Further Legal Consequences of Obligations Erga Omnes (Partes) in the ICJ Climate Change Advisory Opinion: Duty of Non-Recognition and Article 62 Intervention

In its Climate Change Advisory Opinion, the International Court of Justice held that certain climate-related obligations of States under customary international law and climate change treaties are erga omnes (partes). One important consequence – as the Court explicitly confirmed – is that States can invoke each other’s responsibility for breaching those climate obligations. As Paddeu and Jackson also noted, that includes commencing contentious proceedings before the Court, provided there is a jurisdictional basis. But that is not the only legal consequence for States that are neither in breach nor injured. Using Judge Tladi’s Declaration as a starting point, I discuss (1) the duties of non-recognition, non-assistance, and co-operation, as well as their implications on (2) interventions under Article 62 of the Court’s Statute. For simplicity, I only address erga omnes obligations, though the analysis applies mutatis mutandis to obligations erga omnes partes. In a companion post with Panpailin Jantarasombat, we address the potential legal consequences for a State in breach with respect to peoples and individuals, especially given the ICJ’s silence on whether States’ climate-related human rights obligations in particular are erga omnes.

Duties of Non-Recognition, Non-Assistance, and Co-operation

When a State breaches its primary climate obligations erga omnes, are other States and international organizations such as the UN under secondary duties to cooperate to bring the breach to an end, and not to recognize or assist in maintaining the unlawful situation resulting from the breach?

According to Judge Tladi’s Declaration, those were indeed what the Court apparently held in the Occupied Palestinian Territories (OPT) Opinion last July, with which he disagreed at the time. In that case, Judge Tladi criticized the Court’s holding as “based on a complete miscomprehension of the relationship between peremptory norms and erga omnes obligations” (para. 30). Citing the conclusions of the ILC, of which he was member and Special Rapporteur, he argued that these duties flow from a serious breach of an obligation under jus cogens, rather than obligations erga omnes. Given this earlier dissent, it is unsurprising that Judge Tladi now sees an “incoherence in the Court’s jurisprudence” in the Climate Change Advisory Opinion, on account of how the Court this time does not identify “the duties of non-recognition, non-assistance and co-operation […] as legal consequences resulting from the breach” (paras. 36-7).

While this long-simmering doctrinal debate – whether those secondary obligations result from the erga omnes character of the primary obligation or the peremptory nature of the norm violated – deserves more than a blog post, I make three observations.

First, this question is not purely academic here, since it remains unclear whether (and if so which) climate-related norms are peremptory. On the one hand, the IACtHR’s Opinion – delivered just before the ICJ’s – declared the right to a healthy environment to be jus cogens, but did not touch on (i) its relationship with “the obligation erga omnes not to cause transboundary environmental damage”, or (ii) whether its breach entails a general duty of non-recognition. On the other hand, the ICJ carefully spoke of obligations erga omnes because of States’ common interest to protect the “global commons”, but without discussing (i) whether they also derive from “the basic rights of the human person” (Barcelona Traction), or (ii) whether those obligations also pertain to the right to a healthy environment. Thus, after these opinions, States now face additional uncertainty on their secondary obligations concerning climate change.

Second, with that said, one may wonder whether Judge Tladi’s premise for the alleged “incoherence in the Court’s jurisprudence” is necessarily so: did the Court really hold that “those consequences do not attach to the breaches (of obligations erga omnes) in this case”? While States would likely prefer greater certainty as mentioned, it could simply be read that the Court chose to omit those consequences on the understanding (correct or not) that it was only requested to render advice on the legal consequences for States in breach, rather than for other States and the UN, as was the case in the OPT Opinion.

Thus, it should be assumed that breaches of the obligations erga omnes to protect the climate system do result in duties of non-recognition upon other States and international organizations. To be clear, this is not because the ICJ’s jurisprudence has normative priority over the ILC’s teachings – it does not, formally – but rather as a practical matter for States, at least until the Court and the Commission find alignment.

Third, the answer to this doctrinal question is not necessarily binary and exclusive; it is possible that the non-recognition duties attach to a (serious) breach of erga omnes obligations as well. This position is, for one, consistent with the ICJ’s jurisprudence on the duties of non-recognition, non-assistance and cooperation (as the Court has not explicitly preferred an erga omnes basis or precluded a jus cogens basis). And it is supported by the teachings of other publicists (e.g., 2005 IDI Resolution, Article 5(b)). Even the ILC itself views jus cogens/erga omnes as having “substantial overlap”.

Apart from these formal bases, there are valid doctrinal grounds for this position as well. It is a matter of good faith that duties of non-recognition should attach, in order to give effect to the very purpose of erga omnes obligations. The essence of an erga omnes obligation is that all States, qua obligees, have a legal interest in its compliance. While this interest may give rise to a right to invoke a non-compliant State’s responsibility, it would lose its effect if other States, at the same time, retain their freedom to recognize the breach or assist the non-compliant State. Thus, the performance of obligations erga omnes in good faith requires that a breach entail the negative duties of non-recognition and non-assistance. Similarly, it is logical that the positive obligation of cooperation is not only limited to the primary level of environmental protection and climate change, but also applicable to the secondary level upon a breach of the relevant obligations erga omnes.

In sum, States are not only obligees of the obligations erga omnes, but also obligors on both the primary and secondary planes: they are obliged not just to refrain from causing significant harm to the climate system themselves, but also to cooperate and refrain from recognition and assistance when another State is in breach. This brings me to a further, more practical implication of erga omnes nature of the climate obligations for States, namely interventions under Article 62 of the Court’s Statute.

