asks the ICJ to provide guidance on the legal responsibility of states to respect and ensure the human rights of their citizens in the face of climate change. It also seeks guidance on the obligations of states to take measures to mitigate and adapt to the effects of climate change, particularly for vulnerable populations such as small island developing states.


The resolution expresses serious concern that developed countries have not met their goal to mobilize USD 100 billion per year by 2020 in the context of meaningful mitigation actions and transparency on implementation.


This resolution could have significant implications for international efforts to combat climate change, as it could establish a legal framework for holding states accountable for their contributions to the crisis. It could also provide a guidance on the legal obligations of states to protect vulnerable populations from the impacts of climate change, and help ensure that the voices of those most affected are heard in the international community.


UNITED NATIONS CLIMATE RESOLUTION

During the 77th session of the United Nations General Assembly on the 29th day of March 2023, Vanuatu’s resolution calling for an advisory opinion on climate change from the ICJ succeeded. Vanuatu’s resolution argues that climate change poses a significant threat to the enjoyment of human rights, particularly for vulnerable communities in developing countries.


The resolution details that the adverse effects of climate change constitute a global emergency that threatens the enjoyment of a broad range of human rights and that the response to climate change must be based on the principles of precaution, prevention and protection of human rights.


The successful resolution affirms the existence of a legal obligation on the part of states to take effective measures to prevent climate change and protect human rights in the context of climate change. This obligation is grounded in international law and has been recognized by numerous international instruments and judicial decisions.


The resolution underscores the role of the ICJ in providing guidance on complex legal issues related to climate change. The ICJ is the principal judicial organ of the United Nations and has the authority to issue advisory opinions on legal questions referred to it by United Nations organs and specialized agencies.


An advisory opinion from the ICJ on the legal obligations of states to prevent climate change and protect human rights in the context of climate change, highlights the importance of the Paris Agreement as a key international instrument for addressing climate change, and underscores the role of the ICJ in providing guidance on complex legal issues related to climate change.


WHAT DOES THIS MEAN FOR VANUATU?

The impacts of climate change are already being felt by vulnerable communities, particularly in Vanuatu. For example, sea level rise has caused costal erosion, affecting the livelihoods of communities living near the coast. Extreme weather events such as Cyclone Pam in 2015 and Twin Cyclones Judy and Kevin in 2023, have also caused significant damage to infrastructure and homes, leaving many people displaced.


Vanuatu has been a vocal advocate for addressing climate change, and the resolution demonstrates our country’s commitment to taking action on this critical issue. By seeking an advisory opinion from the ICJ, Vanuatu aims to raise awareness of the legal and moral responsibilities of states and other actors to prevent climate change and its impacts.


As the principal judicial organ of the United Nations, the ICJ’s opinions are highly respected in international law. The opinion sought by Vanuatu could influence global discussions on climate change and lead to stronger international action to reduce emissions and aim to mitigate the effects of climate change.


Moreover, the advisory opinion could also provide a legal basis for Vanuatu and other small island states to seek compensation for the losses and damages caused by climate change. This could help Vanuatu, which is highly vulnerable to the effects of climate change, to receive much-needed financial support to adapt to the changing climate.


The resolution by Vanuatu to the ICJ highlights the urgent need for international action to address the impacts of climate change on vulnerable populations. The Glasgow Climate Pact and other international climate change agreements provide a framework for action, but their effectiveness remains a topic of debate.


It remains to be seen how states will respond to the advisory opinion of the ICJ, but the resolution represents a significant step towards greater international cooperation and action on climate change.


In conclusion, it is clear that the climate crisis is altering the legal concept of “acts of God”, as it becomes increasingly accepted that many natural disasters may be the result of human activities rather than natural causes. Where do you think the accountability lies?


BRIEF HISTORY OF INTERNATIONAL CLIMATE CHANGE LEGAL INSTRUMENTS AND JUDICIAL DECISIONS


VIENNA CONVENTION [1985]

The Vienna Convention for the Protection of the Ozone Layer is an international treaty that was adopted in 1985 and entered into force in 1988. The purpose of the convention is to protect the Earth’s ozone layer, which is a thin layer of gas in the Earth’s upper atmosphere that protects life on Earth from the harmful ultraviolet radiation of the sun.


The Vienna Convention was the first international agreement to address the issue of ozone depletion, and it provided the framework for the subsequent Montreal Protocol on Substances that Deplete the Ozone Layer in 1987. The Convention has been ratified by over 197 countries, including all the major emitters of ozone depleting substances.


MONTREAL PROTOCOL [1987]

The Montreal Protocol is an international treaty that was adopted in 1987 with the goal of phasing out the production and consumption of ozone-depleting substances (ODS), such as cholorflurocarbons (CFCs) and hydrochloroflurocarbons (HCFCs). ODS were used in a wide variety of applications, including refrigeration, air conditioning and aerosol sprays. However, they were found to be harmful to the ozone layer, which protects the Earth from the sun’s harmful ultraviolet radiation.


