The ICJ Speaks: Climate Justice is Not to be Ignored
- International Lawyers Project
- 4 hours ago
- 6 min read
By Anna Foulks, Legal Fellow
On 23 July, The International Court of Justice (ICJ) released an advisory opinion on the obligations of States in respect of climate change. This unanimous judgment had the international human rights legal community waiting with bated breath after a multi-year campaign in the United Nations General Assembly. The campaign was led by Vanuatu and other disproportionately climate-vulnerable countries acting through Pacific Island Students Fighting Climate Change, a youth-led organisation founded by 27 Pacific Islands students in 2019. The campaign prompted the Court to opine on the scope and extent of States’ obligations where human rights are violated as a result of the mounting climate crisis. Most profoundly, the Court engaged with the obligations of non-state actors such as large multinational corporations, and the obligations of States not currently a party to the Paris Agreement.
While not binding authority, this morally and legally weighty decision can now serve as persuasive guidance that governments should build into domestic regulatory frameworks and also acts as an accountability measure - both for state parties to relevant international treaties and also for non-state actors who can in some ways be more culpable for the mounting effects of climate change. The following analysis briefly outlines the most relevant information for the International Lawyers Project’s partners to keep in mind as our legal pro bono work—spanning legal research and advice, capacity-building and strategic litigation—continues to make strides on issues of environmental justice.
Key Legal and Practical Considerations on Climate Justice
Simply put, this advisory opinion confirms that States have legal and actionable
obligations to regulate practices that exacerbate the effects of climate change, whether flowing from treaty obligations or customary international law - and therefore these also apply to States that have not ratified treaties designed to secure climate justice. These obligations, as discussed below, stem from the human right to a clean, healthy, and sustainable environment. As a resounding call to action for climate advocacy, the forceful language in this landmark advisory opinion will likely have implications for the growing number of climate litigation cases seeking to hold governments and corporations accountable.
Nationally Determined Contributions
The ICJ clarified a variety of scope and clarificatory questions, including compliance standards with which States can be assessed. For example, the ICJ cracked down on the first page of a defendant’s playbook: the argument that climate change treaties do not apply to them and/or are not enforceable. In opening arguments, some higher-emitting States argued that the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement do not impose enforceable mitigation obligations, but rather discretionary and non-binding ones. Rejecting this argument, the Court interpreted Article 4(3) of the Paris Agreement in the most appropriate light, taking into consideration the treaty’s object and purpose. The Court held that nationally determined contributions (NDCs) must reflect a ‘progression’ (para. 241), and ‘highest possible ambition,’ (para. 242), a definitive standard that can be enforced against non-compliant States. In the relevant legal terms, this standard of due diligence is ‘stringent,’ or uncompromising, but simultaneously takes into account the relative positionality of States in terms of their capacities - based on the amount of greenhouse gases (GHG) they have omitted historically and how much mitigation they can undertake as a result of their state of development. Since countries are expected to submit new ‘first-rate’ climate targets in September before COP30, the reiterated obligation to submit state reports presents an empirical test that can clearly demonstrate States’ commitment to climate mitigation and the international community.
Right to a Healthy Environment as essential to the enjoyment of other rights
The ICJ affirmed the right to a healthy environment as a sort of ‘gatekeeper’ for other human rights - that is, that the duty to uphold the right to a healthy environment necessarily extends to the protection of rights that falls under it. By connecting the right to a healthy environment to so many other rights, the Court extended liability and obligation to other rights that States are already committed to under international human rights law. For example, the UN Committee on the Rights of the Child in General Comment 26 (2023) asserted a connection from the right to a healthy environment to a right to the highest attainable standard of health, an adequate standard of living, and the right to education. This is a manifestation of key climate justice cases over the last several years, such as Leghari v. Pakistan, Urgenda v. State of the Netherlands, and Future Generations v. Ministry of the Environment and Others. The principle of intergenerational equity states that “due regard for the interests of future generations and the long-term implications of conduct are equitable considerations that need to be taken into account where States contemplate, decide on and implement policies and measures in fulfilment of their obligations under the relevant treaties and customary international law.” (para 157). The recognition of the right to a clean and healthy environment in domestic frameworks in over one hundred States (para. 391) affirms its importance and the ruling can support pending cases where the right to a healthy environment is being relied upon, as seen in Álvarez et al. v. Perú.
Corporate Accountability
This opinion incited a heightened level of obligation for States to regulate corporate and private sector activities, such as fossil fuel emissions, that contribute to climate change and that fall under their jurisdictions—which is a particularly impactful responsibility for developed nations. The opinion stated that a state breaching its climate obligations ‘may give rise to the entire panoply of legal consequences provided for under the law of State responsibility’ (para. 445), and that ‘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 licenses or the provision of fossil fuel subsidies - may constitute an internationally wrongful act which is attributable to that state’ (para. 427).
The opinion also clarified some conflict that currently arises - and will no doubt continue to arise - regarding specific domestic law conflicting with the general law in the form of treaty obligations. This is currently at stake at the Dutch Supreme Court in the Milieudefensie et al. v. Royal Dutch Shell case. The ICJ’s approach made it much harder for a company like Shell to argue that its climate obligations are purely a matter of national regulation or political choice. Furthermore, the ICJ spared no expense in providing that States are required ‘to employ all means at their disposal to reduce their GHG emissions’ (para. 448), not only endowing them with enormous responsibility but perhaps enhanced regulatory power that may ideally either deem corporate pushback irrelevant or introduce new steps towards increased recognition that corporations should be held to the same standards as States. Whichever route is taken, ILP’s work on just transition and guiding corporate practices towards green initiatives will be more vital than ever, given the likelihood that corporations will face new pressures and sanctions from the international community that will prompt shifts in methodology and prioritisation.
Strategic Implications for ILP and its Partners
The ICJ’s advisory opinion is a targeted and deliberate call to action and prioritisation given the imminent threats that climate change poses to human rights. The lengthy and thorough support the opinion gives for imposing a stringent due diligence standard on states paves the way for reparations and climate-focused legislation. Vishal Prasad, one of the law students that lobbied for the case to come to the ICJ, said: “This advisory opinion is a tool for climate justice. And boy, has the ICJ given us a strong tool to carry on the fight for climate justice.” This is a profound moment for impassioned climate advocates to wield the ICJ’s language. It is clear that the law is only expanding in response to this profoundly intergenerational issue. At ILP, many of our partners are located in the Global South and are disproportionately impacted by the effects of climate change, experiencing human rights violations, loss of livelihood, land insecurity and dispossession of land – such as the Lovongai in Papua New Guinea. We support our partners by empowering them, helping to ensure their voices are heard and enabling them to hold actors accountable for the violation of their human rights and environmental harms. From domestic courts to international fora, we will ensure that climate justice is not an ignored ideal but rather an enforceable reality. It’s all hands-on deck - and ILP is ready.