Small Island States take landmark case to the ICJ

Ruth GreenMonday 3 February 2025

In December, 15 judges at the International Court of Justice (ICJ) heard more than 100 oral arguments in perhaps the most significant international legal case on the climate crisis to date. 

The landmark case follows years of lobbying by Small Island States, spearheaded by Vanuatu. This 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

These are the largest proceedings ever handled by the ICJ, with 91 written statements filed by states and a further 62 comments submitted by states, international organisations and civil society groups. A record 97 states and 11 organisations participated in the oral proceedings held in The Hague from 2–13 December. 

Many developing nations questioned whether the obligations of states should extend beyond the existing UN Framework Convention on Climate Change (UNFCCC) and the Paris Agreement. ‘As pointed out by some states in the proceedings, historical polluters continue to hide behind the safety of the climate regime, which limits state responsibility to procedural obligations that avoid any real accountability’, said Arnold Kiel Loughman, Attorney General for the Republic of Vanuatu, in his address to the Court.

Vishal Prasad, Director of the Pacific Island Students Fighting Climate Change (PISFCC), the youth group that sought the advisory opinion, told the Court that the Paris Agreement and UNFCCC ‘do not exist in isolation’ but ‘alongside a wide range of treaty and customary international law obligations’. These obligations include the ‘duty to prevent significant transboundary harm, the right to self-determination and the human rights of present and future generations’, he said, urging the Court to hold ‘those responsible for the climate crisis accountable’ and adding that the pursuit for climate justice was incomplete without the requisite legal consequences.

Several countries – including Germany, Saudi Arabia and the US – argued they had no further obligations beyond the treaty regime. Prince Jalawi Turki al Saud, speaking to the Court on behalf of the Saudi government, said further obligations or consequences ‘would risk undermining the integrity of [the treaty] regime’.

Margaret Taylor, then Legal Adviser for the US Department of State, told the ICJ that the current framework ‘embodies the clearest, most specific, and the most current expression of states’ consent to be bound by international law in respect of climate change’.

However, David Waskow, Director of the International Climate Initiative at the World Resources Institute in Washington, DC, believes the worsening nature of the climate crisis could necessitate an overhaul of the current framework. ‘I don’t know that the Paris Agreement covers the terrain adequately and so having the ICJ case really shines a light on where we stand and what the dimensions of the crisis are’, he says.

Taylor urged the Court ‘to ensure that its opinion preserves and promotes the centrality of this regime’. She also ventured whether the ICJ was the most appropriate forum to address climate justice and reparations. 

The ICJ isn’t the only international court grappling with high stakes advisory opinions relating to the climate crisis. In May the International Tribunal for the Law of the Sea issued an advisory opinion clarifying that greenhouse gas emissions absorbed by oceans constitute marine pollution and said states must take ‘all necessary measures’ to reduce emissions and protect the sea.

In early 2023, Chile and Colombia presented a joint request for an advisory opinion to the Inter-American Court of Human Rights (IACtHR) to clarify the effects of climate change on human rights.

The two countries have also stressed the need for regional standards to accelerate action across Latin America. This is particularly pertinent ahead of COP30, which will take place in Belém, Brazil, in November. 

Commentators believe the IACtHR will now be eagerly awaiting the ICJ’s advisory opinion, which is expected to be issued later in 2025. The need for the Court’s advisory opinion is particularly pressing in the wake of continued examples of wildfires and mass flooding around the world. Earlier in January, scientists and meteorologists confirmed that 2024 was the first full calendar year to register a global mean temperature of more than 1.5 Celsius above the pre-industrial average.

Although the ICJ proceedings were driven by countries in the Global South, they have also drawn attention to the devastating impact of the climate emergency on Indigenous communities more globally. ‘Around the world, climate change disproportionately endangers both the territorial and cultural integrity of Indigenous communities’, says Kevin O’Callaghan, Member of the IBA Business Human Rights Committee Advisory Board. ‘Canadians are particularly alive to this issue because of how climate change threatens our Arctic communities and their traditional ways of life.’ 

O’Callaghan, who’s Leader of the Indigenous Legal Matters group at Fasken Martineau DuMoulin in Vancouver, believes having so many collective Indigenous voices highlighting the plight of their communities and rights under legal obligations such as the UN Declaration on the Rights of Indigenous Peoples will only serve to help shape future international law and governance on these issues. ‘By referencing international agreements that acknowledge the unique position of Indigenous communities facing climate change, these nations are providing the ICJ with important language that may help inform their advisory opinion, and ultimately the formulation of international law’, he says. 

Although ICJ advisory opinions aren’t binding, they can carry considerable moral weight. ‘The movement that was started by the students of the Pacific and taken on by governments has reached a point where it’s getting so much attention by the highest court’, says Harjeet Singh, Global Engagement Director at the Fossil Fuel Non-Proliferation Treaty Initiative, based in New Delhi. ‘That is important not only to set the tone and fix the responsibility of countries and corporations who are responsible for the crisis, but to also provide a moral imperative that should be used by society.’

