ICJ advisory opinion on climate change

On 29 March 2023, the UN General Assembly requested the International Court of Justice (ICJ) to provide an Advisory Opinion on States' obligations regarding climate change. The ICJ has now, for the first time in history, the mandate to clarify the legal obligations of States with regard to climate change under multiple sources of international law.

An unprecedented number of States and international organizations have participated in the proceedings, with the Court receiving a record 91 initial written submissions and 62 in the subsequent comments phase, when States and international organizations that provided initial input could comment on one another’s written statements. Following the completion of the written phase, the Court held two weeks of oral hearings, from 2 to 13 December 2024, in which a record ninety-six States and eleven international organizations participated.

The hearings raised key legal issues central to climate justice, including but not at all limited to:
- law governing State obligations in relation to climate change;
- equity and the principle of common but differentiated responsibilities and respective capabilities;
- human rights of present and future generations, in particular, the right to self-determination and the right to a clean, healthy, and sustainable environment;
- duty to prevent transboundary harm;
- legal consequences comprising of cessation of climate-destructive conduct guarantees of non-repetition and the provision of full reparation;
- State responsibility for cumulative present and historical emissions;
- the right to remedy and reparations;
- effective regulation of corporate conduct exacerbating the climate crisis;
- the equitable phase out of fossil fuels.

Cristelle Pratt, Assistant Secretary-General of the Organisation of African, Caribbean and Pacific States (OACPS) made the following succinct summary of the oral hearings:

“Despite the overwhelming consensus that the relevant conduct is unlawful, a small minority of participants have had the audacity to double down on the limb of their innocence. They have done this in two ways. First, they have argued that the legal question being asked to the court is strictly forward-looking in nature and does not concern itself with historical emissions.

“Second, they have argued that the only legal obligations binding on them do not, in fact, require them to account for their historical emissions, including by reparations, let alone oblige them to stop emitting beyond their pitiful privileges. In essence, these states have invited the court to absolve them of a moral responsibility.”

At the close of the oral hearings, four judges posed what might be some of the most consequential questions ever addressed by the Court, shedding light on the pressing legal issues at the heart of these proceedings. These questions touch upon the critical intersection of customary international law, the law of treaties, the UN climate change regime, and human rights.

The questions related to:
- States’ legal obligations under international law with regards to fossil fuels production under their jurisdiction (question by Judge 🇺🇸 CLEVELAND)
- Whether the object and purpose of the UNFCCC and the Paris Agreement have any legal effect regarding the determination of whether Article 4 of the Paris Agreement (Nationally Determined Contributions) provides only an obligation of conduct or also one of result (question by Judge 🇿🇦 TLADI),
- The legal content of the right to a clean, healthy and sustainable environment and its relation with the other human rights which States have considered relevant for this advisory opinion (question by Judge 🇷🇴 AURESCU)
- The legal significance of the declarations made by some States on becoming parties to the UN climate agreements to the effect that these agreements may not be interpreted as derogating from principles of general international law or any claims or rights concerning compensation or liability (question by Judge 🇦🇺 CHARLESWORTH).

States and Intergovernmental Organizations that participated in the proceedings have until 20 December 2024 to submit their responses. This marks the final opportunity for them to provide crucial legal information to the 15 ICJ judges, shaping what will be a landmark advisory opinion (Sébastien Duyck).

The court will need to address the following legal questions raised in the presentations:
- What international law governs State obligations in relation to climate change?
- What binding obligations do the climate treaties contain?
- Does the long-standing duty to prevent significant transboundary environmental harm apply to GHG emissions and climate change?
- Does international human rights law impose obligations on States in relation to climate change and GHG emissions?
- Do legal rights and corresponding obligations extend to future generations?
- What are States’ international legal obligations regarding fossil fuels – the primary cause of climate change?
- When did States know about the causes and foreseeable consequences of climate change, and what does this mean in terms of legal obligations?
- Can the harmful consequences of climate change on States, Peoples, or individuals be attributed to the conduct of a particular State or States?
- Does conduct causing climate harm trigger legal consequences (cessation, guarantees of non-repetition and reparations)?

A decision from the ICJ is expected in 2025.

SOURCES: World’s Youth for Climate Justice https://www.wy4cj.org/
Sébastien Duyck 14 Dec 2024 on linkedin https://www.linkedin.com/feed/update/urn:li:activity:727361018486900736…