World Court Delivers Landmark Opinion On Climate Justice, Confirming Countries Have Legal Duty To Act On The Climate Emergency
The International Court of Justice – the world’s highest court and the principal judicial body of the United Nations – has issued a landmark and potentially game-changing advisory opinion on countries’ obligations under international law to address the climate crisis. The opinion confirms that climate action is a legal duty and that countries can be held liable for acts or omissions that contribute to significant climate harm such as licensing of fossil fuel exploration or continued fossil fuel expansion and production.
“Today’s been a landmark milestone for climate action, the discourse on climate change, and it’s a very important course correction,” Ralph Regenvanu, climate change and environment minister for the Republic of Vanuatu, said in a press briefing on Wednesday outside the court, located in The Hague, Netherlands. Vanuatu led the charge for UN member states to request an advisory opinion from the court, via a UN General Assembly resolution submitted to the court in 2023 that posed two overarching questions – what are the obligations of states under international law to ensure protection of the climate system from anthropogenic greenhouse gas emissions, and what are the legal consequences for states, through their acts or omissions, that have caused significant climate harm?
The court answered those questions in its highly anticipated advisory opinion issued on Wednesday, July 23. In terms of the scope of states’ obligations, the court ruled that duties to protect the climate system arise under a broad array of international laws, including but not limited to the three major UN climate change treaties – the UN Framework Convention on Climate Change, the Kyoto Protocol, and the Paris Agreement. Other sources of international law such as customary international law, human rights law, and the UN Convention on the Law of the Sea also apply in determining states’ duties to act on climate change, the court found. General obligations under these treaties and law include duties to mitigate greenhouse gas emissions, adapt to adverse climate impacts, and to cooperate in order to prevent irreversible climate catastrophe.
In clarifying the mitigation obligation, the court relied upon what it called the best available science, represented primarily by the reports of the Intergovernmental Panel on Climate Change. The IPCC has warned that serious risks and harmful impacts of climate change escalate with every additional increment of warming, and that even the 1.5 degrees Celsius target for limiting global temperature rise should not be considered a safe threshold. Under the Paris Agreement, countries pledged to take action to limit warming to well below 2 degrees Celsius and to strive to not exceed the 1.5-degree target. The court said that countries therefore have the obligation to work towards limiting global temperatures to that 1.5-degree mark, which is rapidly slipping away. Parties to the Paris Agreement must also ensure that their climate pledges, called nationally determined contributions, are implemented and that collectively they will allow for the achievement of the 1.5-degree objective, the court said. Yet under current climate pledges and policies, global temperatures are projected to rise to well beyond 2 degrees Celsius above preindustrial levels.
Effectively regulating the activities of private actors, such as polluting corporations, is also a requirement of governments under international law, the court determined. Failing to take “necessary regulatory and legislative measures” to curb emissions from private actors may give rise to responsibility or liability, according to the court’s opinion.
Government support of continued fossil fuel activities may also constitute wrongful acts that breach obligations under international law, the court suggested. “Failure of the state to take appropriate action to protect the climate system from GHG emissions including through fossil fuel production, fossil fuel consumption, the granting of fossil fuel exploration licenses or the provision of fossil fuel subsidies may constitute an internationally wrongful act which is attributable to that state,” Judge Iwasawa Yuji, president of the ICJ, stated in a reading of the court’s opinion on Wednesday.
The opinion on what legal consequences should apply when countries have acted unlawfully on climate was kept general and high-level, but it did confirm that countries could be held accountable under the customary international law rule of state responsibility. Some high-emitting countries such as the US had argued during the hearings held in December that the climate change treaties like the Paris Agreement precluded imposing any legal liability on countries for climate change harms. The court also rejected the argument that the causal chain of climate change damages is too tenuous to assign responsibility to any state or group of states.
In terms of remedies that states must provide when they have committed wrongful acts in the context of climate protection, the court said these may include cessation of the unlawful conduct as well as restitution or, when necessary, compensation.
Climate justice advocates welcomed the court’s opinion as a historic turning point that could help usher in a new era of climate accountability.
“The court said in no uncertain terms that climate impunity is no longer allowed, and those who have caused the greatest harm are required to provide remedy to those most affected by climate change,” Vishal Prasad, campaign director of Pacific Islands Students Fighting Climate Change – the group that spearheaded the initiative to seek an ICJ climate advisory opinion – said during Wednesday’s press briefing. “It sets the foundation for a transformational shift.”
“This momentous ruling by the world’s highest court doesn’t just mark a turning point in international law, but a point of no return on the path toward climate justice and accountability,” said Nikki Reisch, director of the climate and energy program at the Center for International Environmental Law. “The message is clear: there is no carve-out for climate destruction under international law, and there is no legal or technical bar to holding states responsible for resulting harm. The repercussions of this ruling will be felt around the world…It will serve as a crucial reference for courts facing a rising tide of climate litigation, for communities facing rising temperatures and seas, and for policymakers facing rising calls to make polluters pay.”
Regenvanu said he expects the court’s opinion will inspire a raft of new climate accountability lawsuits. “Today’s ruling I’m sure will also inspire new cases,” he told reporters.
Joana Setzer, associate professorial research fellow at the London School of Economics’ Grantham Institute, said the opinion “marks a turning point for climate litigation worldwide.”
“Its authoritative interpretation of countries’ legal obligations will serve as a crucial tool for domestic courts, litigants, and advocates striving to hold governments accountable,” she said.
Implementation and enforcement of the court’s opinion, however, may prove to be challenging since advisory opinions are themselves non-binding. High polluting countries such as the US may choose to reject or simply ignore the opinion. The US under the Trump administration has pulled out of the Paris Agreement and is shunning international cooperation to act on the climate crisis, while domestically it is dismantling climate and environmental policies and regulations and unleashing even more fossil fuel production and consumption.
“It’s extremely unlikely that a US court would feel bound by [the court’s opinion],” said Robert Percival, professor of environmental law at the University of Maryland.
But according to Regenvanu, the court made it clear that major polluters like the US are violating international law, and these polluters should not be able to evade accountability forever.
“Even as fossil fuel expansion continues under the US’s influence, along with the loss of climate finance and technology transfer, and the lack of climate ambition following the US’s withdrawal from the Paris Agreement, major polluters—past and present—cannot continue to act with impunity and treat developing countries as sacrifice zones to further feed corporate greed,” he said.
As a next step, Regenvanu said that Vanuatu will advocate for adoption of a UN General Assembly resolution to support implementation of the opinion. “The implementation of this decision will set a new status-quo and the structural change required to give our current and future generations hope for a healthy planet and sustainable future,” he said.
