The International Court of Justice (ICJ), also known as the World Court, has issued a landmark advisory opinion on states’ obligations concerning climate change.

The Nature and Weight of the Advisory Opinion

• While an advisory opinion is not technically binding, it stands as an authoritative interpretation of international law by the World Court. 
• Its pronouncements generate significant international pressure, influencing the behaviour of states. 
• Example: The United Kingdom’s handover of the Chagos Islands to Mauritius following an ICJ advisory opinion on that matter. 

Key Points of the World Court’s advisory opinion

• States Cannot Ignore Their Duties: The World Court has unanimously ruled that states possess legal obligations to protect the climate system. 
  • This duty cannot be ignored, regardless of political considerations. 
  • This reinforces similar recognitions of state responsibilities by other international courts, such as the International Tribunal for the Law of the Sea (ITLOS) and the Inter-American Commission on Human Rights (IACHR).
• Seamless Interpretation of Climate Treaties and Ambitious Targets: The court has interpreted all climate treaties, including the United Nations Framework Convention on Climate Change, the Kyoto Protocol, and the Paris Agreement, in a seamless manner, along with the best available scientific consensus, to strengthen the operation of many of the treaty provisions
  • The court has clarified:
  • The 1.5°C Threshold is Paramount: While the Paris Agreement aimed for “well below 2°C” and “efforts to limit to 1.5°C”, the court, referencing the latest science and COP decisions, affirmed that 1.5°C is the relevant threshold that states must definitively work towards. 
    • It unequivocally stated that the average global temperature must not be allowed to rise beyond 1.5°C.
  • Nationally Determined Contributions (NDCs): The court rejected arguments that states have unfettered discretion in preparing their NDCs, which outline national climate actions. 
  • Instead, it firmly stated that NDCs are not a free choice; they must reflect the ‘highest possible ambition’.
  • States must proactively take measures reasonably capable of meeting these NDCs, demonstrating real action.
• Addressing the Global North-South Divide and Climate Justice: The advisory opinion carries significant implications for climate justice and the Global North-South divide.
  • Common but Differentiated Responsibilities (CBDR-RC): The court highlighted the importance of the principle of Common but Differentiated Responsibilities and Respective Capabilities. 
    • This means that while all countries share responsibility for reducing emissions, it is not equal. 
    • Developed countries, being historically larger emitters, bear a greater responsibility.
• Legal Obligation for Finance and Technology Transfer: Developed nations have a legally binding obligation to provide financial resources and technology transfer to developing countries for both climate change mitigation and adaptation. 
  • This is not a matter of choice or discretion but a firm duty. 
  • The exact amount of financial support will be determined by good faith and due diligence.
• Rejection of ‘Self-Contained Regime’ Argument: The court rejected the argument, put forth by some countries including India, that climate treaties form a ‘self-contained regime’ where general international law and environmental principles are inapplicable.
  • The court declared that customary international law and environmental principles always apply. 
    • In practice, this means that withdrawal from climate treaties, as the United States has done, does not exempt a country from its climate-related obligations. 
    • It also means that, in working toward a green transition, countries must ensure that human rights are not violated and that a just transition is achieved.
• Protection of Human Rights: The court also noted the adverse effects of climate change on various human rights, particularly the rights of especially vulnerable peoples, which must be taken into account by countries when taking climate action. 
  • In practice, this means that withdrawal from climate treaties, as the United States has done, does not exempt a country from its climate-related obligations. 
  • It also means that, in working toward a green transition, countries must ensure that human rights are not violated and that a just transition is achieved.
• Accountability and Leverage for the Global South: The court dismissed the argument that countries cannot be held individually responsible for violating these obligations, because proving causation and attribution is difficult.
  • It pointed out that it is scientifically possible to determine each state’s total contribution to global emissions, considering both historical and current emissions.

Conclusion

This advisory opinion is a significant legal victory for small island states, which advocated for this UN General Assembly request, and are existentially threatened by climate change. 

• It will empower their efforts to hold major emitters accountable and push for more ambitious climate action. 
• For countries in the Global South, including India, this decision provides crucial leverage to collectively pressure developed nations to better fulfil their commitments regarding climate finance and technology transfer. 
• It also strengthens strategic climate litigation ongoing in various countries.

DOWNLOAD PDF