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Historic climate change advisory: what the case before the International Court of Justice might mean

Zunaida Moosa Wadiwala explains that the International Court of Justice's upcoming advisory opinion on governments' legal obligations to address climate change could set a precedent in international law, clarifying state responsibilities to mitigate climate impacts, support vulnerable nations, and uphold human rights.
The case was brought by nine countries disproportionately affected by climate change, including Antigua and Barbuda, Vanuatu, and Tuvalu. (Reuters pic)

This piece was originally published on The Conversation website.

The International Court of Justice, the world’s highest court, held hearings in mid-December 2024 on the legal obligations that governments have under international law to protect the environment and limit climate change. It’s the biggest case the court has ever heard. The court is expected to hand down a legal advisory opinion in 2025. This will shape international climate law and governance. Climate law specialist Zunaida Moosa Wadiwala explains.

The Conversation

What triggered this case?

This climate change case started in 2021 when a group of law students lobbied the government of Vanuatu, a tiny South Pacific island nation threatened by rising sea levels, to approach the court. They wanted the court to issue an advisory opinion on what countries should be compelled to do to prevent climate change.

An advisory opinion is advice from the court to the United Nations on how best to apply international law on a specific matter.

Other countries – 131 of them – supported Vanuatu and drafted a resolutionwhich the United Nations general assembly adopted. 

The resolution said that:

climate change is an unprecedented challenge of civilizational proportions and the well-being of present and future generations of humankind depends on our immediate and urgent response to it. 

The general assembly then asked the International Court of Justice to decide what legal obligations every government has to prevent climate change.

Between 1948 and 2023, the International Court of Justice has issued only 27 advisory opinions on various matters. These range from whether the wall Israel is building through the occupied Palestinian West Bank is legal, to the independence of Kosovo.

What has the court been asked to decide?

The court will decide these points:

  • governments’ obligations under international law to protect the climate system and other parts of the environment from greenhouse gas emissions, now and in the future
  • the legal consequences for governments that fail to do this and cause harm to future generations and other states (especially small island nations that are affected by rising sea levels).

What’s involved?

Before the court issues an advisory opinion it holds public hearings. Written statements are also submitted. In this instance, governments and non-governmental organisations have supplied 91 written statements – the highest number filed in advisory proceedings before the court.

Nine African governments have provided statements to the court about the impact of climate change on their countries: Kenya, Ghana, Madagascar, South Africa, Cameroon, Sierra Leone, Mauritius, Burkina Faso, and Egypt.

The Inter-American Court of Human Rights held hearings for its advisory opinion on the climate emergency and human rights in April 2024. In the same month, the European Court of Human Rights heard its very first human rights climate cases. One ruling already states that a lack of climate action by governments violates human rights. The International Tribunal for the Land of the Sea has also said that climate change “raises human rights concerns”.

Third, the impact of the world’s highest court lending its voice to the climate crisis will not only be felt by the countries directly involved, but will influence all countries. 

This could open the door for transnational climate litigation, especially in matters of the sea and trade, and for corporate climate cases. 

Fourth, this case is a powerful tool that youth, non-governmental organisations, civil society and climate justice activists can use in campaigns.

Finally, this advisory opinion will highlight the damage caused by climate change to developing countries and small island states. 

What’s the impact likely to be?

This opinion could clarify whether and how developed nations are legally required to mitigate climate impacts, assist vulnerable countries, and uphold human rights in the context of climate change. 

The international community will be compelled to act on the recommendations that emerge from the court’s opinion. This will make global climate governance stronger (climate change affects the world and the world needs to work together in limiting it). It could lead to more international co-operation and to climate finance being made available for developing countries.

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