(Brussels) – The International Court of Justice (ICJ) should ignore the self-serving arguments of wealthy, high greenhouse gas-emitting countries and issue an authoritative opinion requiring countries to reduce their emissions, compensate for damages, and provide financial and technical assistance to poorer, less developed countries, Climate Rights International said today. The ICJ held hearings in The Hague from December 2-13 to address the obligations of countries to prevent and mitigate climate harms under international law, and to determine the legal consequences for breaching their obligations.
As the Climate Envoy for the Republic of Vanuatu, Ralph Regenvanu, told the Court in his opening address: “The importance of the questions before this Court cannot be overstated. At issue in this case is the legality under the entire corpus of international law of a certain conduct, displayed by specific States over time, which has interfered with the climate system to a point that has already caused significant harm to Vanuatu and that threatens the survival of my people and of humanity as a whole. The outcome of these proceedings will reverberate across generations, determining the fate of nations like mine and the future of our planet.”
“Given the stakes for humanity, it was shocking, but sadly not surprising, to watch the world’s biggest emitters and polluters make convoluted arguments to evade their responsibility for climate change and the damage they have caused,” said Lotte Leicht, Advocacy Director at Climate Rights International. “The arguments of the United States, China, Russia, Germany, India, the Gulf states, and others were particularly tone-deaf in front of countries already facing existential and deadly impacts from human-induced climate change. The ICJ should issue an opinion that will hold polluters accountable, uphold the right to a clean, healthy and sustainable environment, and create a path to substantially lower greenhouse gas emissions.”
The ICJ hearings were held at the request of the UN General Assembly, which adopted a consensus resolution in March 2023 requesting the court to provide an advisory opinion. More than 100 countries and organizations appeared over the course of the hearings. The case was spearheaded by Pacific Islands Students who, under the rallying cry “we are taking the world’s biggest problem to the world’s highest court,” inspired Vanuatu and other states to successfully push through the General Assembly resolution.
The hearings exposed deep divisions between high-emitting countries and those most vulnerable to the impacts of climate change. Major fossil fuel emitting countries, which also included Australia, Canada, and the United Kingdom, sought to narrowly define or evade their legal obligations to address climate change and the harms caused. They argued that the only obligations on countries to mitigate greenhouse gas emissions are found in the United National Framework Convention on Climate Change (UNFCCC) and the Paris Agreement, under which states set their own emissions targets. This would mean that high-emitting countries would have no legally binding obligation to prevent or mitigate harms from their emissions, including harms outside their borders, and no obligation to stop causing harm, ensure non-repetition, or provide reparations or compensation for harms and damages.
Canada went so far to argue that the right to life established in international treaties doesn’t protect against threats to life from climate change. Australia contested the applicability of customary international law, asserting that the principle of preventing transboundary harm does not apply to climate change.
However, the majority of countries appearing before the ICJ argued strongly that the full range of international law, including human rights, the right to self-determination, and the obligation to prevent significant harm to the environment, including transboundary harm, creates legally binding obligations that are applicable to climate change. This, in turn, provides a legal basis for accountability for both their actions and their failure to act.
National, regional, and international courts are increasingly ruling that states have obligations related to climate change. An April 2024 European Court of Human Rights (ECtHR) ruling in favor of the Swiss organization KlimaSeniorinnen established an important precedent by accepting that international human rights treaties are applicable to climate change. Both the ECtHR and a May 2024 International Tribunal for the Law of the Sea (ITLOS) advisory opinion rejected claims that climate obligations are limited to those set forth in the climate treaties.
“Some of the arguments made by high-emitting countries were frankly ridiculous,” said Leicht. “It is absurd to claim that, among others, the right to life does not require states to protect against the detrimental impacts of climate change.”
A key part of the proceedings was the growing recognition of the right to a clean, healthy, and sustainable environment. The majority of those appearing before the court took the position that this right is an enforceable part of customary international law that imposes obligations on countries to act. The right was recognized in a 2023 resolution by the UN General Assembly endorsed by all but eight countries. It is also recognized in the Constitutions or legislation of more than three-quarters of the members of the United Nations.
Some states emphasized the obligation to act on scientific evidence by rapidly phasing out fossil fuel extraction, halting the licensing of new fossil fuel projects, and ending all subsidies to the industry most responsible for greenhouse gas emissions and human-induced climate change. Burkina Faso and Cameroon highlighted the responsibility of states to criminalize grave harms to the natural environment.
Cameroon urged the ICJ to recognize the concept of ecocide. This call was particularly significant as it echoed other discussions in The Hague, where States Parties to the International Criminal Court (ICC) were meeting for their annual assembly, and a formal proposal has been tabled to amend the ICC’s Rome Statute to include ecocide as a fifth international crime, alongside war crimes, crimes against humanity, genocide, and the crime of aggression.
As one of the final organizations to intervene, the Commission of Small Island States on Climate Change and International Law emphasized the devastating and existential impact of climate change on Small Island States: “As the waves wash away the graves of our ancestors, we sit and wait and wonder what our future will bring, hoping for our future generations.” They reminded the world that history will judge our actions and declared, “We won’t be silent in the face of a situation we are least responsible for.”
The ICJ’s opinion is expected in 2025. While an advisory opinion is not binding, it will carry significant legal and political weight, including in future climate litigation and during international climate negotiations.
“The ICJ has a historic opportunity to provide authoritative clarification of states’ legal, including transboundary, obligations for both their actions and failure to act, advance climate justice, and protect current and future generations,” said Leicht. “The future of billions of people and the planet hangs in the balance.
