Understanding the ICJ Advisory Opinion on Climate Change

As the International Court of Justice is set to present its long-awaited advisory opinion on climate change on Wednesday, Earth.Org recaps how we got here and what we can expect from the court’s opinion.

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“Young people around the world stepped up, not only as witnesses to injustice, but as architects of change.” Vishal Prasad – Director of the Pacific Island Students Fighting Climate Change.

On July 23, the International Court of Justice (ICJ) will present its long-awaited advisory opinion on the obligations of countries under international law in respect of climate change.

The ruling could have a consequential impact on climate action worldwide, opening up the possibility that international climate commitments can be legally enforced and clarifying countries’ legal obligations around planet-harming emissions and human rights.

Ahead of this important decision, Earth.Org looks at the campaign that brought climate change to the world’s top court, and what we can expect from the court’s opinion.

Road to the ICJ

On March 29, 2023, the UN General Assembly (UNGA) passed a resolution requesting an advisory opinion from the International Court of Justice on the obligations of countries under international law in respect of climate change.

Youth-led grassroot organization Pacific Island Students Fighting Climate Change (PISFCC) has been instrumental in campaigning for the resolution since 2019. Initially led by 27 students from the University of the South Pacific, the campaign aimed at persuading the leaders of the Pacific Islands Forum – an organization of 18 north and south Pacific island countries, including Australia – to take the issue of climate change and human rights to the world’s top court.

In 2020, PISFCC joined forces with youth from Asia, Africa, Latin America, and Europe organized as the World’s Youth for Climate Justice (WYCJ). The young campaigners lobbied with state representatives and amplified the need to pass this request on to regional and global civil society networks.

The Peace Palace in The Hague, Netherlands, which houses the International Court of Justice. Photo: RB Phtoo/Flickr.

The following year, the government of Vanuatu, a small island developing state in the South Pacific Ocean, responded to their calls, announcing it would lead diplomatic efforts to build support for the resolution.

“This is for the world’s most vulnerable, for all of humanity, and our collective future. This is about what we must save, not what has been lost. This is a campaign to build ambition, not division. This is a campaign to uplift the goals of the Paris Agreement. This is the young generations’ call for justice to the world’s highest court,” Vanuatu’s Prime Minister Bob Loughman said at the time. 

The Pacific Islands are at the forefront of climate change, despite being responsible for less than 1% of total global greenhouse gas emissions. In its 2018 report, the Intergovernmental Panel on Climate Change confirmed that unless drastic action is taken globally to reduce greenhouse gas emissions, Pacific Island nations will cease to exist, threatened by a triple whammy of accelerating sea level rise, ocean warming and acidification. 

“Vanuatu and other small island states are among the most affected by climate change, even though they contribute only a fraction to global emissions,” said Ralph Regenvanu, Special Envoy for Climate Change and Environment for Vanuatu. For him, “the lack of progress at UN climate change talks in lowering emissions and slowing down climate change – despite the Paris Agreement – necessitates legal action.”

In August 2022, during a leaders meeting of the Pacific Island Forum, Vanuatu proposed seeking an advisory opinion from the ICJ on the responsibilities of states concerning climate change and human rights. After receiving unanimous endorsement from all of the forum’s 18 member countries, the campaign shifted to New York, where the proposal was presented to the UNGA.

In requesting the opinion, the Assembly acknowledged that “climate change is an unprecedented challenge of civilizational proportions and that the well-being of present and future generations of humankind depends on our immediate and urgent response to it.”

The questions posed to the court cover two key aspects:

1. States’ obligations under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations;
2. The legal consequences States face under these obligations where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment.

Timeline of the International Court of Justice Advisory (ICJ) Advisory Opinion on climate change. Image: Martina Igini/Earth.Org.

Why an Advisory Opinion?

Advisory opinions are legal instruments seeking to clarify specific questions of international law. With the exception of few, rare cases, and contrary to judgements, advisory proceedings are not legally-binding. This means that the requesting organ, agency, or organization is free to decide what to do with them. Despite this, they still carry significant legal weight and moral authority. The advisory opinion on climate change in particular could reshape the landscape of climate responsibility by providing legal clarity on issues such as state obligations, potential liabilities for climate damage, and the rights of present and future generations. 

There are two main reasons why the campaign focused on an advisory opinion, according to PISFCC Director Vishal Prasad.

First, an opinion issues by the ICJ would provide guidance to all countries around the world on what they need to do in order to address climate change. “There was a lot of um passing the buck, exploiting loopholes, delay tactics, delay promises that we saw at the negotiations. And so this way definitively and concretely we have a chance for the ICJ to settle what countries need to do,” Prasad told Climate Court Voices.