Singh hopes the advisory opinion will also mobilise citizens to put pressure on both ‘perpetrators of the climate crisis’ and policymakers who are in a position to act. ‘The advisory opinion from the ICJ is […] definitely going to set the framework for hard laws in many countries’, he says.

Thank you to Emily Morison, a member of the IBA’s Legal Policy & Research Unit, for her assistance with this article.
 

auc/AdobeStock.com

The fall of Assad: an uncertain future for Syrian refugees

Alice Johnson, IBA Multimedia Journalist

Refugees in the Atmeh Refugee Camp, 2013. John Wreford/AdobeStock.com

After more than a decade of conflict, Syria remains the world’s biggest refugee crisis. Since 2011 more than six million Syrians have been forced to flee the country in search of safety and over seven million remain internally displaced. The stunning fall of Bashar al-Assad’s brutal regime has led many Syrians to finally envision returning home. According to UN estimates, more than 125,000 refugees have already returned to Syria in the hope of building a better future.

‘The fall of the Assad regime presents an unprecedented opportunity for Syrian refugees who fled Syria owing to political persecution to voluntarily repatriate to Syria,’ says John Balouziyeh, an officer of the IBA’s Human Rights Law Committee. 

The future of Syria remains uncertain, however. The collapse of the Assad regime in December, after insurgents swept the capital, has created great potential for the crisis to come to an end. Nevertheless, anxieties remain over whether the new leadership, rebel group Hayat Tahrir al-Sham (HTS), will be able to unite Syria and improve the lives of its people.

Major concerns exist for Syrians over the conditions they will find upon return. After 14 years of civil war, poverty and unemployment are widespread, with 70 per cent of the population in need of humanitarian assistance and 90 per cent living below the poverty line. Basic needs such as shelter, food, water and medicine are not guaranteed, and the threat of ongoing violence persists.

‘From the surveys we have done of Syrian refugees, we think the vast majority of them would like to return to Syria once the conditions are ready,’ says William Spindler, a spokesperson for the UN Refugee Agency. ‘Many of them are still waiting to see how things develop, and some are apprehensive’.

Spindler says that, despite the potential for Syria to become safe for repatriation, the UN Refugee Agency is cautioning countries hosting refugees to be patient and refrain from pressuring them to go back. ‘We need to create conditions inside the country so that refugees can return voluntarily, safely and with dignity and also make sure that it is sustainable because we don’t want people to return only to be displaced again,’ he says.

In response to the fall of the Assad regime many European countries decided to halt processing asylum claims from Syrians. Germany, France, Sweden and the UK are among those that paused applications while the Austrian government has indicated it will soon deport refugees back to the country.

The suspension of asylum applications raises various legal and humanitarian issues. Under the 1951 Refugee Convention, refugees may not be forcibly returned to territories where their life or freedom is in danger. There is, however, a cessation clause that allows countries to cease the refugee status of individuals when the conditions for protection no longer exist, or a refugee decides to voluntarily re-avail themselves of the protection of their country.

David Cantor, a professor at the University of London and director of the Refugee Law Initiative, says Syrians may run the risk of engaging those provisions if they show an intention to resettle or seek a passport from the Syrian government, although those actions should not be determinative of the issue. ‘There may be a range of grounds on which Syrians have received international protection in other countries – some might relate to persecution by the Assad regime. The likelihood is governments will be thinking fairly hard about cessation for those refugees. For refugees who fled more broadly from situations of conflict in Syria there’s more questions about that,’ he says.

Cantor believes that while it would be premature for governments to cease refugee status generally for Syrians now, he understands why they might be hesitant about processing asylum applications given the uncertainty about Syria. ‘I would have thought that at the moment the sensible thing is, because there’s so much flux, to hold off and see where things go in the next couple weeks, unless the basis of the claim reflects deeper underlying factors,’ he says.

The new regime under HTS says it will respect international law and protect the rights of all Syrians, including minorities. The new leader, Ahmed Al-Shar’a (Abu Muhammad Al-Julani) has stated that he does not intend to move Syria towards Taliban-style rule and supports women’s rights and education. The UN, US, EU and UK lists HTS as a terrorist organisation, because of its roots as an offshoot of al-Qaeda, which it broke away from in 2016.

In Europe and elsewhere, the mass arrivals of Syrians in 2015 triggered a political crisis and is considered a major factor in the rise of populist anti-migrant movements around the world. Alex Stojicevic, Secretary for the IBA’s Immigration and Nationality Law Committee, says the West’s increasingly hardline approach to immigration is likely to make it harder and much more dangerous, for refugees including Syrians, to claim asylum in the future. ‘The net cost will probably be more fraud in terms of identity documentation, people paying more to get themselves smuggled into countries,’ he says. ‘It also means there’s going to be more deaths’.