International Court of Justice to deliver historic first advisory opinion on the obligations of States in relation to climate change

The International Court of Justice will deliver its historic first advisory opinion on the obligations of States in relation to climate change on Wednesday.

The landmark ruling will be read in a public sitting at the Peace Palace in The Hague, by Judge Iwasawa Yuji, President of the Court.

Pacific Islands Students Fighting For Climate Change says they stand with 96 States and 11 international organisations who helped shape this unprecedented global effort, the largest advisory opinion proceedings in ICJ history.

The advisory opinion will clarify the legal responsibilities of States in addressing the climate crisis, including: the obligation to prevent climate harm; the protection of present and future generations; remedies and reparations for climate-related damage; corporate accountability under international law; and the urgent and equitable phase-out of fossil fuels.

Pacific Islands Students Fighting For Climate Change says this is not just a legal milestone, it’s a potential turning point for climate justice and human rights.

Coming just after the Inter-American Court of Human Rights’ powerful ruling on climate and human rights, the ICJ opinion is expected to confirm that States have binding legal duties grounded in science, equity, and international law.

The group is calling for accountability, a recognition of rights for those most affected by the climate crisis, and real protection from historical polluters.

They say this ruling could help shape the future of negotiations, litigation, and national policies around the world.

The legal questions that will be answered are: what are the obligations of States under international law to protect the climate system and environment from greenhouse gas emissions for the benefit of present and future generations; and what are the legal consequences for States whose actions or inaction have caused significant harm to the climate system especially in relation to vulnerable states (like small island developing states) and affected people and future generations.

15 judges at the International Court of Justice 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 the legal issues relating to 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 in December.

Many developing nations questioned whether the obligations of States should extend beyond the existing UN Framework Convention on Climate Change and the Paris Agreement.

Attorney General for the Republic of Vanuatu, Arnold Kiel Loughman, said some States highlighted in the proceedings that historical polluters continue to hide behind the safety of the climate regime, which limits State responsibility to procedural obligations that avoid any real accountability.

Vishal Prasad, Director of the Pacific Island Students Fighting Climate Change, 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.

Prasad said 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 urged the Court to hold those responsible for the climate crisis accountable and added that the pursuit for climate justice is 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.

In December last year, Fiji presented its submission to the International Court of Justice Advisory Opinion proceedings on the obligation of States with regards to climate change in The Hague. The Fiji delegation was led by the then Attorney General, Graham Leung and supported by Fiji’s Permanent Representative to the United National Office and Other International Organizations in Geneva, Ambassador Luke Daunivalu. Ambassador Daunivalu said this is a crisis of survival.

He stressed it is also a crisis of equity.

Fiji contributes 0.004 per cent of global emissions yet we bear the brunt of climate impacts with marginalized groups - women, children and the poor being disproportionately affected.

Daunivalu emphasised that without rapid, deep and sustained reductions in global emissions, the 1.5 degree Celsius threshold under the Paris Agreement will be exceeded, with catastrophic consequences for the Pacific and the world.

He urged the International Court of Justice to reaffirm the principle of accountability, ensuring that those who have, through their acts and omissions, caused the climate crisis, bear responsibility for halting the crisis and addressing its impacts.

The Ambassador said climate-vulnerable countries look up to the Court for clarity, decisiveness and justice by providing its legal guidance, a legacy of accountability, protection and hope.

Graham Leung also provided the legal arguments and submissions focused on three critical areas - the existential threat of climate change; the legal obligations of the States with respect to climate change; and the legal consequences of failing to uphold those obligations.

Fiji urged the Court to declare that the failure to act on climate change is a violation of international law and affirm that States have a duty to prevent harm, protect human rights, and secure a liveable future for all.