How ICJ’s opinion could impact global climate governance

Climate issues and the legal responsibilities of nations to undertake climate action are increasingly being addressed in national courts across the world. For instance, the Supreme Court of India has recognised the right to a clean environment and protection against the adverse impacts of climate change as a fundamental right. 

In this context, it is only right for the world’s highest court, the International Court of Justice (ICJ), to intervene and provide clarity on the existing corpus of international law and states’ obligations towards climate action. The ICJ held public hearings on the obligations of states with respect to climate change and the legal consequences of these obligations between December 2-13, 2024. 

Although the advisory opinion that the court is expected to issue this year is not binding on countries, the outcome of this case is expected to have significant ramifications on the climate change discourse. It is also likely to become a precedent for the thousands of climate lawsuits that have been filed in recent years in courts across the world, seeking greater accountability from governments and corporates. 

Let’s understand how the ICJ’s advisory opinion, despite being non-binding, could impact global climate governance. And how have climate lawsuits against governments and corporations evolved in recent years?  

Climate change, a collective-action problem

Since the 1970s, climate change has been viewed as a collective-action problem. International law on climate change has since evolved through a series of global efforts. The major existing international law on climate change consists of the UN Framework Convention on Climate Change (UNFCCC) and its two instruments — the Kyoto Protocol, which lapsed in 2020, and the 2015 Paris Agreement – along with various decisions taken to implement its principles and provisions. Together, these treatises have laid down guiding principles for international cooperation and coordinated response to climate change.  

However, over the last decade, climate issues have taken on increasing complexity, with global events highlighting that climate change is as much a socio-economic and political issue as an environmental one – rooted in the political economy. Therefore, it has been argued that effective climate action requires a recalibration of economic growth models, energy demands, use of natural resources, production and consumption patterns, as well as civic and human rights. 

As a result, the purview of climate action would extend beyond the UNFCCC framework into areas such as international trade, the political economy of fossil fuels, agriculture, and inter- and intra-national migration, making several other areas of international law a part of the debate. Nonetheless, several critics of the proceedings at the ICJ remain sceptical as they believe that expanding the climate debate to encompass trade, energy, migration, rights and consumption could hinder rather than benefit global climate action; and such an expansion could lead to conflicts between different areas of international laws. 

A question raised by Justice Cleveland prompted states to consider whether international climate law imposes obligations to phase out fossil fuel production, supply, and consumption. To this, states responded with divergent views – some argued that phasing out fossil fuels should be an obligation, while others maintained that nations have the right to use their natural resources to support their developmental needs.

Healthy environment, foundation of all human rights

The proceedings at the ICJ are playing a significant role by bringing international climate law into dialogue with general international laws. During the proceedings, Judge Aurescu asked states how the right to a clean, healthy and sustainable environment relates to other human rights provided under customary laws. In response, Ghana’s representative asserted, “…without a healthy environment, other rights will become impossible to enjoy and the survival of humans and other species becomes at risk.” 

Similarly, the Republic of Vanuatu, a small island nation in Oceania, attempted to broaden the right to a clean environment to include the right to self-determination and protection of their culture. Such a broad interpretation of the right to a clean environment raises questions about the legal status of principles under the UNFCCC, which are not legally binding. 

If customary laws such as the ‘prevention of transboundary harm’ and ‘polluter pays’ were applied to climate change, several discrepancies would emerge. This is because the ‘no transboundary harm’ principle is traditionally applied to harmful pollutants whose source can be clearly established. However, in the case of climate change, attributing emissions to a specific source is nearly impossible, making it difficult to establish legal responsibility. Therefore, existing customary laws cannot be applied uncritically in the case of climate change.

The climate change dilemma

Climate change is a complex problem that cuts across societies, polities and economies. A legal enquiry into such a complex problem would primarily lead to legal prescriptions rather than concrete action. As emphasised by OPEC (Organisation of the Petroleum Exporting Countries) in its written statement that a collaborative approach rather than a prescriptive one is needed to tackle the climate crises.

Moreover, the present framework of climate action under the Paris Agreement is based on voluntary pledges rather than legally binding obligations. This approach allows a nation to use its natural resources for its economic development while taking climate action based on its capability and voluntary commitments. The bottom-up structure of climate governance provided in the Paris Agreement would therefore be incompatible with a legal enquiry, which generally follows a top-down approach. 

As a result, what the ICJ can realistically achieve, as it cannot enforce its verdicts within national jurisdictions, remains to be seen. Therefore, while the proceedings mark a significant victory for countries extremely vulnerable to climate change – by allowing them to hold high-emitting countries accountable – the question of whether powerful nations will truly be held accountable remains open. 

Post Read Questions

What is the significance of climate change hearings at the International Court of Justice?

How has climate change evolved into a socio-economic and political issue beyond just an environmental concern?

How does the intersection of climate action with areas like trade, energy, migration, and human rights complicate global climate governance?

How have climate lawsuits against governments and corporations evolved in recent years?

How do differing national perspectives on fossil fuel usage reflect broader tensions between environmental sustainability and economic development?

(Aishwarya Sanas is a doctoral researcher at Shiv Nadar Institution of Eminence, Delhi NCR.)

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