A turning point for climate justice

The International Court of Justice's Groundbreaking Advisory Opinion on Climate Change

The International Court of Justice (ICJ) delivered a historic advisory opinion on July 23, addressing the obligations of states regarding climate change. This decision marks a significant milestone in international environmental law and has been hailed as a major victory for global efforts to combat climate change. The case was initiated by Vanuatu and later supported by 132 countries, leading to a resolution passed by the United Nations General Assembly that referred the matter to the ICJ.

The UN General Assembly posed two key questions to the court: first, what are the obligations of states under international law to protect the climate system and other parts of the environment from human-caused greenhouse gas emissions? Second, what are the legal consequences for states that cause significant harm to the climate system through their actions or omissions?

This advisory opinion is historic for several reasons. It represents the first time the ICJ has directly addressed climate change. The proceedings attracted widespread global attention, with participation from numerous states and international organizations, even those not part of the Paris Agreement. The court’s unanimous decision underscored the gravity of climate change as a threat to humanity. Additionally, the court adopted a comprehensive approach, analyzing various aspects of international law, including customary law, to provide a thorough response.

For Nepal, this advisory opinion is particularly significant. The country’s bureaucratic system, spurred by young lawyers and students, managed to submit a statement after receiving an extension. This allowed Nepal to present its perspective before the ICJ, marking a rare opportunity for the nation to be heard on the global stage.

The ICJ emphasized that all states have obligations under the entire corpus of international law, without limitations to specific areas or sources. Principles such as sustainable development, common but differentiated responsibilities, equity, intergenerational equity, and the precautionary principle guided the interpretation of these obligations.

The court considered various human activities contributing to climate change, including greenhouse gas emissions, and recognized the severe and far-reaching consequences of climate change. It identified three principles of customary international law: the duty to prevent significant environmental harm, the duty to cooperate, and due diligence. These principles were interpreted to create compatible obligations for states.

According to the court, the primary duty of states is to prevent significant harm to the climate system. This duty requires states to act with due diligence, using all available means to avoid activities within their territory that could cause environmental damage. The standard of due diligence is especially stringent given the current climate crisis.

Cooperation is central to the UN Charter and climate change treaties. The court stressed that trust and confidence are essential for international cooperation, governed by the principle of good faith. While states have some discretion in regulating their emissions, this flexibility cannot excuse a lack of cooperation. States must develop and implement collective climate policies based on equitable burden distribution.

The Paris Agreement was analyzed in detail, with the court emphasizing the importance of its temperature goals. States are obligated to prepare, communicate, and maintain nationally determined contributions (NDCs) to achieve these goals. Although NDC content is discretionary, they should reflect progressive ambition.

Human rights law was also considered, with the court noting that a healthy environment is foundational to human life and well-being. Climate change impacts various rights, including health, food, water, and housing. The court emphasized the interdependence between human rights and environmental protection, highlighting the need to secure the right to a clean and sustainable environment.

Regarding the consequences of failing to meet obligations, the court addressed the concept of lex specialis, which suggests that specific laws may override general ones. However, the court found no evidence that climate change treaties intended to exclude general rules on state responsibility. The court also discussed attribution and causation, stating that state actions, such as fossil fuel production and subsidies, can be attributed to the state and may constitute internationally wrongful acts.

The court concluded that failure to prevent significant harm to the climate system is a violation of international law, requiring reparation. This includes cessation, assurance of non-repetition, and full reparation in the form of restitution, compensation, and satisfaction.

In summary, the ICJ's advisory opinion has far-reaching implications. It serves as a moral and legal breakthrough for developing countries affected by climate change. The universal nature of the law interpreted by the ICJ offers future generations the courage to continue the discourse. The decision promotes a new understanding of international law and climate change law, influencing multilateral and bilateral negotiations. States are now called upon to take attribution seriously and implement NDCs at home, or risk facing more litigation. The advisory opinion heralds a new era of climate accountability.