SEI statement on the opinion of the International Court of Justice
Last week, the International Court of Justice (ICJ, The Court) ruled on a case originally brought by the , on the broad responsibilities of national governments to address the real and growing impacts of climate change. As Professor of International Law Tim Stephens clearly states, "this is the most significant judgment of the International Court of Justice on environmental questions in the Court’s history. The Court drew on the best available science, characterised climate change as an ‘urgent and existential threat’, and offered a comprehensive assessment of the applicable legal obligations on States to address climate change."
In short, the ICJ ruled that climate change impacts are severe and countries are responsible for protecting the rights of both people and environments from its impacts. There is now a clear legal judgment laying out the variety of responsibilities and obligations governments have to ensure climate justice. While the Advisory Opinion is not binding, Stephens points out, “the legal obligations which it identifies certainly are, and the Court’s decision is likely to carry substantial consequences for future proceedings in both international and domestic courts.”
There are three crucial points we see as central to the decision, and some further implications:
First, The Court found that States are under a stringent duty of due diligence to prevent significant harm to the climate system, and must adopt emissions targets consistent with the global goal of holding global heating to 1.5C.
One of the significant points of international law that was clarified, Stephens notes, is that these obligations do not come solely from climate treaties, such as the UNFCCC, Kyoto Protocol and Paris Agreement. Rather, the Court ruled that a range of other areas of international law remained relevant to state responsibilities in response to climate change, including the UN Charter, the UN Convention on the Law of the Sea, the Biodiversity and Desertification Conventions, international human rights law and customary international law. The legal requirement to address climate change, then, is not simply limited to responsibilities under the Paris Agreement, but rather to the broad range of international laws and agreements that govern global relationships and practices.
Second, and crucially, the Court also concluded that the right to a clean, healthy and sustainable environment is both essential for the enjoyment of other human rights, and is part of international human rights law.
As SEI Director Professor David Schlosberg reflects, “what this means, in other words, is what advocates of environmental and climate justice have been arguing for decades: that climate change is a violation of the basic human rights of life, health, and subsistence.” While the international diplomacy focus has long been on emissions reduction via the UNFCCC, there has been little attention given to the ways that such emissions already violate a number of international laws and agreements, including human rights agreements. The Court lays out the relevance of such approaches, and state obligations to address them in the midst of climate change.
The specific identification of impacts to health as an obligation of states to address also aligns with the longstanding calls of communities and health advocates. As Associate Professor of Public Health Ying Zhang shares, "The ICJ’s Advisory Opinion not only addresses social and system injustices but also has significant implications in protecting human health from climate risks. The extraction, production, and combustion of fossil fuels, including coal, oil, and gas, pose significant and multifaceted threats to human health. Burning fossil fuels is the leading source of air pollution, contributing to approximately . Climate-related hazards through increased food and water insecurity, the spread of infectious diseases, the rise of non-communicable diseases, forced displacement, and growing mental health challenges."
The ICJ’s Advisory Opinion not only addresses social and system injustices but also has significant implications in protecting human health from climate risks.
These intersecting risks deepen health inequities, disproportionately affecting communities that are already marginalised and made vulnerable.
Taking the obligation to prevent climate change as seriously as the ICJ insists would generate both immediate and long-term health co-benefits while helping to protect the fundamental rights to life, health, and a clean, safe, and sustainable environment.
The third crucial and significant finding is that the court clearly laid out that States have obligations to regulate the activities of private actors that impact climate change, sustainability, and human rights.
The ruling confirms governmental responsibility for private companies within their jurisdiction that are contributing to climate change, and considers the legal consequences if States fail to meet their obligations to address the issue. The Court clearly stated that the “[f]ailure of a State to take appropriate action to protect the climate system from greenhouse gas 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.”
As Professor and Deputy Director of SEI Danielle Celermajer notes, critically, the Court attributes responsibility not only to countries with high domestic emissions, but also to those like Australia, that export (and hence benefit economically from) the huge amounts of fossil fuels burned elsewhere. Professor Stephens adds that “while causation is complex, the Court accepts that the responsibility of states for climate harm may still be possible to establish.”
What are the broader implications of the decision, especially here in Australia?
Australia argued before the ICJ that only the Paris Agreement - not other bodies of international law - can address climate change. The government argued that the harms of climate change could not be blamed on individual states. Australia also insisted that global agreements on human rights do not apply to climate change.
The Court’s decision rebuffs the Australian position on all of these key issues. Further, The Court has made clear that Australia, along with other fossil fuel producers, has an obligation to limit the damage domestic companies are doing to the global climate – and may face litigation from any nation impacted by the country’s immense and polluting fossil fuel exports.
Australia can no longer proclaim innocence based on claims about the small proportion of global emissions represented by our domestic emissions, while continuing to produce and export the coal and gas that is destroying our neighbours’ lives, and increasingly our own.
Professor of Global Governance Susan Park suggests that the “ICJ’s advisory opinion is putting states like Australia on notice to actually meet their commitments to reducing carbon emissions while we still have time to limit climate change’s impact.” Ultimately, the decision illustrates that Australia’s current set of policies in response to climate change - which amounts to a slow renewable energy transition for Australia while continuing to enable, support, and increase the export of fossil fuels globally - is legally untenable.
More broadly, as Celermajer notes, “The ICJ decision recognises the irrefutable empirical truth that we live on a single planet, with one climate system. The Court has recognised obligations along the whole fossil fuel lifecycle and its impacts to climate, environmental, and human systems - from taking measures to prevent climate harms, to adopting regulatory mechanisms to achieve deep, rapid and sustained reductions in emissions, to reigning in the impacts of the fossil fuel industry, to reparations for damages caused.”
The ICJ opinion also recognises the incontrovertible moral truth that nations producing emissions bear responsibility for the devastating impacts of the climate change that those emissions are causing, especially to those who are most vulnerable to its effects. It provides a crucial legal and moral mandate for nations to phase out fossil fuels, not only to meet global climate commitments, but also as a vital sustainability, human rights, and public health intervention.
This piece was written by SEI members: Prof David Schlosberg, Prof Danielle Celermajer, Prof Susan Park, Prof Tim Stephens, Assoc Prof Ying Zhang
Header image: Romaine W on Shutterstock