It is not every day, although not unprecedented, that the planet takes the stand in a court of law, and it is rarer still for justice to be afforded for our living environment by a jury. A few weeks ago, in July, the International Court of Justice in The Hague, the world’s apex legal entity delivered a historic verdict for climate change. It opined that the climate obligations are not aspirational but substantive, legal, and most importantly, even enforceable.
The ruling rejected the arguments based on ‘lex specialis derogate legi’ and held the same view as that of 2024 ITLOS (International Tribunal for the Law of the Sea) that many other climate change treaties like UNFCCC, the Kyoto Protocol and the Paris Agreement are not necessarily ‘lex specialis’ and this principle if applied would be limiting the rules of climate governance. It was held that states have binding obligations to prevent significant environmental harm, cooperate internationally and uphold fundamental rights in the face of escalating climate risks. These duties extend to all states, and the climate system must be protected for present and future generations.
The headwinds
The ICJ’s advisory opinion assumes greater significance coming in the backdrop of 20th Jan. 2025 decision of US Administration to finally withdraw from Paris Agreement of 2015 on climate change mitigation. Interestingly the Paris Agreement has been on a roller coaster ride across four US administrations. The US within one year of becoming a signatory to the Agreement in Sept 2016 under Obama Administration, decided to cease all participation in Paris Agreement in June 2017 under the Trump Administration. However, due to the non-withdrawal clause it agreed to abide by the four-year exit process. Subsequently with the signing of an executive order by Biden Administration, the US formally rejoined the Paris Agreement in Feb.2021. Yet again, the US decided to withdraw from the Paris Agreement this Jan. 2025. The White House Presidential Order of Jan. 2025 on ‘Environmental Agreements’ clearly stated that, ‘The US must grow its economy and maintain jobs for its citizens while playing a leadership role in global efforts to protect the environment’. It stated that the Us shall immediately submit formal written notification of the US’s withdrawal from the Paris agreement…. And any attendant obligation.’
These developments restarted the debate on the nature of primacy of the national interest vs. global concerns on a shared planet. Although the US decision to withdraw does affect the global efforts to mitigate adverse impacts of climate change in many ways, it obviously emanates from a rather strong sense of national interest taking precedence over global joint action through a multilateral agreement. Although the order of 20th Jan. 2025 affirms that US, ‘shall be playing a leadership role in global efforts to protect the environment’ the US withdrawal decision would in any case reduce financial aid for the associated efforts and to the funds like the Green Climate Fund, impact on climate change research and finally affecting the carbon emission space and the carbon pricing. The withdrawal it is generally believed would make available the spot for others like China and the EU to take over global climate regime. Latest in line of recent major developments is the 12th august US Department of State communique, the ‘Joint Statement on Protecting American Consumers and Shipping Industries by Defeating the International Maritime Organization’s “Net-Zero framework” aka Global Carbon Tax.’ With this, US rejects the proposed adoption of International Maritime Organisation’s “Net-Zero framework” this October.
Similar views have also been reflected by various countries albeit in shrouded undertones e.g. the renewed emphasis on Fossil fuel consumption for energy with its availability in countries with abundant reserves. Continuous usage of coal for thermal generation by adopting technologies to reduce emissions and broadly by the arguments in favour of extending the timelines for net zero emissions. The energy transition for many states in the global south is not only more expansive but can’t be matched with the levels of those in the developed world – primarily a legacy issue with the decolonised world. Above all the 2025 challenges to the very issue of global warming and the specifics of pursuing efforts to limit global temperature rising by more than 1.5C and to keep this well below 2.0C recorded in preindustrial times as agreed upon by signatories of the Paris Agreement of 2015, has shaken the very foundation of the concept of climate change and global warming and created doubts about the obligations and commitments of the States towards measures to be adopted to tackle Climate Change. It is in this background and recent developments that the ICJ’s ‘advisory opinion’ delivered on 23 July assumes greater and perhaps historic significance. It was also the finale to a six-year-old struggle of PISFCC from the tiny island nation of Vanuatu which faced the climate challenge and sought the international judicial body’s verdict to the States on their climate obligations.
University Campus to the International Court of Justice
This incredible journey seeking climate justice was undertaken in 2019 by a group of third year law students at the University of South Pacific’s Emalus campus in Vanuatu led by Cynthia Houniuhi, someone who had seen the adverse impact of climate change on the islands. She formed an organisation called Pacific Island Students Fighting Climate Change (PISFCC) and decided to approach the UN and the ICJ to seek its opinion. Their efforts fructified with the help received from Vanuatu Government. Next couple of years the PISFCC under its President Cynthia Hounihui mobilised support from not only the Pacific and Caribbean nations but many young activist groups across Asia, Europe, East Africa and the Americas. By 2023 the PISFCC was able to get 132 countries to co-sponsor a resolution to be presented to the UN General Assembly. Vanuatu by this time was in a state of national emergency reeling under the impact of devastating effects of two tropical cyclones. Later in the same month on 29th March 2023, UN General assembly unanimously adopted the resolution and referred the matter to the ICJ seeking its opinion on two specific 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 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.
