The International Court of Justice views it as the obligation of States to regulate fossil fuel producers
Six years ago in the Pacific Island State of Vanuatu, a group of 27 law students established the initiative that culminated in yesterday’s Advisory Opinion by the International Court of Justice (ICJ). As Vishal Prasad from Pacific Islands Students Fighting Climate Change stated, they took “the world’s biggest problem to the world’s highest court”. The Vanuatu government and other Pacific Island States led the initiative with the support of youth climate justice advocates, and in 2023 the ICJ was requested by the UN General Assembly to give an Advisory Opinion with regards to the obligations of States with respect to climate change. The hope was that this would provide clarity for States in the context of fragmented international climate change law. After more than 2 years of deliberations, which included a 2-week hearing in The Hague in December 2024, the unanimous verdict not only delivered on this, but went above and beyond.
In the Advisory Opinion, the 15 judges made clear that any State which fails to fulfil its “(…) obligation to prevent harm to the environment, including to the climate system, commits an internationally wrongful act (…)”. Furthermore, they reached the view that “failure of a State to take appropriate action to protect the climate system from greenhouse gas emissions — including through fossil fuel production, fossil fuel consumption, the granting of fossil fuel exploration licenses or the provision of fossil fuel subsidies — may constitute an internationally wrongful act which is attributable to that State”.
Under the Paris Agreement, each State has the obligation to submit detailed plans (known as Nationally Determined Contributions, or NDCs) on how they intend to reduce their greenhouse gas emissions in line with the Paris Agreement which limits global warming to 1.5C. According to the ICJ, a state could be held liable if it fails to meet its submitted NDCs or if those commitments lack ambition—particularly if the state continues to support fossil fuel production or provide fossil fuel subsidies. In November this year, each state is obligated to submit its NDC at COP30 in Belém. This Advisory Opinion serves as a powerful tool to hold states accountable for a lack of ambition and implementation.
On the question of responsibility of States who fail to take appropriate action, the court stated they could be held liable for “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”. Communities across the world, particularly in the Pacific and rest of the Global South, are already reeling from the impacts of floods, droughts, heatwaves, and storms. The impacts of these climate change events are projected to further increase in frequency and intensity if greenhouse gas emissions continue to rise. This is a clear signal that states have the obligation to regulate their fossil fuel industries, or risk being held liable for damages caused to frontline communities. The court also re-emphasized the necessity for the response to climate change being undertaken in adherence with the Common but Differentiated Responsibilities principle, key for illustrating the responsibility of Global North countries to provide Global South countries with climate finance for mitigation, adaptation, and Loss & Damage, reflecting the global share of historical and contemporary emissions.
While non-binding, this landmark opinion is expected to have far-reaching consequences. The main messages will reverberate not just in multilateral policy spaces, but also in legal cases between States, and furthermore have a major impact on local and regional lawsuits as district courts will strive to reflect and implement the ICJ’s findings. The opinion is already being heralded as the “most significant climate decision ever issued by a court”, precipitating a “new era of climate reparations”. In their reading, the judges also made clear that non-party States had a customary obligation, meaning that leaving the Paris Agreement (such as the US did at the beginning of this year) would not make a State exempt from being held liable under international law.
The Advisory Opinion will now be returned to New York to be passed by the UN General Assembly. In this context, it will be particularly interesting whether Germany votes to approve it, as in contrast to climate change negotiations it does not form a voting bloc with the EU in the UN General Assembly. And Germany has much to lose. As a major global greenhouse gas emitter, Germany is failing on some of its sector goals, particularly emissions relating to buildings and transport. Germany’s national target in relation to fair share of a global carbon budget is rated as insufficient, as are contributions to climate finance. Germany’s longstanding support of international law and the ICJ has also been thrown into disarray on numerous fronts, leading to a breakdown of trust with international partners, particularly from the Global South. The question now is whether Germany can align its policies, both domestic and foreign, with international law, and cooperate meaningfully and effectively to tackle the interlinked crises of today.
For more information on the Pacific Islands Students Fighting Climate Change, please refer to:
For more detailed legal analysis:
For the statement of Volker Türk, Office of the United Nations High Commissioner for Human Rights (OHCHR):
David Williams directs the Rosa Luxemburg Foundation’s Climate Justice Program in New York.