In its unanimous advisory opinion the ICJ, the principal judicial organ of the United Nations, ruled that countries have an obligation to protect the environment from greenhouse gas emissions and to act with due diligence and co-operation to fulfill this obligation. (Wikimedia Commons)
Climate change is an existential problem of “planetary proportions” that affects all forms of life and the very health of the planet, according to a recent landmark ruling of the International Court of Justice (ICJ) on the obligations of states.
In its unanimous advisory opinion the ICJ, the principal judicial organ of the United Nations, ruled that countries have an obligation to protect the environment from greenhouse gas emissions and to act with due diligence and co-operation to fulfill this obligation. This includes the obligation under the Paris Agreement to limit global warming to 1.5°C above pre-industrial levels.
The court ruled that if states breach these obligations, they incur legal responsibility and may be required to cease the wrongful conduct, offer guarantees of non-repetition and make full reparation, depending on the circumstances. To justify this decision, it used the commitments of member states to environmental and human rights treaties including the Kyoto Protocol, the Paris Agreement, the ozone layer treaties and the Biodiversity Convention.
The court, which was of the view that “a clean, healthy and sustainable environment is a precondition for the enjoyment of many human rights”, said the full enjoyment of human rights “cannot be ensured without the protection of the climate system and other parts of the environment”.
To guarantee the effective enjoyment of human rights, countries must take measures to protect the climate system and other parts of the environment.
“These measures may include, inter alia, taking mitigation and adaptation measures, with due account given to the protection of human rights, the adoption of standards and legislation, and the regulation of the activities of private actors.”
International human rights law, climate change treaties and other relevant environmental treaties, as well as the relevant obligations under customary international law, inform each other.
“States must therefore take their obligations under international human rights law into account when implementing their obligations under the climate change treaties and other relevant environmental treaties and under customary international law, just as they must take their obligations under the climate change treaties and other relevant environmental treaties and under customary international law into account when implementing their human rights obligations,” the ICJ said.
It found that the failure of a state to take appropriate action to protect the climate system from greenhouse gas 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 case was the largest ever seen by the ICJ, with the proceedings unprecedented in scale. There were 91 written statements filed by states and a further 62 comments submitted by states, international organisations and civil society groups. A record 97 states participated in the oral proceedings, which were held in the Hague in December.
The consequences of climate change are “severe and far-reaching”, affecting both natural ecosystems and human populations, the court said. Rising temperatures are causing the melting of ice sheets and glaciers, leading to sea level rise and threatening coastal communities with unprecedented flooding.
“Extreme weather events, such as hurricanes, droughts and heatwaves, are becoming more frequent and intense, devastating agriculture, displacing populations and exacerbating water shortages,” it said.
“Furthermore, the disruption of natural habitats is pushing certain species toward extinction and leading to irreversible loss of biodiversity. Human life and health are also at risk, with an increased incidence of heat-related illnesses and the spread of climate-related diseases. These consequences underscore the urgent and existential threat posed by climate change.”
In September 2021, the Pacific Island state of Vanuatu announced that it would seek an advisory opinion from the ICJ on climate change. This move was inspired by youth group Pacific Island Students Fighting Climate Change, whose six-year campaign highlighted the need to act to address climate change, particularly in small island states, on the frontlines of climate change.
After Vanuatu lobbied other UN member states to support this initiative in the General Assembly, on 29 March 2023, it adopted a resolution requesting an advisory opinion from the court.
Two fundamental questions were posed before the court. What are states’ obligations under international law to address climate change for present and future generations? What are the legal consequences under these obligations for states failing to do so?
Noting that these advisory proceedings were “unlike any that have previously come before the court”, the ICJ said the questions posed by the General Assembly represented more than a legal problem.
“They concern an existential problem of planetary proportions that imperils all forms of life and the very health of our planet,” the court said. “International law, whose authority has been invoked by the General Assembly, has an important but ultimately limited role in resolving this problem.”
A complete solution to “this daunting, and self-inflicted, problem” requires the contribution of all fields of human knowledge, whether law, science, economics or any other.
The ICJ emphasised that solving the climate crisis extends beyond law — collective human will and wisdom are vital “at the individual, social and political levels”. This involves “changing our habits, comforts and current way of life in order to secure a future for ourselves and those who are yet to come”.
While the court’s advisory opinions are non-binding, they carry significant legal and moral authority, and help clarify and develop international law by defining the legal obligations of states.
The ICJ’s opinion provides new avenues for litigation, advocacy, and international pressure, especially for vulnerable countries and communities harmed by major emitting states, said Nomasango Masiye-Moyo, the co-ordinator of Natural Justice’s environmental lawyers collective.
For Africa, the statements by the ICJ on reparations mean that vulnerable citizens can seek remedy for “ecological destruction, illegal eviction, dead crops and disappearing marine and animal life”, Masiye-Moyo said.
While reparations have long been considered customary international law, the court’s statements “sketch a judicially acknowledged pathway for compensation, rehabilitation and restitution”.
“We hope that the court’s findings will embolden many African communities and lawyers around the continent, to fiercely seek accountability and justice for harms done in their communities, historically and in the future.”