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The International Court of Justice released a historic Advisory Opinion on the Obligations of States in Respect of Climate Change
On 23 July, the International Court of Justice (ICJ) issued its long-awaited Advisory Opinion on the Obligations of States in Respect of Climate Change. This decision of the Court comes after the request from the General Assembly of the United Nations in March of 2023, which was driven by sustained advocacy from a coalition of Pacific Island nations, youth movements, and civil society actors, spearheaded by Vanuatu.
After years of advocacy leading to this decision of the Court, this marks a pivotal moment for the climate justice movement to rely on the clarity of this decision and demand climate action. The Court has made clear that the climate emergency must be met with ambitious, cooperative, and equitable action from all States. For years to come, this decision will be a reliable tool for civil society to compel more decisive action in line with the urgency of the climate emergency.
The request by the General Assembly required the ICJ to provide guidance on: a) the scope of international obligations for the protection of the climate and the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations; and b) the legal consequences under these obligations for States that have caused significant harm to the climate and the environment. The latter concerns states that are especially affected or particularly vulnerable, as well as people and individuals of the present and future generations affected by the effects of climate change.
This Advisory Opinion comes only weeks after the rendering of the Inter-American Court's own Advisory Opinion on the Climate Emergency and Human Rights. It builds upon last year's Advisory Opinion by the International Tribunal on the Law of the Sea. This decision is not only historic for its substance but also for its reach. After months of submissions and pleadings from hundreds of stakeholders, the implications of this decision are far-reaching. In analysing a wide range of sources of international law, the Court gave an Opinion that reaches all States and leaves no room for doubt on the extent of the obligations incumbent upon States.
The first part of the analysis of the Court relates to the available science up to date. The Court is clear in the scientific certainty that human activities, such as burning fossil fuels or destroying carbon reservoirs and sinks, are behind climate change. The Court explicitly states that "it is scientifically established that the increase in concentration of GHGs in the atmosphere is primarily due to human activities." Based on that understanding, the Court is also clear about the gravity of the climate emergency. The consequences of climate change are severe and far-reaching; they affect both natural ecosystems and human populations. These consequences underscore the urgent and existential threat posed by climate change.
The Court then goes on to identify the different legal sources that are the most directly relevant applicable law for the protection of the climate and the environment from anthropogenic emissions of greenhouse gases. The Court indicates that human rights treaties are among the most directly relevant applicable law, climate treaties, such as the UNFCCC and the Paris Agreement, and customary international rules. In its analysis, the Court identifies the customary duties to prevent significant harm to the environment and cooperate to protect the environment among the most directly relevant applicable law. This is particularly significant since, as the Court explains, customary obligations are the same for all States and exist independently regardless of whether a State is a party to the climate change treaties. In other words, even those States that have failed to ratify treaties to escape climate responsibility are still bound to act under customary international law. Moreover, the Court also reached a very significant finding that the different instruments and rules considered the most directly relevant applicable law must be understood together and interpreted to give rise to a single set of compatible obligations. The Court rejected the lex specialis argument, which implied that climate treaties prevail over other rules of international law, such as those established in human rights treaties. The Court understood that no such pre-eminence or exclusion applied since it could find any actual inconsistency between the provisions of the climate change treaties and other rules and principles of international law.
Related to obligations under the Paris Agreement, the Court made a crucial determination regarding the temperature targets. While the Agreement originally established "well below 2°C" as a primary goal with 1.5°C as an additional target, the Court found that subsequent COP decisions have elevated the 1.5°C threshold to the agreed primary temperature goal. The Court explicitly noted that "1.5°C has become the scientifically based consensus target under the Paris Agreement". This interpretation confirms that the Paris Agreement should be read as requiring States to align their mitigation efforts with limiting global warming to 1.5°C based on the best available science.
The Court's analysis of customary international law examined the customary duty to cooperate to protect the environment. In reviewing this duty, the Court emphasised that "cooperation between States is the very foundation of meaningful international efforts with respect to climate change." The Court's recognition of this duty underscores that climate change, as a global challenge, requires coordinated international responses. Moreover, the analysis of this customary obligation is paramount since it applies to all States regardless of their participation in specific climate treaties.
Related to climate finance, particularly regarding the obligations of developed states under the Paris Agreement, the Court provided much clarity with its interpretation. While acknowledging that the Agreement does not specify exact amounts, the Court determined that financial obligations must be interpreted in light of the collective temperature goals, particularly the 1.5°C target. The Court indicated that parties have to implement their climate finance obligations in a manner and at a level that allows for the achievement of the objectives listed in Article 2. This interpretation establishes that climate finance must be "capable of achieving the objectives of the UNFCCC" and should reflect both developed states' capacity to pay and developing states' needs for adaptation and transition.
The Court's analysis on the implications of human rights law gave particular attention to how climate change disproportionately affects specific groups. The Court acknowledged that "climate change may impair the enjoyment of the rights of women, children and indigenous peoples". It noted scientific findings that these groups "may be more severely affected by the impacts of climate change." Based on the work of the Committee on the Elimination of Discrimination against Women, the Court emphasised that mitigation and adaptation measures must be designed according to human rights principles of "substantive equality and non-discrimination, participation and empowerment, accountability and access to justice, transparency and the rule of law." This finding establishes that States' climate obligations must ensure that climate responses protect and prioritise the rights of those most vulnerable to climate impacts.
Despite the opinion's comprehensive nature, the Court declined to fully clarify the extraterritorial scope of human rights obligations in the context of the climate emergency. This cautious approach represents a missed opportunity to provide more explicit guidance on when States can be held responsible for climate-related human rights violations beyond their borders. However, by leaving this question open, the Court left the door open for future cases to develop this crucial question.
You can watch the Reading of the Advisory Opinion of the Court here.
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