By Robert Andre Emmanuel
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The International Court of Justice (ICJ) has delivered what could be described as one of the most decisive and consequential legal rulings in favour of small island developing countries and environmental activists.
Following pressure from students and a request by Vanuatu, which was later co-sponsored by Antigua and Barbuda, the case came before the UN’s highest judicial body for legal clarity on the obligations of states to address climate change under international law.
The advisory opinion addressed two key questions: clarification on states’ obligations under international law to protect the climate system from greenhouse gas emissions and the legal consequences for states that cause significant harm to the climate system, particularly regarding small island developing states and future generations.
In the Court’s advisory opinion, delivered yesterday by President of the ICJ Judge Yuji Iwasawa, the Court found that states had a “stringent” duty to prevent “significant harm to the climate system” and that states have an obligation under both international treaties and customary international law to protect the climate system from greenhouse gas emissions.
This includes obligations under the United Nations Framework Convention on Climate Change (UNFCCC), the Paris Agreement, and the United Nations Convention on the Law of the Sea (UNCLOS).
Judge Iwasawaemphasized that the Court recognizes that climate change poses “a quintessentially universal risk to all states” requiring “a heightened degree of vigilance and prevention”.
The ruling established that the standard of due diligence for preventing significant harm to the climate system is particularly stringent given the urgent nature of the threat.
The Court determined that parties to the Paris Agreement must “act with due diligence in taking measures” that are “capable of making an adequate contribution to achieving the temperature goal set out in the agreement”.
Additionally, the ICJ found that countries have obligations to prepare and maintain “successive and progressive nationally determined contributions which, when taken together, are capable of achieving the temperature goal of limiting global warming to 1.5 degrees Celsius above preindustrial levels.”
In one of the most eye-catching statements in the ruling, the ICJ said that the continued production, consumption, and provision of fossil fuels subsidies “may constitute an internationally wrongful act which is attributable to that State.”
The Court found that the internationally wrongful act in question is not the emission of greenhouse gases per se, but “the breach of conventional and customary obligations identified… pertaining to the protection of the climate system from significant harm resulting from anthropogenic emissions of such gases.”
While the ICJ’s advisory opinion is not legally binding on states, it represents another significant legal victory for climate advocates following the Inter-American Court of Human Rights’ landmark ruling on July 3.
The regional court declared the climate crisis a human rights emergency, affirming that states have binding obligations under international law to address climate change as a matter of human rights protection.
Prior to the ICJ ruling yesterday, the Alliance of Small Island States (AOSIS) on Tuesday had called the advisory opinion “a milestone after decades of our calls for international accountability for the world’s most vulnerable nations”.
“Ultimately, it is AOSIS’ expectation that the outcome of this advisory opinion will foster enhanced accountability and drive support to address the disproportionate impacts of climate change which our SIDS are forced to endure,” said the body, which lists Antigua and Barbuda as a key member.
Last year, Prime Minister Gaston Browne told the Court and other nations that “this advisory opinion [was] not to point fingers but to clarify the obligations of states under international law before the clock on our survival runs out.”
Meanwhile, the ICJ effectively rejected arguments from more industrialised nations that they should not be held liable for the actions of private actors within their jurisdiction, nor should they be obligated to act when they are not or no longer a party to one, or multiple, of the climate change treaties.
The Court wrote “a State may be responsible where, for example, it has failed to exercise due diligence by not taking the necessary regulatory and legislative measures to limit the quantity of emissions caused by private actors under its jurisdiction.
“The Court observes that while climate change is caused by cumulative [greenhouse gas] emissions, it is scientifically possible to determine each State’s total contribution to global emissions, taking into account both historical and current emissions,” the Court said.
The ICJ President stressed that “what constitutes a wrongful act is not the emissions in and of themselves but actions or omissions causing significant harm to the climate system in breach of a State’s international obligations,” Judge Iwasawa said.
Moreover, the Court also observed that state responsibility extends even when multiple states are involved in the same or similar breach.
However, the Court did find that causation of damage due to climate change—a key principle for seeking reparations could not be “presumed” nor “impossible to establish”.
Rejecting both arguments, the Court said that there must be a two-part test: Firstly, whether this climate event could be linked to human-caused climate change and secondly, to what extent damage caused by climate change can be attributed to a particular State.
Essentially, this means that while climate lawsuits are possible, injured countries will need to use scientific evidence to show climate change caused their damage, prove specific countries breached their climate obligations and demonstrate a clear enough link between those breaches and their specific harm.
In concluding the historic ruling, Judge Iwasawa acknowledged that while the questions represent “more than a legal problem” and concern “an existential problem of planetary proportions that imperils all forms of life,” the Court’s role is to address the legal framework within which this crisis must be confronted.
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