Article 62 Interventions

When a claim is brought before the Court against a State for breaching its climate obligations erga omnes, as mentioned, a non-injured State could institute proceedings in parallel or as co-applicant if there is a jurisdictional basis.

However, can it request the Court’s permission to intervene in the case under Article 62 of the Court’s Statute, that is, as a State having “an interest of a legal nature which may be affected by the decision in the case”, or – to use the more general French formulation as originally drafted in 1920 – “un intérêt dʼordre juridique est pour lui en cause”?

In the context of Honduras’s Article 62 request in Territorial and Maritime Dispute (Nicaragua v. Colombia), the Court first distinguished between legal “interest” and “right”, before further holding that:

Article 62 requires the interest relied upon by the State seeking to intervene to be of a legal nature, in the sense that this interest has to be the object of a real and concrete claim of that State, based on law, as opposed to a claim of a purely political, economic or strategic nature. (para. 37)

Nevertheless, Article 62 was drafted and applied in an era defined by territorial and other bilateral disputes. The Court has traditionally viewed that “the raison d’être of intervention is to enable a third State, whose legal interest might be affected […], to participate in the main case in order to protect that interest” (Nicaragua v. Colombia, para. 46). While this still holds true, I argue that the Court’s jurisprudence must be developed to remain apposite to obligations erga omnes, in which context the distinction between a non-injured applicant “first” State and an intervening “third” State is more technical than substantive. After all, to a layperson, the non-injured State may appear to be itself “intervening”, so to speak, on behalf of the victims against the wrongdoer.

Obligations Erga Omnes and the Article 62 “Interest of a Legal Nature”

Neither the Court nor its predecessor has decided whether a non-injured State would have the requisite interest arising from erga omnes obligations – not yet. Much will turn on the ongoing case of South Africa v. Israel, where both Palestine and Belize have sought Article 62 intervention on the basis of obligations erga omnes partes under the Genocide Convention (Palestine’s request was also on the alternate basis of its specially affected interest; whereas Nicaragua had withdrawn its earlier Article 62 request).

I agree that the question must be answered in the affirmative for two reasons. First, as Palestine and Belize submitted in their Article 62 applications, States’ common interest in seeking compliance of obligations erga omnes (partes) constitutes the requisite legal interest under Article 62. This equally applies in respect of States’ “common interest in the protection of global environmental commons like the atmosphere and the high seas” (Climate Change Opinion, para. 440).

Second, as Belize also pointed out, this legal interest is potentially affected due to the legal consequences of obligations erga omnes (partes). As mentioned above, the Court’s decision on a State’s violation of a climate obligation erga omnes potentially results in duties of non-recognition, non-assistance and co-operation upon all other States. As obligor of such “secondary” obligation, such a State has, therefore, a legal interest that “may be affected by the decision in the case” – or simply “pour lui en cause”.

Party vs Non-Party Interventions by Non-Injured States

Still, why would a non-injured State seek the Court’s permission to intervene, instead of filing its own case? One key difference and advantage lies in jurisdiction.

As a preliminary observation, I note that Article 62 is often referred to as “third-party” intervention. This, too, is not entirely accurate. Although Article 62 of the PCIJ Statute previously referred to “interven[ing] as a third party”, that phrase was removed in its successor’s Statute. Indeed, in Nicaragua v. Colombia, the Court confirmed that “a State may be permitted to intervene under Article 62 of the Statute either as a non-party or as a party” (para. 27).

A key difference is that “the status of intervener as a party requires […] the existence of a basis of jurisdiction as between the States concerned” (para. 28). A State intervening “as a party may submit claims of its own to the Court for decision”, provided they are “linked to the subject of the main dispute” (para. 47). Moreover, an Article 62 intervener “may not, under the cover of intervention, seek to introduce a new case alongside the main proceedings” and cannot “alter the nature of the main proceedings” (ibid.).

Two conclusions can therefore be drawn when a State is sued before the Court for breaching its climate obligations. First, States (parties) with applicable jurisdictional bases can (1) institute their proceedings, possibly to be subsequently joined, or (2) request Article 62 intervention as a party, in which case they could also claim their own rights and would be bound by the Court’s decision under Article 59 of the Statute. In litigation arising from obligations erga omnes, the two are practically the same.

Second, all States (parties) are entitled to request Article 62 intervention as a non-party, irrespective of any jurisdictional basis (e.g., due to reservations or absence of applicable optional-clause declarations). This is because the intervention is based on Article 62 of the Statute, not the compromissory clause of a particular instrument. In my view, this would encourage further participation of States – even those otherwise more sceptical of the Court.

Conclusion

While the Climate Change Advisory Opinion focuses on the legal consequences for a State in breach of obligations erga omnes (partes), there are legal consequences for States not injured or in breach. They have not only the right to invoke the responsibility of the State in breach, including through litigation, but also the secondary duties of non-recognition, non-assistance, and cooperation. In turn, these constitute legal interests that may be affected by the Court’s decision, entitling these States to seek intervention under Article 62 of the Statute.

While this blog post does not address the legal consequences for international organizations such as the UN – whether they also bear secondary duties of non-recognition, whether they also have legal interest arising from contentious climate proceedings, and how to protect that interest outside of Article 62 – a further study is certainly warranted.