ICJ finds nations have legal duty to act on climate
International Court of Justice at the Hague finds all nations have legal obligations, both under specific treaties and under customary international law to take action to prevent climate disruption.
The International Court of Justice has issued an Advisory Opinion finding that nations are obligated to act to reduce climate-related risk for their people and for other nations, and to foster climate-resilient development as a priority. The finding does not mandate action, but it will inform judgments in courts throughout the world, which could result in governments and major polluters being held liable for inaction to reduce pollution.
In 2023, more than 190 nations joined a resolution of the United Nations General Assembly, requesting the ICJ issue this Advisory Opinion. The request was near universal, because all nations are incurring climate-related costs, seeing serious harm to landscapes, infrastructure, human health, and their everyday economies. Governments are increasingly seeing calls from affected citizens and stakeholder groups for legal liability for industrial polluters and for governments and other institutions that fund and derive revenues from industrial-scale pollution.
The GA resolution was the result of a years-long campaign by vulnerable small island states, who face the risk of total disappearance in coming decades, due to rising seas caused by industrial climate pollution. The nearly 200 nations asked the Court to answer two core questions:
What obligations do countries have under international law to safeguard climate stability from the effects of greenhouse gas emissions?
What are the legal consequences for countries that harm the climate system, and by extension, the available enforcement mechanisms?
Speaking during a public hearing to read and deliver the opinion, Judge Yuji Iwasawa said:
“Greenhouse gas emissions are unequivocally caused by human activities which are not territorially limited.”
This clearly stated core finding means the Court recognizes that industrial climate disruption is a preventable harm that moves across borders, meaning countries can harm each other and might be violating specific legal obligations by doing so.
The Court also found that human-caused interference with Earth’s climate system is an “urgent and existential threat”. This means nations have an implicit responsibility to protect their people and to work with other nations to protect the community of nations from this threat. More specific legal obligations may follow from foundational interntaional law and relevant Conventions and treaties.
In an important finding, the Court notes:
“Obligations exist for states outside of the U.N. Framework Convention on Climate Change, under customary international law. The customary duty … reinforces the treaty-based obligations under the Paris Agreement.”
The Court recognizes that states are free to select the form of their action to prevent industrial climate disruption, but this does not give states the option to treate climate change as not requiring a coordinated, evidence-based response.
The Court views international law as placing “stringent obligations on states to protect the climate system and other parts of the environment from anthropogenic GHG.”
The Court cited two elements to the legal obligations of states:
The environmental harm to be prevented;
Due diligence as a required standard of conduct.
For these reasons, it is necessary for states to conduct risk assessment, using the best available science, as part of their due diligence and harm prevention responsibilities. In other words, there is an implicit legal requirement for states to consider, maintain, improve, and utilize Earth observation science—to properly judge risk and not act from allegiance to specific commercial interests.
The Court stated that “It is the sum of all activities that contribute to anthropogenic climate change over time”, a finding which reinforces the need for international cooperation and coordination. This is a further legal responsibility, based both on treaty obligations and customary international law.
Clarifying the scope of customary international law, the Court finds:
“Customary obligations are the same for all states and exist independently of whether a state is a party to the climate convention.”
In examining connections to established international law on the protection of human rights, the Court finds:
“The protection of the environment is a precondition for the enjoyment of human rights.”
The obligation to protect human rights against adverse effects of climate change extends to the obligation to provide asylum to people who cannot safely return to their place of origin. This is a clear indication of a need for reform of international cooperative agreements around migration and refugee status.
Importantly, and of particular interest to the small island nation of Vanuatu, which initiated the United Nations General Assembly resolution that led to this opinion of the ICJ, the Court states, in paragraph 363, that:
once a State is established, the disappearance of one of its constituent elements would not necessarily entail the loss of its statehood.
Both individual human beings and whole nations enjoy fundamental protections against undue harm and disappearance. This creates a legal imperative for nations to begin to address what kind of legal arrangements must be made for nations that are made uninhabitable by sea level rise or other extreme destabilizing effects of climate disruption.
According to the Court, states have climate-related legal responsibilities not only under the U.N. Framework Convention on Climate Change, the Paris Agreement, and customary international law, but also under the Ozone Layer Treaty, the Montreal Protocol, the Convention on Biological Diversity, and the Convention on Desertification, and other treaties.
The Court also specifically finds that anthropogenic global heating emissions constitute pollution of the marine environment, in line with the U.N. Convention on the Law of the Sea (UNCLOS).
Article 192 of UNCLOS requires states to take action to prevent degradation of the marine environment, including the effects of climate pollution.
Article 194 of UNCLOS also requires states to take all appropriate action to reduce and eliminate pollution of the marine environment.
In examining the legal obligations of states and mechanisms for redress, the Court finds all states have an implicit and binding legal responsibility to regulate the activities of private-sector actors, to reduce climate disruption. Paragraph 427 of the ICJ opinion included this historic legal finding:
Failure of a 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 licences or the provision of fossil fuel subsidies — may constitute an internationally wrongful act which is attributable to that State.
The Court notes that the legally wrongful act is "not the emission of GHGs per se", but rather breaching the legal responsibility to prevent dangerous disruption of the climate system by industrial emissions of global heating compounds. If no action is taken to reduce that threat, then the emissions would have to be curtailed or eliminated, and legal and financial liability should ensue.
In our reporting around the recent mid-year United Nations Climate Change negotiations, we noted that geophysical impacts and political instability are accelerating; banks could be drivers of climate-resilient prosperity, operating through the everyday economy; bold climate cooperation is already possible now, but nations need to use the tools they have and act with urgency.
Our report after the negotiations found “climate rescue is possible, but progress is dangerously slow”, and cited seven areas where there is an urgent need for coordinated progress ahead of annual negotiations in Brazil:
Robust, open and inclusive sharing of technology, including data-related technologies, platforms, and climate service-related business model innovation;
Multidimensional cooperative climate action in line with Article 6.8 of the Paris Agreement, with the broadest possible benefit to climate-resilient development in all regions;
Practical guidance for local, regional, and national action toward Adaptation indicators, plans, insight-sharing, and actions;
Climate banking innovation supporting local intermediary services and innovative solutions for affordable insurance and disaster response;
Leveraging food systems as a connective fabric of everyday economics that can benefit people and nature;
Valuing conservation and ecosystem restoration, as an achievement that builds value for everyone;
Creative engagement strategies that allow for localized cooperative economic development, supported by stakeholder input, and working toward all Paris goals, on the basis of the best available science.
The ICJ opinion provides a way for countries to judge each other’s responsibilities and level of good-faith cooperation. It could also lead to groups of countries working together to create enforcement mechanisms.
Reuters is reporting:
“Late last year, in the most recent "Emissions Gap Report," which takes stock of countries' promises to tackle climate change compared with what is needed, the U.N. said that current climate policies will result in global warming of more than 3 C (5.4 F) above pre-industrial levels by 2100.
As campaigners seek to hold companies and governments to account, climate‑related litigation has intensified, with nearly 3,000 cases filed across almost 60 countries, according to June figures from London's Grantham Research Institute on Climate Change and the Environment.”
At this reporting, the International Court of Justice hearing is ongoing. The Advisory Opinion details specific areas of legal responsibility in terms of due diligence that binds states to support technical and practical capability of their economies and their international cooperative arrangements to reduce climate risk and improve chances of climate-resilient development.
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