‘Landmark’ Climate Change Opinion Promised Reforms, May Be A Paper Tiger

In July, the International Court of Justice released an Advisory Opinion on the Obligations of States in Respect of Climate Change. The opinion claimed that countries were legally required to reduce greenhouse gas emissions and may have to pay reparations for damages from climate change. For climate activists, it was a landmark victory. However, the international community has largely ignored the opinion, bringing into question its significance and challenging the credibility of the Court.

In March 2023, the UN General Assembly asked the ICJ to issue an advisory opinion on the legal obligations of countries in preventing climate change. Over the following two years, over 90 countries engaged in written and oral arguments over the interpretations of treaties and what legal obligations exist under customary international law.

Developing countries asserted that the Paris Agreement created a legal liability for countries to meet the goal of net zero by 2050. They also argued that countries who contribute to climate change, through the production of fossil fuels and GHG emissions, should pay reparations to low lying and developing nations that are “adversely impacted” by climate change.

Much of the legal debate comes from the obligations states have under the Paris Agreement to submit reports to the UN. Article 4, paragraph 2 of the Agreement requires countries to “prepare, communicate and maintain successive nationally determined contributions that it intends to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the objectives of such contributions.”

These NDCs outline actions taken by the the countries to reduce GHG emission. Throughout the legal proceedings, this process was referred to as procedural, meaning that countries are only required to go through the process of creating the report. The debate arose over whether there is a substantive, or actual action, required to enact the goals of the NDC. A substantive requirement creates a legal liability to act and could lead to legal consequences for failure to act.

Following two years of proceedings, including both written and oral statements, the Court issued its Advisory Opinion relating to the Obligations of States in respect of Climate Change on July 23. The opinion created a new wave of liability for countries to address climate change, both within and beyond the confines of the Paris Agreement. The Court found that the NDCs were legally binding, creating legal obligations for countries to act and to change national law to align with those goals.

While climate activists were quick to offer comments on the opinion, world leaders have been largely silent. Select foreign ministers offered generic acknowledgments of the opinion while reaffirming their countries’ commitment to prevent climate change. Some differed, saying they need time to review. A month after the opinion, reaction has gone silent.

As an attorney practicing in this field, I have had the opportunity to engage in multiple high level discussions on the opinion. Behind closed doors, the response has been indifference and dismissive, even when it was to their advantage.

That may change at COP 30, when world leaders gather in Brazil to discuss progress relating to the UN Framework Convention on Climate Change and Paris Agreement. The annual meeting is already off to a rocky start, as parts of the Amazon were destroyed to build a highway to the summit site. Climate activists will lean heavily on the ICJ opinion to justify stricter enforcement of the Paris Agreement. However, that may have a chilling effect on reforms.

Many countries openly admitted in their oral statements that the goals set under the Paris Agreement were aspirational, not binding. This understanding of the treaty allowed national leaders to make grand promises, without any intentions of meeting those goals. With no enforcement mechanism, leaders could say anything without consequence.

Under the claim that any promises made will now be legally enforced through litigation by climate activists, smart national leaders will shy away from new commitments. At minimum, the will clarify that they are only aspirational and not binding, removing the threat of enforcement.

Notably the U.S. will be absent in the debate, as President Trump left the Paris Agreement and associated UNFCCC, making them no longer a “party” for the Conference of Parties. While the effective date of the exit is not official until January 2026, the Trump Administration has made it clear they considered the exit effective as of January 20, 2025. While it is unclear if the Trump Administration will send anyone, the absence of a delegation may be a strategic error.

The chilling effect may be the only real consequence of the opinion as actual enforcement is difficult. The problem arises in the limited jurisdiction of the court.

Many have mistakenly referred to the ICJ as the “world’s highest court.” The term refers to the top court in a jurisdiction, typically called supreme, as they are “superior to all others.” While it is known as the World Court, the ICJ is not the highest court. Rather, it is a specialized court developed by treaty to handle specific disputes between nations. Decisions of the U.S. Supreme Court cannot be appealed to the ICJ.

Additionally, ICJ opinions do not hold influence SCOTUS. In 1985, the U.S. withdrew from “general jurisdictional competence” of the ICJ, effectively removing influence by requiring the U.S. to agree to participate in litigation before the Court. In the 1998 case of Beard v. Greene, SCOTUS ignored an order by the ICJ requesting a stay of execution.

This feeds the general indifference relating to the opinion. The ICJ, like most courts, has no real enforcement mechanism. The advisory opinion was non-binding. It only provided guidance on how countries should interpret the obligations. While a legal challenge can be brought before the court, it can only be filed by a country and with the agreement of all parties. A high GHG emitting country will have to agree to be sued.

Legal actions by activists must be brought in national courts, and most likely in the court of the country being sued. Unless national law allows for enforcement of these opinion or treaties through their courts, success will be difficult. In the U.S., an outlying lower court may accept the argument, but this SCOTUS will reject it upon appeal. The most likely pathway for success will be in European courts, specifically the European Court of Human Rights.

That lands this back to being a political debate. No political opinions were changed as a result of the opinion. Only those closely following these developments are even aware the opinion exists. Those are almost exclusively within climate change circles. For the rest of society, it is business as usual.

What climate activists thought would signal a landmark shift in the debate, has, for now, become a footnote. It will be cited in climate change cases around the world, but may ultimately end up being a paper tiger – looking strong but having no real power.