Second, the opinion gives the ICJ a chance to clarify not just what climate agreements like the Paris Agreement mandate, but also to look at countries obligations more holistically and across the board. “So far climate action has been guided by the Paris Agreement and the UNFCCC, but via an advisory opinion, uh the ICJ has an opportunity to kind of integrate the different bodies of law that exists,” he explained.

“By seeking the clarification from the world’s highest court, we’re looking for guidance from the court that would be transformational in guiding ambition, accountability and fairness in the global climate response mechanism,” said Vishal Prasad, Director of the Pacific Island Students Fighting Climate Change. He described the ruling as a “historic opportunity to shape the development of international law to work for us.”

Campaigners for the advisory opinion have described it as “the most authoritative and constructive route available for an independent clarification of the legal implications of climate change under international law.”

Earth.Org’s Editor-in-Chief Martina Igini interviews Vishal Prasad, Director of the Pacific Island Students Fighting Climate Change.

Biggest Climate Case in History

Ahead of the hearing, UN member states and international organizations were asked to provide written submissions to the court, presenting their legal arguments and positions on a case or legal issue before the ICJ. A record 91 submissions as well as an unprecedented 62 comments submissions – additional or responsive submissions that engage with specific points raised by other parties – were filed. The vast majority came from climate-vulnerable developing countries including many Small Island Developing States. They include responses to the legal questions and detailed testimonies from people across the Pacific and around the world speaking about the impact climate change is having on their livelihoods and communities, which will shape the court’s advisory opinion.

“These submissions are carrying our stories, experiences, and our hope and aspirations that the ICJ will listen and that the final opinion will be shaped by our voices,” said Prasad, describing the moment as “historic” for Pacific nations.

The ICJ held public oral hearings at the Peace Palace in The Hague last December. The proceedings saw record participation, with 96 states and 11 international organizations presenting arguments before the 15 judges. It was the first time the states like Barbados, Nepal, and the Cook Islands appeared in front of the court.

Nations collectively acknowledged the undeniable impact of climate change driven by human activities. Even oil-rich nations like Saudi Arabia admitted the reality of this threat. However, a stark division emerged between developing and developed countries regarding the obligations and responsibilities for climate mitigation and accountability.

The US, a major historical greenhouse gas emitter, controversially argued against legal mandates to combat the climate crisis, drawing criticism for evading responsibility. Prasad described the US’s statement as a “disheartening attempt to evade its responsibilities as one of the world’s largest polluters, displaying a blatant disregard for the pressing urgency of the climate crisis.”

Other significant fossil fuel economies such as Australia, China, and Saudi Arabia also opposed the legal accountability sought by developing nations.

Discussions also delved into the human rights aspects of climate change, highlighting the disproportionate burdens faced by vulnerable groups like impoverished communities, climate refugees, women, and children. Despite this, the interpretation of existing international human rights frameworks concerning climate action obligations remained a contentious issue at the ICJ, with countries including the UK, Switzerland, Saudi Arabia, the US, and China rejecting claims that human rights treaties inherently impose mandatory climate-related responsibilities.

‘Optimistic’

Despite deep divisions, Prasad remains “optimistic” that the court’s opinion will include the two fundamental concepts underlying their campaign: a recognition that human rights law plays a role in the climate change debate, and that countries must protect future generations’ right to a healthyand clean planet under international law.

“There were also questions around legal consequences, which would be very interesting to see, particularly around existing discussions on loss and damage, climate reparations, etc. The ICJ really has an opportunity to shed light, open the very difficult doors around some of these topics, some of which domestic courts and others climate litigation cases are also dealing with,” the activist told Climate Court Voices.

The ICJ decision two other advisory opinions on climate change issued by international courts, from the International Tribunal for the Law of the Sea (ITLOS) last May and from the Inter-American Court of Human Rights (IACtHR) earlier this month.

Check out our analysis of the ITLOS and IACtHR advisory opinions.

“ICJ opinions have shaped governmental policies and legal strategies in the past, contributing to the essential work of normative development and enforcement. Courts worldwide will look to this ICJ’s climate ruling as persuasive authority, shaping future judgments,” said Joie Chowdhury, Senior Attorney at the Center for International Environmental Law (CIEL), and Sébastien Duyck, CIEL’s Senior Attorney and Human Rights & Climate Campaign Manager.

“The Court’s legal blueprint can also help break through political inertia at the national level, guiding the development of domestic laws and policies.”

Featured image: UN Photo/ICJ-CIJ/Frank van Beek. Courtesy of the ICJ.

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The International Court of Justice will deliver the opinion on Wednesday, July 23. Stay tuned for updates on Earth.Org.