The International Court of Justice (ICJ) today released its unanimous advisory opinion on obligations of States in respect of climate change (the Advisory Opinion). The Advisory Opinion, delivered by Judge Yuji Iwasawa and non-binding, determined that States may face legal consequences under international law for failing to meet their obligations to address climate change and protect the environment. This bulletin briefly summarizes background information, key findings of the Advisory Opinion, and highlights from separate opinions of ICJ judges delivered alongside the Advisory Opinion.
Background. On 29 March 2023, the General Assembly of the United Nations adopted a resolution requesting the ICJ to give an advisory opinion on the following questions:
- (a) What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases (GHG) for States and for present and future generations?
- (b) What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:
- (i) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?
- (ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?
Key findings. Key findings of the Advisory Opinion in response to question (a) include:
- International climate change treaties, including the United Nations Framework Convention of Climate Change (UNFCCC), Kyoto Protocol (KP) and the Paris Agreement (PA), set forth binding obligations for States parties to ensure the protection of the climate system and other parts of the environment from anthropogenic GHG emissions.
- Customary international law sets forth obligations for States to ensure the protection of the climate system and other parts of the environment from anthropogenic GHG emissions.
- States parties to the Vienna Convention for the Protection of the Ozone Layer and to the Montreal Protocol on Substances that Deplete the Ozone Layer and the Kigali Amendment, the Convention on Biological Diversity and the United Nations Convention to Combat Desertification have obligations to ensure the protection of the climate system and other parts of the environment from anthropogenic GHG emissions.
- States parties to the United Nations Convention on the Law of the Sea have an obligation to adopt measures to protect and preserve the marine environment, including from the adverse effects of climate change and to co-operate in good faith.
- States have obligations under international human rights law to respect and ensure the effective enjoyment of human rights by taking necessary measures to protect the climate system and other parts of the environment.
- States are responsible for the actions of corporations and organizations under their jurisdiction and/or control.
In response to question (b), the ICJ determined that a breach by a State of any obligations identified in the ICJ’s response to question (a) constitutes “an internationally wrongful act entailing the responsibility of that State”. The ICJ indicated that the legal consequences resulting from the commission of an internationally wrongful act in breach of a State’s obligations in respect of climate change may “give rise to the entire panoply of legal consequences provided for under the law of State responsibility”, including:
- the duty to perform their obligations despite their breaches;
- requiring the cessation of the wrongful actions or omissions, if they are continuing;
- providing assurances and guarantees of non-repetition of wrongful actions or omissions, if circumstances so require; and
- full reparation to injured States in the form of restitution, compensation and satisfaction, provided that the general conditions of the law of State responsibility are met, including that a sufficiently direct and certain causal nexus can be shown between the wrongful act and injury.
Separate opinions. Several judges of the ICJ provided separate opinions to the unanimous Advisory Opinion. Most judges suggested that the Advisory Opinion did not go far enough in clearly articulating the responsibility of developed countries for their historical and current GHG emissions and the harm to the climate system and other parts of the environment. Key findings from the separate opinions include:
- Vice-President Sebutinde highlighted that the Advisory Opinion: (i) lacked answers regarding the legal implications of climate change for present and future generations, as well as for least developed and small island States; (ii) took an overly cautious approach to the effects of sea level rise on statehood and the right to self-determination; and (iii) the principle of common but differentiated responsibilities (CBDR) and respective capabilities was not fully explored.
- Judge Xue argued that the CBDR principle establishes new obligations and “lays down the foundation of international co-operation in combating global warming”, noting that major commitments of States parties set forth in treaties such as the UNFCCC, KP and PA, are “differentiated on account of their level of development and national capabilities”, and this must inform the interpretation of treaties and State obligations and responsibilities.
- Judge Yusuf noted that the ICJ should have clarified the legal consequences of the failure of gross GHG-emitting States to take appropriate actions to save the planet and that the Advisory Opinion failed to take into account the legal consequences of injuries arising out of conduct not prohibited by international law.
- Judge Charlesworth emphasized the impacts on climate vulnerable groups such as Indigenous Peoples, women, children and people with disability and that States have a particular obligation to protect the human rights of these climate vulnerable groups on the basis of equality and non-discrimination.
- Judge Aurescu suggested that the Advisory Opinion failed to engage in a deeper analysis and reach a more nuanced and comprehensive legal finding on the issues of: (i) sea-level rise and the entitlements of States affected by sea-level rise to their current maritime zones as well as of their continued statehood, even if submerged; and (ii) the determination that the right to a clean, healthy and sustainable environment has become a norm under customary international law.
The ICJ noted the proceedings for the Advisory Opinion had the highest level of participation in the history of the ICJ, including 153 written comments or statements, and oral statements from 96 countries and 11 international organizations.
The Advisory Opinion follows last year’s advisory opinion from the International Tribunal for the Law of the Sea, which found that GHG emissions are a form of marine pollution and that States have an obligation to protect the marine environment from climate change impacts and ocean acidification.
For further information or to discuss the contents of this bulletin, please contact Lisa DeMarco at lisa@resilientllp.com.