The Montreal Protocol has been widely considered a successful environmental treaty, as it has led to a significant reduction in the production and consumption of ODS, and the ozone layer is expected to recover by the middle of the 21st century.


UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE (UNFCCC) [1992]

One of the key international legal instruments for protecting the environment is the United Nations Framework Convention on Climate Change (UNFCCC), which was adopted in 1992. The UNFCCC is a treaty that aims to stabilize greenhouse gas concentrations in the atmosphere at a level that will prevent dangerous anthropogenic interference with the climate system. It has been ratified by 197 countries, making it one of the most widely supported international environmental agreements.


The UNFCCC established a framework for international cooperation on climate change, including negotiation and implementation of emissions reduction targets and the provision of financial and technical assistance for developing countries. The treaty also provides for the development and implementation of adaptation measures to help vulnerable communities cope with the impacts of climate change.


KYOTO PROTOCOL [1997]

Adapted in 1997, the Kyoto Protocol is an international treaty that supplements the UNFCCC by committing developed countries to reduce their greenhouse gas emissions by an average of 5.2% below the 1990 levels by the year 2012. The Kyoto Protocol entered into force in 2005, but was not ratified by the United States, the largest emitter at the time.


UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES (UNDRIP) [2007]

Another important legal instrument for protecting the environment and human rights is the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which was adopted in 2007. The UNDRIP recognizes the rights of indigenous peoples to self-determination, cultural identity and the protection of their lands, territories and resources. It also affirms the importance of indigenous knowledge and practices in the conservation and sustainable use of biodiversity.


International environmental law and human rights law are closely interconnected as the impacts of environmental degradation and climate change can have significant implications for the enjoyment of human rights, particularly for vulnerable and marginalized communities. International human rights law recognized the right to a healthy environment and the right to development, and international environmental law recognizes the importance of protecting human rights in the context of environmental protection.


COPENHAGEN ACCORD [2009]

The Copenhagen Accord was a political agreement that emerged from the United Nations Climate Change Conference in Copenhagen in 2009. It was not a legally binding treaty like the UNFCCC, Kyoto Protocol or Paris Agreement.


The Copenhagen Accord set out voluntary emissions reduction targets for developed and developing countries, and also established a goal of limiting global temperature rise to 2°c above pre-industrial levels. While the Copenhagen Accord was not legally binding, it did help to lay the groundwork for the Paris Agreement, which was adopted six years later and included many of the same provisions.


PARIS AGREEMENT [2015]

The Paris Agreement is a landmark international treaty that was adopted in 2015 at the United Nations Framework Convention on Climate Change (UNFCCC) Conference of parties (COP21) in Paris, France. The agreement aims to strengthen the global response to climate change by setting out a framework for international cooperation to limit global warming and mitigate its impacts.


The primary objective of the Paris Agreement is to limit the increase in global average temperature to well below 2°c above pre-industrial levels, and to pursue efforts to limit the temperature increase even further to 1.5°c. The agreement recognized the urgent need to reduce greenhouse gas emissions to achieve this goal, as well as the need to adapt the impacts of climate change that are already being felt around the world.


The Paris Agreement is a significant milestone in the international community’s efforts to address climate change, as it is the first agreement on climate change that involves all countries, developed and developing alike. It builds upon pervious international agreements, such as the Kyoto Protocol, and aims to strengthen the global response to climate change by setting more ambitious targets and establishing a more robust framework for international cooperation.


GLASGOW CLIMATE PACT [2021]

The Glasgow Climate Pact is a set of agreements and commitments that were made at the United Nations Climate Change Conference (COP26) held in Glasgow, Scotland in November 2021. The pact is seen as a significant step forward in global efforts to address climate change as it strengthened commitments from countries to reduce their greenhouse gas emissions, increased support for adaptation and resilience calling for more support for vulnerable countries to adapt to the impacts of climate change and to build resilience against future climate risks.


The pact recognizes the need for increased funding to help countries transition to low-carbon economies and to adapt to the impacts of climate change whilst encouraging countries to work together on climate actions, including through initiatives like the Paris Agreement’s Article 6, which allows countries to cooperate on emission reductions.


By increasing the ambition of countries’ climate targets, providing support for adaptation and resilience, and increasing finance for climate action, the pact sets the world on a path towards a more sustainable and resilient future.


Urgenda Foundation -v- The Kingdom of the Netherlands

In 2019, the Dutch Supreme Court ruled that the government must reduce greenhouse gas emissions by at least 25% by the end of 2020, in response to a lawsuit brought by Urgenda Foundation.


Klimaschutzklage

In 2021, a court in Germany ruled that the government must tighten its climate targets for 2030, following a lawsuit brought by environmental groups.

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