About the Author: Vaishnav M. is a BA LLB (Hons) student at the National University of Advanced Legal Studies, Kochi, India. His interests span international law, constitutional law, political philosophy, and public policy. He is a junior editor at the NUALS Law Journal. He is extremely grateful to Dr. Balakrishnan K. for reviewing earlier drafts of the piece.
In March 2023, the United Nations General Assembly (UNGA) requested the International Court of Justice (ICJ) to issue an advisory opinion on climate change obligations of States. The proceedings are ongoing, and the ICJ’s formal opinion is expected by late 2025. In May 2024, the International Tribunal on the Law of the Sea (ITLOS) issued an advisory opinion affirming the legal obligations of States to protect the ocean from climate change under the United Nations Convention on the Law of the Seas (UNCLOS).
The ICJ has its work cut out. It should not forget that the impact of climate change is disproportionate, and the climb towards addressing climate change is steeper for some countries than others. Against the backdrop of the proceedings, the emergence of peremptory norms of general international climate law (GICL) is an eventuality that cannot be overlooked.
Peremptory norms or jus cogens are the foundational principles of international law that no State can violate. Today, it includes the prohibition of genocide, slavery and piracy, the right of self-determination, and the principle of non-refoulement (Allain, see page 539), among others. In 2023, a study commissioned by the European Parliament recognized the possibility of certain GICL norms rising to the status of jus cogens.
In light of the 2023 study and the ICJ proceedings, this article draws on Third World Approaches to International Law (TWAIL) to analyze the potential role of peremptory climate norms in promoting equitable solutions to combat climate change. TWAIL aims to normatively analyze contemporary international law and its colonial-imperial undertones to contextualize the exploitation of Third World countries.
Based on this analysis, there is a fair possibility that peremptory climate norms may act against the interests of the Third World. This possibility raises some imminent questions that require the attention of the TWAIL scholarship in the coming years.
Peremptory Norms in International Law: A TWAIL Reading
A peremptory norm or jus cogens is an overriding principle of international law that constitutes the ideals of international public policy and the “rules of international morality.” Jus cogens was codified in the Law of Treaties (Article 53) and in the Law of State Responsibility (Article 26), meaning no treaty can violate these basic norms and that the violation of peremptory norms is a wrongful act. Jus cogens can be seen as an instrument along the lines of the UN Charter and the Nuremberg Principles, introduced to give a new basis to the post-WWII international legal system.
Some scholars have also associated jus cogens with international constitutional law and human rights law. There is a vast literature characterizing jus cogens as a tool to enforce international human rights law where the conventional and the customary laws fail to intervene. Most importantly, though, it was seen as a tool for Third World countries to combat the colonial structure of international law and the imperialist forces nourished by it.
However, jus cogens is yet to uphold its potential as an anti-colonial weapon. Except for the right of self-determination, jus cogens consists of negative obligations that only concern formal equality. In formal equality, where all sovereigns are considered equal, international law takes a neutral shape but overlooks the underlying racial stratifications. As a result, peremptory norms risk being ineffective in addressing the structural disparities and the substantive inequalities punctuating international law. Moreover, Western skepticism towards jus cogens has limited the volition of the International Court of Justice (ICJ) in employing it as a window to protect Third World interests.
Peremptory Norms in Climate Responsibility: Need for Caution
In 2023, a study commissioned by the European Parliament titled “The Normative Status of Climate Change Obligations under International Law” posited that a few climate law norms may qualify as general international law norms, giving rise to what they termed the “general international climate law.” More significant to the current discussion, the study also recognized the potential emergence of peremptory norms within GICL. The study identifies the possibility of the due diligence principle being considered a peremptory norm. Due diligence refers to countries’ duty to take reasonable steps in good faith to contribute towards achieving climate goals.
As mentioned before, during the formative years of the concept of jus cogens, Third World countries approached the concept through the ideals of decolonization and “anti-imperialist universalism,” only to be disappointed later. Nevertheless, the potential of peremptory climate norms to effect change holds great promise for the Global South. The most pertinent case is the emergence of the principle of “common but differentiated responsibilities and respective capabilities” (CBDR-RC) as a peremptory norm. This principle recognizes the asymmetric responsibilities and capabilities of different States and seeks to conceive climate responsibility in terms of equity and fair moral desert.
Despite the significance of the CBDR-RC principle, developed nations have obstructed its effective implementation. For instance, deviating from the principle, the United States went on to impose binding obligations on Argentina, while it was failing to meet its own targets. Previously, the United States has pushed to undermine the principle’s legal status under Article 3(1) of UNFCCC and frame it as an assistive tool for interpretation, thus preventing the principle from being included in the customary international law. Today, the CBDR-RC needs to be rejuvenated and redefined to affirm its position as an overriding principle. Hence, the possibility of raising it to the status of a GICL norm and further as a peremptory climate norm appears promising.
However, there is a possibility of the dominant nations resisting the establishment of the CBDR-RC principle as a peremptory norm. For example, the dominant countries can readily point to the lack of consensus regarding the principle. The nature and substance of the principle are highly contested: while some argue that the differentiated responsibility is rooted in economic development, others posit that it is based on the contribution to environmental degradation (Rajamani, see page 420). They can also point to the looming gaps associated with peremptory climate norms, which include challenges in assigning responsibility between developed and developing nations and the practical difficulty of fixing the historical responsibility of the developed nations. Further, Western skeptics often reference the principle as a “free ride” for the poor nations, which can impede people’s perception of CBDR-RC and its emergence as a peremptory climate norm.
Above all, from a conceptual angle, the application of jus cogens in GICL is problematic because peremptory norms are considered and applied only in times of crises, and not otherwise. Jus cogens has primarily come to be associated with humanitarian crises, often overlooking crucial economic and social rights. This is known as the “crisis temporality” of jus cogens. The way jus cogens focuses on crises and overlooks current actions that could lead to future crises does not sit well with climate law. That is, climate law is designed to ensure compliance with a set of elementary obligations that together help in alleviating climate change. This is distinct from jus cogens, which springs into action only at times of crisis (and not mere violations of certain duties). To overcome this gap, the violation of peremptory climate norms would have to be determined based on a country’s current performance of due diligence obligations and not based on the consequence of that country’s act(s) in the long run. The ITLOS also acknowledged this point in its advisory opinion. (¶441(3)(c)).
Nevertheless, defining the violation of peremptory norms based on due diligence is worrisome for Third World countries. Here, one must draw a faint yet pertinent analogy with humanitarian interventions. Western nations have defined what human rights are and which situation warrants intervention. These interventions have enabled Western nations to maintain their control over postcolonial States (Anghie, see page 749). Similarly, when these dominant countries decide what constitutes due diligence, they decide what constitutes derogation from peremptory climate norms. Therefore, the rise of peremptory climate norms may only worsen the power imbalance in the climate change battle.
Conclusion
Today, it is difficult to predict when and in what context peremptory climate norms will emerge. However, Third World countries at the harsh end of this climate change combat must be cautious. Jus cogens’ failure to act as an anti-colonial tool of general international law and its subsequent usurpation by dominant countries to entrench colonial power distribution must not be repeated in the case of climate law.
Ultimately, this article does not call for an iron wall against the emergence of peremptory climate norms. Instead, it invites TWAIL scholars to address two critical questions:
How can the Third World resist the dominant powers from usurping peremptory climate norms?
How can the Third World leverage the same peremptory climate norms to highlight the asymmetric responsibilities and capabilities of countries in combating climate change?
These questions align well within the TWAIL framework and have broad implications for streamlining the TWAIL scholarship in climate law in the years to come.
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