‘Historic’: UN court rules states have legal obligation to curb climate change – and fossil fuels

The International Court of Justice – the judicial organ of the United Nations – has ruled that states have a legal obligation to protect their citizens from the impacts of climate change in a “historic” advisory opinion.

Yesterday’s opinion, released in response to a request brought to the ICJ by a group of Pacific Island students in 2019, has been hailed as a major milestone for climate justice. It clearly states that the responsibility to mitigate climate change sits with governments, and paves the way for legal action from civil society in countries that do not take this responsibility seriously.

"Failure of a State to take appropriate action to protect the climate system from GHG 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," the ICJ wrote in its advisory opinion.

This means that countries that do not phase out fossil fuel subsidies – which are still nine times more widespread than renewable subsidies according to a recent UN energy transition report – could be mandated to pay reparations to those suffering climate impacts under international law.

‘The age of producing and bankrolling fossil fuels with abandon is over’

"Today’s decision is a once-in-a-generation moment for all of us fighting for climate justice. The world’s highest court has affirmed what millions of people all over the world have said time and time again: climate change threatens our very survival - and high-emitting states can and must be held accountable for the damage they’ve done. The judges have also sent a clear message to corporate and financial giants: the age of producing and bankrolling fossil fuels with abandon is over,” commented Lea Main-Klingst, lawyer at NGO ClientEarth.

Importantly, the ICJ specifies in its opinion that this obligation is valid under international climate rules like those of the Paris Agreement, but also under customary international law – meaning they apply even to countries that have left the Paris Agreement, like the US.

The opinion is not legally binding, but it has political and legal weight and will be used as a reference in future climate litigation cases. Danilo Garrido, Legal Counsel at Greenpeace International, said: “This is the start of a new era of climate accountability at a global level. This will open the door for new cases, and hopefully bring justice to those, who despite having contributed the least to climate change, are already suffering its most severe consequences. The message of the Court is clear: the production, consumption and granting of licenses and subsidies for fossil fuels could be breaches of International Law. Polluters must stop emitting and must pay for the harms they have caused.”

Protection from climate change is a human right, ICJ says

In addition, the ICJ opinion makes it clear that being protected from the impacts of climate change is a human right, stating that “a clean, healthy and sustainable environment is a precondition for the enjoyment of many human rights”.

“Consequently, in so far as States parties to human rights treaties are required to guarantee the effective enjoyment of such rights, it is difficult to see how these obligations can be fulfilled without at the same time ensuring the protection of the right to a clean, healthy and sustainable environment as a human right. The Court thus concludes that, under international law, the human right to a clean, healthy and sustainable environment is essential for the enjoyment of other human rights,” the opinion says.