Will legal obligations accelerate climate action?

The year 2024 has now been confirmed as the hottest recorded year, becoming the first to breach the 1.5 degree Celsius global warming threshold. This underlines the urgency for addressing the rising global emissions and holding nations accountable to their pledges to reduce emissions.

Notwithstanding the existing climate governance mechanisms, which are voluntary and based on national pledges, the United Nations General Assembly (UNGA) in March 2023 adopted a resolution requesting the International Court of Justice (ICJ) to issue an advisory opinion on states’ obligations in respect of climate change.

ICJ addresses the issue of climate change

In response, 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. The court is expected to issue an opinion in 2025, which will hopefully clarify States’ obligations under international law on climate change. 

The hearings have been described as a “landmark, historic, momentous and a watershed moment”. It began in response to Resolution 77/276 adopted by the UNGA in March 2023 wherein it was collectively decided that the ICJ – the judicial organ of the United Nations – needs to be involved in the matter. The resolution was adopted due to the efforts and lobbying undertaken by the Government of Vanuatu, a small island nation in Oceania, and the youth group Pacific Island Students Fighting Climate Change. 

In September 2021, Vanuatu announced plans to seek an ICJ advisory opinion on climate change, driven by its vulnerability to climate change and the need for increased action to address the global climate crisis. The UN transmitted the request to the Court in a letter dated April 12, 2023, seeking its opinion on the following:  

— 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?

— 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, with respect to: (i) States (ii) peoples and individuals?

ICJ hearings and climate justice 

During public hearings held by the ICJ (December 2-13, 2024), over 96 States and 11 international organisations presented their oral as well as written statements, offering a diverse range of perspectives: 

— Powerful countries such as the US and China were of the opinion that there is no need to include the ICJ in matters of climate change, as the existing climate governance mechanisms are voluntary and based on national pledges. They were sceptical about linking climate action to legal obligations. 

— Oil-producing and exporting countries shared these concerns and contended that legal prescriptions not endorsed by all States could disrupt the existing global framework. They fear such actions would impose legal restrictions on the production, sale and use of fossil fuel, interfering with the existing energy systems. 

— Some countries, including India, view this initiative with cautious optimism. In its statement submitted on March 21, 2024, India stated that an advisory opinion has the potential to provide legal clarity on the scope of States’ obligations under various existing international agreements on climate change. However, they stressed that such an action must avoid creating new or additional responsibilities for States. 

— Nations such as small islands represented by the Alliance of Small Island States and African countries were in favour of the ICJ’s involvement. They view climate change and its impacts as an existential crisis and call for the Court’s involvement in holding high-emitting nations accountable for taking action within their territories and providing reparations for damages. According to them, the existing treaties and conventions such as the UN Framework Convention on Climate Change and processes such as the Conference of the Parties (COP), have been largely ineffective in driving meaningful action in the last 30 years.

Why is there a need for legal clarity on climate action?

The existing climate framework has been slow to produce results. Negotiations and dialogues at the COP have largely been ineffective in persuading major emitters to take significant action in reducing emissions or in transferring finance, technology and other resources to developing and vulnerable nations. In the absence of legal obligations, progress has been slow.

Moreover, a lack of legal clarity on climate action risks undermining the broader framework of international law. This is because climate change is not an isolated problem; it intersects with human rights and other political, civil, economic, and social rights established under various UN treaties. Integrating climate agreements with these frameworks can create a synergy and address loopholes, if any. 

International laws and principles hold significant values, guiding and empowering national governments to act. The existing principles, such as preventing transboundary harm and providing reparations for harms caused (intended or unintended) would be strengthened if aligned with climate action obligations. In addition, an advisory opinion from the ICJ would embolden smaller nations to take legal action against major emitters. 

ICJ has a credible track record. Its organisational structure, consisting of 15 judges from different countries who are elected, ensures that deliberations are transparent and representative of the collective global opinion. However, while the recent ICJ initiative brings hope, it also raises significant questions and concerns within the international community, particularly regarding the possible issues resulting from the involvement of the ICJ in matters of climate action? 

Post Read Questions

Why do small island nations and African countries argue that existing treaties like the UNFCCC and processes like COP have been ineffective?

Could introducing legal obligations accelerate progress in addressing climate change? If so, how?

What are the broader implications of involving the International Court of Justice in holding high-emitting nations accountable for climate action?

Why does India view the  International Court of Justice initiative with cautious optimism regarding climate action?

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

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