The hearings and the verdict of ICJ
The reference from the UN General assembly was considered by the ICJ and it was decided to hold public hearings for the States and stake holders to present their views. PISFCC was slotted to be heard the very first day. Cynthia Houniuhi as the President of PISFCC delivered a very powerful addressed to the ICJ’s 15 Judge bench on a cold December morning in the Hague in 2024. The hearings held between 2 to 13 December 2024 witnessed the highest level of participation with 96 States and 11 international organisations presenting oral statements. 91 written submissions and 62 written comments were also considered by the Court. Most of the States emphasised that several national and international laws govern the mitigation measures and States are obliged to follow only those. Major states including Australia, US, UK, Saudi Arabia, China and Russia reaffirmed that their legal responsibility is limited to the UN Framework Convention on Climate Change (UNFCCC) and the Paris Agreement of 2015.
After detailed deliberations the ICJ on 23rd July adopted the Advisory Opinion unanimously-only the fifth time in its nearly eighty-year history. After giving detailed reasoning and interpretations vis the existing Agreements, treaties and prevailing national and international laws, the ICJ gave its historic ruling in the form of an ‘advisory opinion’.
The opinion underlines that the Climate change is an “urgent and existential threat “to the planet earth reaffirming that human activities are the cause of hazardous greenhouse gas emissions. ICJ confirmed the limits of the global warming to below 1.5C as accepted by the parties to the Paris Agreement. ICJ considered the extant international laws including UNFCCC, Kyoto Protocol, Paris Agreement amongst others and held that these are complementary and mutually reinforcing.
The ICJ also rejected the narrow interpretation of the group of the high GHG emission states that UNFCCC, Kyoto Protocol and Paris Agreement constitute ‘lex specialis’ framework and opined that climate treaties are not in conflict with States’ wider obligations under general international law. The Court advised that the duty to prevent significant harm to the environment carries an obligation to act with due diligence. On the issue of protection of environment not being a human right as also submitted by a few States, the Court held that every person has a human right to a clean, healthy and sustainable environment, which is a prerequisite for enjoying foundational rights such as life, health, food, water and housing.
The ICJ also held that any State failing to honour their climate obligations commits an internationally wrongful act and that omitting necessary measures to safeguard the climate system amounts to a breach of international law, with corresponding legal consequences. In a major ruling the Court also reinforced the principle that any conduct-whether action or commission- by a state organ is attributable to the State itself. Court further emphasised that a state’s failure to regulate greenhouse gas emissions-including through fossil-fuel production, consumption, licensing, or subsidies-constitute such an internationally wrongful act. ICJ also ruled that any breach of obligations related to loss and damage from climate change must be assessed under the established customary international laws.
Implications of an ‘advisory opinion’
ICJ has delivered 29 advisory opinions in its about eighty-year long history of adjudications. The advisory opinions may lack direct enforceability under Article 59 of the Statute of ICJ, however these carry legal weight and considered as the most persuasive source of international legal interpretations and clarifications on the extant laws. In the present case the ICJ has categorically held that the States have legal duties which also include due diligence obligations to even regulate private entities- to prevent, mitigate and remedy climate effects. It opined that those duties are obtained from obligations contained in treaties like the UNFCCC and the Paris Agreement. The advisory opinion delivered by ICJ on 23rd July 2025 is being considered across the globe as the most comprehensive, far reaching and consequential legal interpretation. The cause of climate justice has been powerfully advanced. The island States more specifically rejoiced seeing it as a major victory of their efforts in achieving what a group of university students from the tiny island nation of Vanuatu started in 2019.
The challenges- to brace or brave
The 28th COP, the UN climate conference, held in 2023 in Dubai reiterated the global concerns of climate change which is being projected to raise the temperatures up to 2.4 C to 2.8 C at the present rate by 2100, against the limit of 2.0C, indicating potential catastrophic global consequences. The 29th COP held at Baku in 2024 deliberated on the supporting financial mechanism. The much awaited 30th COP scheduled to be held at Belem (nestled in the amazon rainforests) in Brazil from Nov. 10-21 this year would certainly have the difficult task of sailing through the choppy waters of the global rethinking on the very concept of climate change. And the advisory opinion delivered by the ICJ shall be its directional compass and the guiding force for the States understanding of their legal obligations.
For the present however, the six yearlong efforts and struggle of the members of the Vanuatu based ‘Pacific Islands Students Fighting Climate Change (PISFCC) in getting the historic ICJ verdict that the States’ climate obligations are substantive, legal and enforceable, deserve global appreciation and recognition. A Nobel prize to PISFCC would certainly be in order, because no matter what balm we put on our current wars, the existential threat to our planet from climate change, the humanitarian crises it triggers, the displacement it causes, and the new conflicts it generates, is going to be our biggest fight in a future soon to come.
(M Jamshed, The writer is Distinguished Fellow at CRF and a former Member of Central Administrative Tribunal)
(Cover Photo: Monsoons are a nightmare in Patna, as the Ganges swells and floods the plains yearly, causing massive losses of both lives and property. Credit: Nitin Joshi)
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