In its advisory opinion issued in July, the International Court of Justice (ICJ) found that states have obligations to act on the climate crisis – and can face legal consequences for breaching them. 

The ruling comes six years after a group of law students from Pacific island states began a campaign to persuade the region’s leaders to take the issue of the climate crisis and human rights to the ICJ. The resulting push from Small Island States, spearheaded by Vanuatu, prompted the UN General Assembly in 2023 to call on the ICJ to issue an advisory opinion to clarify two legal issues: the obligations of states under international law to combat the climate emergency, and the legal consequences of failing to meet or breaching these obligations.

‘This is the start of a new era of climate accountability at a global level,’ says Danilo Garrido, legal counsel at NGO Greenpeace International. ‘The ICJ advisory opinion marks a turning point for climate justice, as it has clarified, once and for all, the international climate obligations of States, and most importantly, the consequences for breaches of these obligations.’ Garrido believes the ruling will open the door for new cases, and ‘hopefully bring justice to those, who despite having contributed the least to climate change, are already suffering its most severe consequences.’

Jessica Palairet, Executive Director at Lawyers for Climate Action NZ (LCANZ), highlights the significance of the ICJ’s statement that all countries have obligations to reduce emissions and pursue climate policies that are aligned with a goal of stabilising the global average temperature increase to 1.5 degrees Celsius above pre-industrial levels. 

The Court also clarified that these obligations are ‘rooted in international law’, she adds. ‘It’s now going to be up to domestic courts, domestic litigators like us to really put that judgment into practice,’ Palairet says. The ruling further confirmed that the climate crisis is a human rights issue, and that states have to do more to reduce emissions under international human rights law, she adds. 

‘The legal responsibility doesn’t only encompass greenhouse gas emissions, but also the conduct that leads to those emissions, [such as] continuing to produce fossil fuels, [or] subsidies that lead to an increase in fossil fuel production,’ says Bjorn-Oliver Magsig, a senior law lecturer at Victoria University and an LCANZ board member. ‘That’s a step which, for me, was a very nice surprise, that the ICJ engaged with that and said clearly that those steps by states potentially are a violation of international law.’

However, even with this opinion, Magsig says it ‘remains tricky’ to force compliance with international law. Instead, it is more likely that the ICJ opinion will have a greater impact on domestic cases. ‘We won’t see an explosion of ICJ cases on climate change,’ he believes.  

Internationally though, the impact will probably be felt in the political arena – especially for states that benefit from a rules-based order, he says. ‘If we start eroding the system in areas we think we can get away with, then other states will do the same,’ Magsig says. ‘How can we call out violations of human rights around the world if we violate human rights at home with our climate policies?’ He adds that ‘international law only works with political pressure.’

Reynaers – who’s also a partner at MV Kini in Mumbai – says that some countries may be wary of filing suits against each other, lest they ‘boomerang’ back and flag their own shortcomings. Pacific Island nations ‘will not have the same hesitation’, she adds. ‘I would imagine we would see developments or possibly cases filed by some of those countries.’

The ICJ’s opinion may also embolden NGOs and individuals to pursue litigation related to the impacts of the climate crisis – especially given that advances in science and the wealth of historical data mean such changes can be monitored and demonstrated. 

The ICJ’s ruling came just a few weeks after the Inter-American Court of Human Rights (IACHR) released its own opinion, following a request from Chile and Colombia. The IACHR opinion also recognised the existence of a human right to a healthy environment and that states have an obligation to act on the climate crisis. 

‘For the first time, the IACHR establishes standards for States regarding the prevention, mitigation and reparation of climate-related harm, and affirms that climate change may constitute a violation of human rights,’ writes Manuel Frávega, an officer of the IBA Environment, Health and Safety Law Committee, in a briefing. 

Similarly to the ICJ, the IACHR also found that states must take steps to curb the climate crisis and refrain from conduct that would lead to setbacks or delay action, including the adoption of regressive measures. ‘This [advisory opinion] is part of the growing phenomenon of climate litigation at the global level and represents a significant precedent in Latin America,’ concludes Frávega, who’s also a partner at Beccar Varela in Buenos Aires.

The author would like to thank the IBA’s Legal Policy & Research Unit for their assistance with this article.

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