Foreign Legal Policy in Practice: Assessing Global South Narratives in ITLOS Advisory Proceedings on Climate Change

[Paula Wojcikiewicz Almeida holds a PhD summa cum laude in International and European Law at the Université Paris 1 Panthéon-Sorbonne. She is a Professor of International Law at FGV Rio Law and Director of FGV Rio Law’s Centre for Global Law and the Jean Monnet Centre of Excellence on EU-LA Global Challenges.

Valentine Tissot Pinheiro holds an LL.M. in Public International Law from the University of Amsterdam and an LL.B from the Federal University of Rio Grande do Sul. She is a Researcher at FGV Rio Law’s Centre for Global Law.

Vitor Furtado de Melo holds a Master’s in Political Science and an LL.B from the Federal University of the State of Rio de Janeiro. He is a Master’s Degree candidate in Social Anthropology from the National Museum/Federal University of Rio de Janeiro and a Researcher at FGV Rio Law’s Centre for Global Law.]

The recent re-edition of Guy de Lacharrière’s book of 1980 La politique juridique extérieure, with the foreword by François Alabrune, Ambassador of France to the Netherlands, highlights the growing interest in understanding the role and influence of law in international relations and timeless relevance of investigating how states use international law to advance political interests on pressing global issues. Examining this intersection between legal and political dynamics is particularly challenging and requires mixed methodologies. Here, the study of narratives surfaces as a tool to uncover these compelling stories – charged with political and strategic interests – behind the legal argumentation to influence the outcome of a case.

Devising Multiple Storylines: States Increased Participation in ICTs

Subject matters concerning community interests have been increasingly brought before international courts and tribunals in contentious cases (Ukraine v. Russian Federation; Gambia v. Myanmar; South Africa v. Israel) and advisory proceedings (Legal Consequences, Climate Change, Right to Strike), resulting in a growing demand for participation by third states and non-state actors. This indicates that the international community is turning its eyes to ICTs to find a compromise between States’ bilateral goals and community interests’ aspirations.

Given the boost in participation and its influential power, an assessment of the narratives presented to ICTs remains of the utmost importance. This evaluation may be conducted by developing a consistent methodology that explores the process by which a story is told. As jurists often employ narratives to describe the meaning of the law, investigating political factors that might have shaped legal discourses can enhance the study of narratives.

Articulating Political and Legal Discourses: a Case Study on the Narratives by Global South States before the ITLOS 

On 21 May 2024, ITLOS was the first international judicial body to deliver a climate-related advisory opinion. The significant number of participants in these proceedings highlights the growing interest among various actors aiming to influence the Tribunal’s legal interpretation while expressing their views on climate change. A total of 34 States (18 from the Global South: Brazil, China; Congo, Indonesia, Egypt, Chile, Bangladesh, Nauru; Belize, Guatemala, Sierra Leone, Micronesia, Djibouti, Rwanda, Vietnam, India, Mozambique, and Mauritius), 9 International Organizations, and 10 Non-State Actors submitted written statements. Assessing how a story is told by a particular group of states may unveil the process of deliberately creating narratives ‘to persuade audiences with a particular reading of international law’. For Global South states, their history and the roots of climate change intersect as they can be viewed as products of the political process of colonialization and economic development through capitalist expansion. The term ‘colonially-driven environmental change’ illustrates that the legacy of colonialism is tied to the emergence of the term ‘Global South’ and is closely linked to climate change’s differentiated impacts.  

Through their submissions, Global South demonstrated an overreaching approach to the climate issue and its intersection with the law of the sea. This revealed nuances in their narratives, which uncovers different political interests aiming to influence how interpretations should be made. To unfold Global South narratives, the ‘categorical content analysis’ method contributes to the identification of similarities and differences. How legal arguments are chosen and the weight attributed to each of them underscore a particular storyline. Considering that international law and international politics share the same theoretical space, it becomes relevant to examine the trajectory of positionalities within political forums such as the COPs to the UNFCCC to effectively assess these states’ narratives before the ITLOS. 

Through the articulation of political and legal discourses, two main narratives advanced by the Global South states can be perceived. This reflects the growing South-South divide with its disparities in terms of development and vulnerabilities, notably concerning climate urgency.  

