The International Court of Justice (ICJ) held a series of hearings over December 2–13, receiving oral submissions from on obligations under international law to reduce greenhouse gas emissions. This will inform the ICJ's advisory opinion, expected later this year.
An advisory opinion is a clarification and interpretation of international law issued by the ICJ, which is non-binding. But advisory opinions can clarify legal responsibilities towards binding laws, such as the 2015 Paris Agreement on climate change.
The two asked of the ICJ were: countries’ obligations under international law to “ensure the protection of the climate system and other parts of the environment” from human-caused greenhouse gas emissions for other countries and “present and future generations”; and the legal consequences for countries that have “caused significant harm to the climate system and other parts of the environment”, with respect to climate-vulnerable countries and “present and future generations affected by the adverse effects of climate change”.
In other words, the ICJ will determine if countries are obliged under international law to reduce emissions, and what the legal consequences are if they fail to do so.
Climate justice
If the ICJ delivers a favourable advisory opinion, it could open the door to climate-related lawsuits against governments, as well as human rights cases against corporations and countries violating the principles of climate justice.
Climate activists from the world’s most climate-vulnerable regions have spearheaded the demand for climate justice to be considered under international law.
Law students from the University of the South Pacific in Vanuatu first to seek an advisory opinion from the ICJ in 2019. After forming the group , they appealed to Pacific Island countries to take it up, which Vanuatu accepted.
In March 2023, 132 countries co-sponsored a successful at the United Nations General Assembly to request the advisory opinion from the ICJ. The resulting case is the , with 97 countries and 11 organisations participating in the hearings.
Vanuatu has played a key role in climate advocacy for Pacific Island countries, many of which are by the worsening climate crisis. It was the first country to sign the , which seeks to be a binding agreement to stop fossil fuel production and implement a just transition to renewable energy.
The low-lying Pacific Island country is one of the most climate-vulnerable countries in the world, particularly threatened by worsening sea level rise and tropical cyclones.
Vanuatu and the Melanesian Spearhead Group (MSG) by highlighting the existential threat that the climate crisis poses to the Pacific Islands and humanity. They underscored that the injustice of the climate crisis is inseparable from colonial histories, and made the link between the right to self-determination, intergenerational inequity and the climate crisis.
They argued that countries’ legal obligations in relation to the climate crisis go beyond the UN Framework Convention on Climate Change and the Paris Agreement, and urged the ICJ to consider the full spectrum of international law.
Chile, the Philippines, Cameroon, Colombia and Bolivia demanded that the judges apply human rights, including the principle of intergenerational equity, in their decision regarding legal responsibility for climate change.
Senegal, Seychelles, Samoa, The Gambia, Slovenia and Sri Lanka asserted the human right to a clean, healthy and sustainable environment, and that the corresponding obligations should extend beyond borders.
Sierra Leone, the Cook Islands, the Marshall Islands and the Solomon Islands — some of the most climate-vulnerable countries in the world — highlighted how climate change threatens their sovereignty and right to self-determination, which is burdened by colonial legacies.
Jamaica, the Maldives, Papua New Guinea and the African Union presented legal arguments for comprehensive climate reparations based on historical and current responsibility for causing climate change.
Pollutors push back
Predictably, the minority of polluting countries, most responsible for causing climate change, were those most strongly opposed to a more rigorous international legal framework for climate action.
Australia, Saudi Arabia and Germany opposed the addition of any more climate change obligations under international law, arguing that the Paris Agreement is sufficient.
Germany and Britain opposed the proposition that under international law there is a right to a clean, healthy and sustainable environment and that countries are responsible for climate-related harms outside their territories. Britain argued that historical emissions, or any legal frameworks beyond the Paris Agreement, should not be considered in determining climate responsibility.
The United States and Nordic countries (Denmark, Finland, Iceland, Norway and Sweden) outright dismissed the application of human rights law to climate mitigation, as well as the principle of prevention of “transboundary harm”.
Following the hearing, Ida Idling, spokesperson for youth-led climate group — which is currently suing the Swedish government for failing to act on the climate crisis — said: “The Nordic countries, who got rich thanks to their extractive and polluting activities, failed to recognise their substantial responsibility for causing the climate crisis.”
Movement
Protesters outside the ICJ in The Hague during the hearings to demand that it uphold climate justice and that human rights prevail over the interests of a minority of countries.
Following the dismal outcomes of the latest United Nations climate change conference in November, where rich countries refused demands for meaningful climate finance, climate-vulnerable countries are seeking further avenues for attaining justice under international law.
While a favourable ICJ advisory opinion, followed by rulings that compel climate action, would be a positive step towards climate justice, countries are not actually obligated to abide by them. For example, Israel has the ICJ’s supposedly legally binding order in January last year that it take “provisional measures” to prevent genocide in Gaza and to the besieged population.
This highlights the limitations of legalistic avenues seeking climate justice, particularly at an international level where there exists little enforceability. While a strong ICJ ruling that countries are legally obliged to take climate action should be supported, what’s really needed is a mass climate movement, spearheaded by those living in the most climate-vulnerable situations and supported in solidarity by people in the Global North.