Country actions driving climate change ‘illegal’, states should be held legally responsible for emissions: International Court of Justice

The International Court of Justice (ICJ), the principal judicial organ of the United Nations having a seat at The Hague, passed a ruling on July 23 stating that government actions driving climate change are illegal and states should be held legally responsible for their emissions.

“The climate change treaties set forth binding obligations for states parties to ensure the protection of the climate system and other parts of the environment from anthropogenic greenhouse gas emissions,” the court opined.

The first-ever ruling of the highest global judicial forum on climate change, has been passed in an advisory capacity as requested by the Secretary-General of the United Nations through a letter dated April 12, 2023. Despite having no binding force, the court’s advisory opinions carry great legal impact and moral authority, pointed out experts who hailed the latest order as “a landmark one”.

The UN decision, to refer the matter to the ICJ, was driven by a demand from Pacific youth and island nations supported by a coalition of civil society, indigenous peoples and states.

“This is a concern of planetary proportions that imperils all forms of life. The court presents this opinion with a hope that its conclusions will allow the law to inform and guide social and political action to solve the ongoing climate crisis,” said Iwasawa Yuji, one of the judges passing the order.

Most climate experts, with whom this correspondent spoke, pointed out that the latest order would play a key role in the upcoming COP30 negotiations to be held at Belem, Brazil. It would also rejuvenate global climate talks, after the recently concluded Bonn negotiations which were subdued apparently due to US president Donald Trump’s strong anti-climate change rhetoric and a spate of wars across the world.

A few experts also opined that the latest order would provide lot of negotiation ammunition to climate vulnerable countries including India, which stands out to be one of the biggest sufferers due to climatic impacts over the decades along most of its South Asian neighbours.

A categorical order

The ICJ recalled that the UN General Assembly had sought its advisory opinion about a few key climate change-related questions, including those about:

“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 …

“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 states, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are particularly vulnerable to the adverse effects of climate change …”

The court passed the advisory opinion unanimously on July 23, after receiving 91 written statements and 62 written comments from several states and international organisations, besides holding public hearings from December 2-13, 2024, where 96 states and 11 international organisations presented oral statements. This is only the fifth time in its nearly 80-year history that the court has done so.

According to the judgement, the obligations of states include “to adopt measures with a view to contributing to the mitigation of greenhouse gas emissions and adapting to climate change”.

The ruling reminding that “States parties listed in Annex I to the United Nations Framework Convention on Climate Change (UNFCCC) have additional obligations to take the lead in combating climate change by limiting their greenhouse gas emissions and enhancing their greenhouse gas sinks and reservoirs”.

“While the entire order has been a landmark one, the second part is particularly telling as it has brought back the issue of historical responsibility of developed countries to the fore, which was almost put on the backburner when all countries agreed to the Paris Agreement that diluted the responsibility of the Annex 1 countries,” explained an expert.

The order pointed out that the country members of the UNFCCC “have a duty to co-operate with each other in order to achieve the underlying objective of the Convention”. This wording is expected to put pressure on the United States under Donald Trump, for while the US did withdraw from the Paris Agreement after Trump assumed power, it did not withdraw from the UNFCCC itself.

The order also underlined the Paris Agreement decision about trying to keep the global temperature rise within 1.5°C above pre-industrial levels. It also reminded about the responsibilities to implement the Vienna Convention and Montreal Protocol for protecting the ozone layer as well as the Convention on Biological Diversity and the United Nations Convention to Combat Desertification in countries experiencing serious drought as well as desertification, particularly in Africa.

“States have obligations under international human rights law to respect and ensure the effective enjoyment of human rights by taking necessary measures to protect the climate system and other parts of the environment,” reads the order, a copy of which is with this correspondent.

Responding to the more contentious question of legal implications of violating the Agreement, as posed by the UN General Assembly, the court ruled that “ … A breach by a State of any obligations … constitutes an internationally wrongful act entailing the responsibility of that State”.

Further, it stated that “the legal consequences resulting from the commission of an internationally wrongful act may include the obligations of:

(a) cessation of the wrongful actions or omissions, if they are continuing;

(b) providing assurances and guarantees of non-repetition of wrongful actions or omissions, if circumstances so require; and

(c) full reparation to injured States in the form of restitution, compensation and satisfaction, provided that the general conditions of the law of State responsibility are met, including that a sufficiently direct and certain causal nexus can be shown between the wrongful act and injury.

The last part directly syncs with the loss and damage component of UN negotiations that has only being formalised in the last few years but has hardly been rolled out on the ground.

‘A game changer’

“This is a historic moment. Today’s decision is the latest in a string of landmark decisions from the world’s top courts — all have found that governments have a legal duty to protect people from the climate crisis. At a time where almost all countries’ climate plans are falling short of what’s needed to limit global temperature rise to 1.5°C, the latest findings of the court will strengthen ongoing climate lawsuits against governments and corporations around the world,” observed Cordelia Bähr, lead lawyer in the landmark Klima Seniorinnen case, that triggered the decision.

Harjeet Singh, climate activist and founding director of Satat Sampada Climate Foundation, said: “The ICJ’s Advisory Opinion is not just a legal pronouncement; it is a game changer that will fundamentally reshape discussions at COP 30 in Belém, Brazil, this November.”

He further pointed out that “for years, climate negotiations have been hampered by political manoeuvring and a lack of clear legal accountability; that will be changed by the latest ruling.”

Anjal Prakash, climate scientist at the Indian School of Business and an Intergovernmental Panel on Climate Change author, observed that “by affirming that states have clear legal obligations to reduce fossil fuel emissions, it strengthens the moral and legal foundation of climate action”.

Prakash pointed out that “as we head toward COP30, this ruling injects renewed urgency and clarity—governments can no longer hide behind ambiguity”.

Sohanur Rahman from Youth Network Climate Change Bangladesh claimed: “Youth took the biggest crisis, climate change, to the world’s highest court and won. This is not just a legal victory, it’s a loud message that our future is non-negotiable.”

“The ICJ ruling has confirmed that climate change is a crime against humanity. As more than a billion people in South Asia are at risk due to climate impacts, the ICJ has rightfully held the culprits accountable for the crime committed,” asserted Sanjay Vashist, director of Climate Action Network South Asia (CANSA). He hoped that the latest ruling will provide lot of ammunition to vulnerable South Asian countries during the Belem negotiations.

“The opinion of the ICJ, though advisory in nature, will have strong persuasive value since it holds that any breach of the state’s obligation to mitigate climate change constitutes an internationally wrongful act entailing the responsibility of the state,” pointed out Ritwick Dutta, a frontline environment lawyer working in the National Green Tribunal as well as in the Supreme Court. He added that the exact implications will only be understood after a detailed study of the full order.  

“The detailed ruling emphasises the need to look at climate impacts and reduce emissions, while concluding that government actions driving climate change are illegal. It is a big step ahead of COP 30 to signal to countries that they must halt pollution and determine policies which don’t exacerbate climate change,” explained Aarti Khosla, founder director of research consultancy, Climate Trends.