Narratives Uncovering Developmental Interests 

When states engage in advisory proceedings, they articulate narratives by framing the issue in a way that aligns with their interests. Multiple narratives are intricately shaped by underlying factors, which embody the dynamics that drive the storyline and can be seen as the ‘hidden cargo of the script’. Indeed, it is relevant to perceive what is the motivation behind and what influences the legal positions of States. 

The results of the categorical analysis showed that some countries emphasize the discussion on principles like CBDR-RC and duties of cooperation and assistance. Brazil, Vietnam, Egypt, and India were the countries to highlight the most about the importance of differentiated responsibilities according to the level of development. Brazil, India, Egypt, and Chile gave much space in their submissions to address the need for financial and technical support from developed countries to meet climate challenges while ensuring their development needs. This choice demonstrates a strategic approach to leveraging the existing legal framework focusing on the economic impact that measures to combat climate change may have on their national economies. 

These emerging economies’ significant contributions to climate change and their increased financial and technological capabilities set them apart from other Global South states. Some of them cited the CBDR-RC also at the COPs, focusing on a political agenda that encompasses demands for fairer economic relations and development opportunities. Egypt (COPs 27 and 28), China (COP 28), and Brazil (COP 28) directly referenced this principle as a key element of International Law. This shows that the narratives advanced at ICTs must be read in conjunction with international politics, as they may emerge from a broader context where political strategies are designed and are at stake. Law may be portrayed as a ‘struggle between different political interests’.

Narratives Uncovering Vulnerabilities

The power of narratives in international law as counter-hegemonic storytelling is seen as a transformative tool through the proposition of other perspectives. Portraying individual experiences related to the climate crisis serves as a means to expose certain geopolitical knowledge that confronts the idea of a unique framing of the issue. Several states have specifically outlined their vulnerabilities in the submissions as a form of composing a narrative behind the legal debate. This reflects that climate change generates uneven existential threats in various regions, with Black individuals and vulnerable communities experiencing it more profoundly. 

The results of the categorical content analysis demonstrated that the most vulnerable states in the Global South have articulated their narratives around human rights concerns by reinforcing a direct impact inflicted on the rights of their population. Despite the singularity of distinct narratives shaped by subjective experiences, Nauru, Micronesia, Mauritius, and Congo were mostly concerned with the human rights implications of climate change and argued for stronger protection under international law.  

The term ‘climate apartheid’ has been used to underscore the differences in the causes and impacts of the climate urgency – where some can use economic power to escape while others are deemed to bear and suffer the consequences. The concept of ´urgency’ contains in itself a vocabulary of timeframe not equally perceived by all actors. Therefore, the rapid response is ultimately felt and required by the ones already suffering the most from the gravity of its consequences. Micronesia, Congo, Egypt, Mauritius, and Rwanda focused their submissions on the issue of state responsibility, emphasizing the obligation to repair damage caused by climate change, even though it was not the scope of the Request. These countries remain one of the most vulnerable countries and tend to prioritize survival and rely on the responsibilities of those contributing mostly to the climate urgency. 

These states have also mobilized international forums to advocate for more equitable and just climate governance. The discourses of Small Island States at the COPs express asymmetries inside the Global South and a stronger vulnerability that affects less developed countries. For instance, Belize at COPs 26, 27, and 28 highlighted its status as a Small Island Developing State, which makes it particularly vulnerable to climate change due to its geographical and economic characteristics. This framing was also emphasised by Nauru and Mauritius at COP 26, and Micronesia at COPs 27 and 28. 

The connection between the positions adopted by these countries at the COPs and at the ITLOS advisory proceedings confirms how international law can provide a ‘louder voice’ to small states. It is precisely through narratives that ‘the perspective of the subaltern, of the colonized State, or to colonialized relationships’ may catch international law´s attention. 

Conclusion

An analysis of the role of international law impacting socioeconomic and political inequities must also consider the growing disparities of interests and values among countries in the Global South. Therefore, the analysis of the submissions to the ITLOS advisory proceedings suggests how the Global South’s different interests were reflected in the states’ narratives. Advancing narratives before ICTs to tell a particular story, charged with political context and interests, may ultimately affect the outcome of decisions. A deeper qualitative analysis could employ semi-structured interviews with lawyers and state representatives to better underline the strategies behind those narratives.