Aryaman (JFIEL): Notably, Vanuatu’s case has encountered resistance from major polluters, including the United States, India, and China, which has also affected submissions to ITLOS. How do you foresee the situation progressing if these three major polluting countries continue to object to the ICJ Advisory Opinion? To what extent could their persistent objections influence the ICJ’s decision regarding its obligations? Is it possible for these countries to impact the ICJ’s ruling?
Justin Sobion: At this stage, I am not fully aware of the litigation strategies of India or the United States, or their specific positions in the ICJ proceedings. Currently, the process involves inviting all countries to submit written statements. My role in this ICJ advisory opinion process is to encourage as many Caribbean countries as possible to submit written statements, even if they are brief. Additionally, we are advocating for the inclusion of statements from indigenous groups or youth, if possible, to be annexed to these submissions.
It is important to note that countries like India, the US, and China, though their litigation strategies are not known to me, also have the opportunity to file written statements. This opportunity extends to international organizations as well, such as OPEC, which has received permission from the court to submit a statement. The content of OPEC’s statement regarding climate change and state responsibility remains uncertain.
The ICJ provides an opportunity for parties to submit responses in a second round of submissions, with the deadline for this being April 2024. However, if a country does not submit a statement in the first round, it will not be eligible to file a reply in the second round. This underscores the importance for all affected countries to file written statements to ensure they have the opportunity to respond to the positions of major developed countries. In the UN and the ICJ, each country has an equal voice, and it is crucial for all nations to participate to ensure their perspectives are heard.
Aryaman Kapoor: You have served as a diplomat at Trinidad and Tobago’s Permanent Mission to the UN and as a Human Rights Officer for the United Nations. Based on your firsthand experience, how would you address criticisms regarding the enforceability of the United Nations? Do you find yourself in agreement or disagreement with such critiques? Additionally, do you observe any discrepancies between the practice of international law within the United Nations and the way it is taught in law schools or other educational institutions? Are there procedural differences or deviations from the theoretical principles that are typically emphasized in academic settings?
Justin Sobion: Regarding the United Nations, it is important to recognize both its strengths and areas for improvement. The UN has been instrumental in advancing global progress, and without it, the world might have been considerably less advanced. However, its potential for impact remains underutilized. The UN’s achievements are notable, but there is room for greater progress.
Take, for instance, the Human Rights Council, which was significantly shaped by Kofi Annan. Its initiatives, such as the Universal Periodic Review (UPR), provide valuable peer reviews of human rights records for all member states, including India. Although some critics view it as a mere “talk shop,” the UPR allows states to voluntarily present their human rights achievements and areas for improvement. Nevertheless, my critique of the United Nations, drawn from my experiences as a diplomat and representative, is that the organization, founded in 1945 in response to the aftermath of World War II, continues to operate with a framework designed for mid-20th-century issues. As we approach the eighth decade since its establishment, the UN must adapt to address contemporary global challenges rather than focusing on the issues of the past.
Significant reforms are needed, particularly within the Security Council, which is overdue for modernization. Additionally, the Trusteeship Council, inactive since 1994, could be repurposed to address global environmental governance and other pressing 21st-century issues. The UN must evolve to tackle current global problems effectively and reflect a 21st-century mindset rather than remaining entrenched in outdated approaches.
Aryaman: There is an established framework for the protection of the environment during armed conflicts, yet it appears to have been overlooked in the ongoing Russia-Ukraine war and was not addressed at the recent G20 summit in India. In your opinion, does the protection of the environment typically receive adequate priority during armed conflicts? While there is often discourse about preserving heritage and culture during such times, where does climate and climate change fall on this priority list? What measures can be taken to elevate its importance in these discussions?
Justin Sobion: Humanitarian Law, essentially the legal framework governing conduct during armed conflicts, sets out rules on various aspects, such as handling prisoners of war, protecting civilian structures, and limiting the destruction of environmental resources. For instance, it prohibits bombing civilian targets like hospitals and schools. However, in practice, these laws are often disregarded.
To address this issue, there has been a movement advocating for the recognition of “ecocide” as an international crime. This concept, supported by organizations like “Stop Ecocide,” argues that intentionally using war to harm the environment or using nature as a tool of war should be classified as a crime, similar to crimes against humanity under the Rome Statute. This includes actions such as targeting or bombing dams, poisoning natural resources, or deliberately damaging nature to demoralize opposing forces or harm civilian populations. This movement has gained momentum in recent years, with discussions and conferences, such as one held in Trinidad and Tobago, highlighting its importance and the ongoing efforts to establish ecocide as a recognized international crime.
