After nearly two weeks of hearings, the International Court of Justice (ICJ) has a tough matter to consider, and one that many say will shape the future course of climate action across the world: What, really, are the obligations of states in mitigating the climate crisis? Can legal action be taken if countries fail to meet their commitments?

The question of responsibility in climate action has been at the heart of the annual global talks under the United Nations Framework Convention on Climate Change (UNFCCC). But the ICJ’s intervention was prompted by the frustration of small island states, who argue existing measures have not yielded desired results and that clarity is needed on the legal accountability countries have towards their climate commitments.

“The outcome of these hearings could become a concrete way to reframe the way negotiations are happening, where we haven’t seen enough momentum,” said Arpitha Kodiveri, assistant professor of political science at Vassar College in the U.S. “It’s a release away from the international gridlock and politics of climate negotiations, which doesn’t otherwise allow for more creative legal thinking on these agreements.”

Climate change is already causing sea level rise, rapid glacier loss, and erratic precipitation – the impacts of which fall the hardest on developing and small island states. Despite the Paris Agreement’s target of limiting global warming to 1.5 to 2 degrees above pre-industrial levels, temperatures are slated to cross more than 2.5 degrees by the end of the century driven by greenhouse gas emissions that reached record highs this year.

“As dozens of States have pleaded, it is vital that the ICJ looks beyond the Paris Agreement and delivers a strong legal opinion anchored in legal norms that advances climate justice and human rights,” said Sebastien Duyck, senior attorney with the Centre for International Environmental Law, in a statement, adding, “In clarifying what the law means, the advisory opinion will provide critical guidance to States and courts alike, influencing decisions about climate action, policy, and law both at the national and international levels.”

The hearings took place on the heels of the 29th Conference of Parties (COP29), where developing countries were left disappointed by a finance deal which represented a fraction of what’s needed to cope with climate impacts. The outcome of the talks has also spurred discussions about whether the UNFCCC and the COP processes need a rethink to enable more urgent climate action.

The ICJ has not indicated when it will announce its advisory opinion on the matter, but in a statement, it said deliberations on the hearing had begun and that an announcement would be made “in due course.”

How did the case come about?

The campaign to involve the ICJ into discussions about climate commitments was spearheaded by young law students from Vanuatu, a low-lying island state in the South Pacific Ocean that is grappling with sea level rise.

After the group of law students lobbied the Vanuatu government, it announced its intention of approaching the ICJ – the UN’s primary judicial organ – for an advisory opinion on climate action, in September 2021. It then drafted, along with 18 other countries, a resolution to the United Nations General Assembly (UNGA) which was adopted in March 2023. The UNGA, in turn, requested the ICJ to “to render an advisory opinion” on the matter. The ICJ is presided by bench of 15 judges.

The resolution, which was supported by 132 countries, noted “with profound alarm” that emissions of greenhouse gases continued to rise despite the vulnerable position it put developing countries in.

The resolution also sought a response to two key questions: What are the obligations of States, under international law, to ensure protection of the climate system and environment from rising emissions? It also sought to know what the legal consequences under these obligations could be when states harm the climate system, particularly with regard to vulnerable small island states and people impacted by climate change, both in the present and future.

After accepting the resolution, the ICJ called on states to send in written responses to the resolution, as part of the deliberation process.

What happened during the hearings?

The hearings took place from December 3 to 13, where the court heard from 96 States and 11 international organisations – the biggest hearing in its history. States, including India, brought up a wide range of issues for the court’s consideration: The need to lower emissions, restrictions on trade barriers, the relevance of the Paris Agreement in guiding climate action, and the role of historical responsibility in causing the climate crisis.

The hearings started with a presentation by Vanuatu and the Melanesian Spearhead Group (made up of Vanuatu, New Caledonia, the Solomon Islands and Papua New Guinea), which argued that the failure of large emitters to lower their emissions should trigger legal consequences. “How can behaviour that has brought humanity to the brink of the abyss, threatening the survival of entire peoples, be lawful and devoid of consequences?” Ralph Regenvanu, Vanuatu’s special envoy for climate change, asked, referring to countries like India, China, the U.S.A, Brazil and Russian Federation, among others.

Brazil, which will host the next UN climate conference COP30 in 2025, argued with data that there was a scientific rationale for historical emissions causing climate change. “Climate justice demands that the nations benefiting the most from historical emissions that still deplete the global carbon budget must bear the greater burden in addressing climate change,” said Luiz Alberto Figueiredo Machado, Special Envoy on Climate Change.

This was outright rejected by the Nordic group of countries (Denmark, Finland, Iceland, Norway, and Sweden) who argued that unlike the agreements before it, the Paris Agreement obligates all parties to make ambitious climate targets, and that the concept of differentiated responsibilities to the climate crisis was not static. “The capacity of any State with regard to contributing towards our common responsibility may evolve over time as national circumstances change,” said Kaija Suvanto, Director General for Legal Affairs in Finland’s Foreign Ministry.

The African Union, in its oral statement, said the court’s opinion should be guided by science and the principle of common but differentiated responsibilities (CBDR), which recognises responsibilities to address climate change is unequally distributed and based on contributions to the problem. The state of Malawi also said obligations to act on the climate crisis were not confined to the UNFCCC and agreements under it, and that customary international law is applicable to a country’s climate actions “independently of the existence of climate change treaties.”

The United States, meanwhile, said the court’s opinion should “preserve and promote the centrality” of the UNFCCC regime, and that agreements under the UNFCCC, including the Paris Agreement, were not legally binding.

“A party does not breach the Agreement if it fails to achieve its NDC. This is clear from Article 4.2’s description of each party’s NDC as something “that it intends to achieve,” the United States said during proceedings. The U.S. also argued that the principle of common but differentiated responsibilities “is not an overarching principle of the Paris Agreement or customary international law, nor is it a general principle of law.”

Why is this case important?

The Paris Agreement, the principal instrument driving global climate action today, weakened legal provisions on state obligations compared to its predecessors like the Kyoto Protocol. Emissions targets under the Kyoto protocol were binding for developed countries. The Paris Agreement, on the other hand, makes it legally binding for parties to prepare, communicate, and maintain climate targets (called nationally determined contributions), but not actually deliver on them.

The ICJ’s case is an opportunity to look at the Paris Agreement and the UNFCCC in the context of other international treaties whose principles could apply to climate law. “We are operating in an international regime where the prevention of climate harm — mitigation — is not as strong as it can and should be,” said Kodiveri, adding, “Low income and small island states pushed to strengthen a principle to prevent climate harm and pay for climate reparations, which is very interesting.”

While not legally binding, the ICJ’s advisory opinion can provide clarity on what the legal obligations of states should be towards their climate goals. It can also consider how international human rights obligations can be more meaningfully integrated with international climate law.

The ICJ’s deliberation of the case follows several independent lawsuits concerning responsibilities to address climate change. In a landmark case which opened the door to more climate litigation, the European Court of Human Rights (ECtHR) ruled that the Swiss Government’s climate policies failed to protect people against the adverse effects of climate change, amounting to human rights violations.

Read more: COP29 ends with a $300 billion promise overshadowed by distrust and discontent

Banner image:  The 15-judge bench of the ICJ during the climate hearings. Image via International Court of Justice.

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