In 2023, the United Nations General Assembly, made up of 193 nations, formally requested an Advisory Opinion from the Internatinoal Court of Justice (ICJ) on two questions: What are the obligations of states with respect to preventing climate disruption and related harm? And what are the legal consequences of not meeting those obligations?
Today, the ICJ issued its Advisory Opinion, finding:
- Climate change caused by industrial global heating is an urgent and existential threat.
- All nations are required to act to reduce human-caused climate disruption.
- This obligation is both treaty-based and rooted in customary international law, including human rights law—meaning the obligation is as universal and transcendent as human rights themselves.
- This obligation includes the obligations to use the best available science, maintain and improve relevant scientific observation platforms, and to regulate climate pollution from all actors, including the private sector.
- Failing to meet the obligation to act to prevent climate damage is an “international legally wrongful act”.
- Nations and groups of nations can use legal tools to penalize other nations that commit legally wrongful acts, including through court rulings, legislation, tariff and trade arrangements, and other multilateral actions.
An important aspect of this opinion is the requirement that all nation-state governments carry out due diligence in terms of climate responsibility. Recalling an ICJ opinion from 2010:
The Court recalls that due diligence requires a State to “use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State” ... This means that States must “put in place a national system, including legislation, administrative procedures and an enforcement mechanism necessary to regulate the activities in question, and … exercise adequate vigilance to make such a system function efficiently, with a view to achieving the intended objective” (Climate Change, Advisory Opinion, ITLOS Reports 2024, p. 89, para. 235).
Today’s Advisory Opinion [PDF] also makes clear that while it is national governments that have these legal obligations, the right against climate harm extends to all people. The right to demand climate action, through legal process, from one’s own government, effectively extends to all people in all nations.
Because “It is the sum of all activities that contribute to anthropogenic climate change over time”, nations are required to cooperate to pursue the material reduction in global heating pollution and related climate disruption and damage. That cooperation can take many forms, and in fact can include any of the legal or economic instruments that would constitute international cooperation more generally, including for enforcement purposes.
The Court specifically called out production of fossil fuels, as well as policies and incentives, including direct subsidies, that lead to the increase of global heating emissions, as potentially constituting “international legally wrongful acts”. Nations that do not regulate and control climate pollution, or that use state authority to cause an expansion of climate pollution, can be held accountable by other nations.
This Advisory Opinion means no nation can successfully argue in front of any international body that it cannot be held accountable for refusing to act on climate. While in practical terms, many expect governments dependent on fossil fuels will continue to slow-walk compliance, the number of mechanisms now available for accelerating cooperative climate action has greatly increased.
One clear example of this is the question of carbon-related border adjumtment mechanisms (CBAM), such as the EU-CBAM that is currently pending, but on hold. Before this ICJ opinion, it was unclear how an evidence-based CBAM policy would fare against legal challenges based solely on sovereignty or protectionism claims; now, it is clear: such policies are legally legitimate tools for enforcing compliance, under international law.
There has been, in the chaotic restart of industrial activity and global trade after the COVID shutdowns, a brief surge in open resistance to the scientific and legal facts at issue in today’s Advisory Opinion. Some national governments and industrial and financial interests have advocated for rolling back or abandoning climate policy, despite the observable extreme and rising costs of climate disruption.
Each of those entities — industrial polluters, financial institutions, and national governments setting policy, subsidies, and trade rules — should take stock of the ICJ opinion and recognize that, however uneven its enforcement, it will lead to tighter pollution controls, shifts in market behavior, and a surge in technological innovation. It may also lead to changes in how insurers and other funders of last resort respond to disasters.
In the United States, the Constitution requires all judges and officials to treat international treaties as binding Constitutional law (Article VI). The Preamble to the Constitution calls for good-faith action to “promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity” echoing the Court’s call to employ “all fields of human knowledge, law, science, economics, or any other… to secure a future for ourselves and those who are yet to come.”
What this means in practice is that the fundamental human rights of all Americans, which under the Ninth Amendment need not be written into any law to enjoy full and irreducible protection under the Constitution, can serve as a legal foundation for establishing standing to demand government action to reduce climate disruption and related damage and cost.
The ICJ opinion recognizes the need for scientific data to be as widely available, as high quality, and as adaptive and context-specific as possible, to ensure properly informed, unbiased assessment of risk, and to provide evidence of attribution and grounds for redress. Earth systems data must become more openly available, more evolved, precise, and useful.
This will have an impact on what services are made available by the public and private sectors, and through international cooperation. In fact, providing climate-related assistance through such cooperation is one clear and verifiable way for a nation to reduce its legal liability for past or ongoing pollution. This is already required and recognized under international law, and it can be used to shape finance, trade, industrial activity, and the everyday economy.
Today’s ICJ Advisory Opinion provides real and practical clarity:
- It is legally required for governments to take action to reduce the threat of climate change, to their own people and to people in other nations.
- It is necessary to use science and data to inform cooperative transition strategies, to spur innovation and support climate-resilient development.
- Neglect of this responsibility is legally wrongful and illegitimate; all economies will face either climate costs or a healthier alternative.
- Businesses that lead the way in supporting climate risk and opportunity insights, and solutions, will be more and more in demand.
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