Aryaman: That’s a very interesting perspective and one that will certainly resonate with readers. There’s considerable existing research on this topic, but it seems that there’s still room for more extensive literature. Moving on, I’ll combine the last three questions into one. There’s been significant discussion regarding environmental accountability and state obligations. Given the Paris Agreement and potential outcomes from the ICJ, ITLOS, or other tribunals debating climate change obligations, how do you think these developments will influence the approaches of international law in the Global South? Do the current frameworks adequately address the needs and concerns of developing countries?
Justin Sobion: I don’t believe the existing frameworks fully address the needs of the Global South. It’s crucial for developing countries to be more aware and proactive about their actions. For example, Trinidad and Tobago, with a population of about 1.3 to 1.4 million, is a small developing nation, and Ghana, another developing country, has recently begun exploring oil. Politicians often argue that their countries are not responsible for the climate crisis, which was caused by industrialized nations. They question why they should manage their resources differently. However, climate change does not recognize borders and will affect everyone, regardless of size or location. Therefore, every country, no matter how small, has a role in addressing climate change.
While I understand the political stance in these regions, it’s important for them to consider both mitigation and adaptation strategies. Crisis situations, like the current climate emergency, are opportunities to demonstrate creativity and innovation. For instance, during the COVID-19 pandemic, people had to find new ways to generate income and adapt to new circumstances. Similarly, the climate crisis calls for inventive solutions and a shift in approach.
In the case of countries dependent on oil and gas, like Trinidad and Tobago, and new oil explorers like Ghana, it’s vital to explore alternative strategies. Instead of focusing solely on fossil fuels, investing in sustainable tourism and other innovative solutions could be a way forward. The Global South needs to pivot and adopt strategies that are not necessarily dictated by the Global North but are tailored to their unique circumstances and potential for survival.
Aryaman: One final question for this interview. Climate change has been an ongoing issue for centuries, with various countries contributing differently over the years. Despite numerous agreements and treaties aimed at reducing carbon emissions, there have been significant violations and lack of cooperation. How can we hold countries accountable for their contributions to climate change? Specifically, how do we determine the time frame for accountability? What considerations should be made when setting this boundary? How should the ICJ or ITLOS approach this issue in their deliberations?
Justin Sobion: Addressing this issue is complex. For instance, the Paris Agreement was established in 2015, nearly a decade ago, and many states have yet to meet their commitments. A significant amount of greenhouse gases from the industrial revolution era is already trapped in the atmosphere. Climate change is a gradual process that doesn’t present immediate, visible impacts. Scientists suggest that a certain amount of carbon emissions has been locked into the system since the 19th century. The Paris Agreement, aiming to limit global temperature rise to between 1.5 and 2 degrees Celsius above pre-industrial levels, may no longer be sufficient. Even achieving a 1.5-degree limit might be inadequate given current scientific assessments.
The challenge is whether we can effectively renegotiate climate goals. Can we truly adjust the course of climate change through negotiations, or is it something beyond our control? The ongoing COP conferences, which often become political arenas rather than effective platforms for action, may not be enough. Climate change, biological loss, and rampant pollution are crises that demand immediate, practical solutions rather than political compromises.
We need to rethink our approach to climate negotiations and embrace a more collaborative, innovative process. This could involve integrating grassroots initiatives, such as the “People’s COP,” alongside state-led efforts. Ultimately, addressing the triple planetary crisis—climate emergency, biodiversity loss, and pollution—requires coordinated action between states and citizens to develop and implement effective solutions.
Aryaman: That concludes our discussion, and we greatly appreciate your time and insights. Thank you for spending nearly an hour with us and sharing your valuable perspectives.
Click here for Part I.
Justin Sobion is an Attorney at Law specializing in International Environmental Law. He obtained an LLM (Hons) in International Law from the University of Cape Town, South Africa, in 2008, and an LLM (Hons) in Environmental Law in 2020 from the University of Auckland, New Zealand. He also possesses an LLB (Hons) from the University of the West Indies. Justin was admitted to the Bar to practice law as an Attorney at Law in the Republic of Trinidad and Tobago in 2002 and later as a Barrister at Law and Solicitor in the Commonwealth of Dominica in 2008. His experiences in International Law include Environmental Law, Human Rights, Constitutional Law, and International Law of the Sea.
Presently, Justin is a Senior Tutor and is also working on his PhD thesis on Earth Trusteeship at the University of Auckland. He has also been on a panel of international lawyers established by Vanuatu to assist Caribbean states in preparing their written statements regarding the ICJ advisory opinion on the obligations of states in respect of climate change.
Interviewed by Tamanna and Aryaman Kapoor, the Editors-in-Chief (2023). Transcribed and edited by Charunivetha, JFIEL Editor.
Picture Credit: Win Mcnamee/Getty Images
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