The International Court of Justice States Nations Obligated to Protect the Planet’s Climate

Recently, the UN’s International Court of Justice (ICJ) released an advisory opinion on the obligation of nations to address climate change. The ICJ described the international rules applicable to combating climate change, characterizing it as an “existential problem of planetary proportions.”

The implications of the ICJ advisory opinion include:

• Enhanced Nationally Determined Contributions (NDCs) from nations with implications for the upcoming COP30 conference.
• That nations must enact more stringent emissions reduction legislation.
• Increased climate litigation between nations and against governments and private actors.
• Opportunities for new investment treaties embracing climate change and new transnational climate agreements.

A member of the Union of Concerned Scientists, Delta Merner, described to The Washington Post the fallout from the ICJ advisory opinion, characterizing it as a moment in time that will ultimately hold polluters accountable and “reshape the political, legal and even the moral landscape.” She continued, “We’ve been stuck in this notion that climate action is all voluntary. The ICJ reframed the climate crisis as a legal and human rights emergency.”

The ICJ relied on IPCC reports describing them as “the best available science on the causes, nature and consequences of climate change.”

The ICJ opinion does not legally bind nations to mitigate and adapt to climate change following the recommendations of the IPCC, but the report should influence the deliberations at COP30 to take place this November in Belém, Brazil. Nations that were signatories to the 2015 Paris Climate Agreement are expected to deliver their NDCs aimed at keeping global warming aligned with no more than a 1.5 °C (2.7 °F) rise in mean average temperatures.

I suspect that nations from the Global South will willingly provide NDCs. It is the richer nations of the Global North, led by the United States, that are more likely to be less cooperative.

One of the other goals of COP30 is the legally binding obligations of richer nations to provide financial assistance to poorer ones to help the latter implement climate change mitigation and adaptation strategies.

The COP30 President-designate is André Aranha Corrêa do Lago of Brazil. In a letter to the member states joining Brazil at COP30, he called for transformative actions on the ground to achieve the submitted NDCs, a breakthrough on loss and damage funding by richer nations, and for the first Global Stocktake to halt and reverse deforestation, forest and ocean degradation, and for renewed efforts to transition away from fossil fuels while pursuing sustainable development and the eradication of poverty.

Currently, the loss and damage fund in response to climate change is in its startup, with the current amount at US$250 million. The estimate of needed funds is $250 to 400 billion per year by 2030. At COP29, the overall climate finance goal for 2035 was set at $300 billion annually. None of these targets is binding at present. The opinion of the ICJ may shift the goalposts for this important COP30 agenda item.

The ICJ opinion noted the importance of forthcoming decisions at COP30. The judges provided twelve opinions and declarations, which were agreed to by them unanimously. These include:

1. Nations have a legal obligation under international law to protect the environment and climate under existing treaties and international law.

2. Nations are obliged to act to prevent, reduce, and control greenhouse gas (GHG) emissions that know no borders and inflict harm on others.

3. Nations are obliged to cooperate internationally to effectively address climate change and its impacts.
4. The obligation to address climate change is owed not just to other nations but to present and future generations.
5. Climate action is tied to human rights law obligations to provide a safe, clean, healthy, and sustainable environment.
6. The 1.5°C (2.7°F) warming lower limit set as the target of the 2015 Paris Agreement and subsequently referenced in subsequent COP meetings is not just an aspirational goal.
7. Nations are obligated to take steps to prevent significant harm to the climate system and the environment, especially for vulnerable countries and communities.
8. With climate change disproportionately impacting small island developing states and the least developed countries, and other vulnerable populations, richer nations are obligated to assist.
9. Nations that do not fulfil these obligations under international law must provide restitution and compensation.

10. The IPCC reports and the scientific consensus on anthropogenic climate change are the legal basis for the findings and obligations as described herein.

11. No economic, political, or developmental argument absolves nations from their legal climate obligations.

12. Climate protection duties are not just bilateral but are owed to the international community as a whole, underscoring a global and collective responsibility.

We shall see if the ICJ ruling has the necessary and heightened impact at COP30, getting all of the participants to make good faith efforts to address the existential threat to all of us from anthropogenic climate change. Only collective action will change the trajectory of global warming before it reaches the dreaded tipping points leading to an accelerated and runaway greenhouse effect.