ICJ Ruling: A New Era for Climate Justice
By Darius Spearman (africanelements)
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ICJ’s Landmark Climate Opinion
The International Court of Justice (ICJ) recently issued a unanimous advisory opinion with profound implications for environmental protection and climate change. This ruling, delivered on July 23, 2025, asserts that countries have a legal obligation to protect the environment from greenhouse gas (GHG) emissions. This includes the crucial responsibility of regulating the private sector (ipe.com). This obligation extends beyond signed treaties, reaching into the realm of customary international law (theconversation.com).
The ICJ, the principal judicial organ of the United Nations, provides advisory opinions on legal questions referred to it by authorized UN organs and specialized agencies (jdsupra.com). While these opinions are generally non-binding, they carry significant legal authority. They contribute immensely to the clarification and development of international law (jdsupra.com). This particular opinion was a direct response to a request from the UN General Assembly, initiated by a group of law students from Vanuatu (theconversation.com).
Customary International Law and State Obligations
The ruling emphasizes that states not party to specific climate treaties are still obligated under customary international law to protect the environment and address climate change (ipe.com). Customary international law refers to international obligations arising from the general and consistent practice of states, followed by them from a sense of legal obligation. Unlike treaty law, which is based on explicit agreements, customary international law is unwritten and evolves from widespread, consistent state behavior recognized as law (wy4cj.org).
The ICJ confirmed that a breach of these obligations constitutes an internationally wrongful act. This triggers legal consequences, including the duty to cease wrongful conduct, provide assurances against recurrence, and make full reparation (eyeonesg.com). An internationally wrongful act is an act or omission attributable to a state under international law that breaches an international obligation of that state. The legal consequences typically involve ceasing the wrongful act and making full reparation for any injury caused (blogs.law.columbia.edu). This ruling is seen as paving the way for countries to sue each other over climate change. It also clarifies that governments’ obligations include regulating the private sector (ipe.com).
Key Legal Obligations for States
The ICJ’s advisory opinion establishes two key customary international legal obligations for states. The first is a duty to prevent significant harm to the environment. The second is a duty to cooperate with other states to protect the environment (theconversation.com). The duty to prevent harm requires states to exercise due diligence. This means assessing the probability and extent of potential environmental damage. It also means ensuring compliance by companies and individuals under their jurisdiction (theconversation.com).
In environmental law, “due diligence” refers to the legal standard requiring states to take all reasonable steps to prevent significant transboundary environmental harm. This involves assessing potential environmental risks and implementing appropriate preventative measures (riskandcompliance.freshfields.com). The duty to cooperate recognizes that a healthy environment is a precondition for human rights. It affects rights to life, health, livelihoods, and the rights of children, women, and indigenous people (theconversation.com). States can be held legally responsible for failing to take all measures within their power to prevent significant environmental harm. The critical factor is the effort made rather than the results produced (theconversation.com). The ICJ also affirmed that the right to a clean, healthy, and sustainable environment is recognized as a human right (eyeonesg.com).
Implications for African Debt
The ICJ’s advisory opinion has significant implications for African sovereign debt. It provides new opportunities to hold debtor and creditor states, along with creditor institutions, accountable for the environmental and social impacts of their actions (theconversation.com). African sovereign debtors can use this ruling to argue for the inclusion of environmental and social impacts in debt negotiations. This highlights their international legal responsibility for greenhouse gas (GHG) emissions and human rights (theconversation.com).
Creditors and their home states also have a legal obligation to assess these impacts and cooperate in managing them (theconversation.com). International norms and standards, such as the UN Guiding Principles on Business and Human Rights, UNCTAD Principles on Responsible Sovereign Borrowing and Lending, and OECD Principles of Responsible Conduct for Multinational Enterprises, can help establish the content of these international legal responsibilities (theconversation.com). Activists can use the judgment to strengthen arguments that creditor and debtor states have an international legal duty to prevent significant harm to the environment and cooperate in its protection. This extends to ensuring compliance by companies and individuals under their jurisdiction (theconversation.com).
Broader Legal Trends
The ICJ’s advisory opinion is part of a broader trend of international courts focusing on states’ climate-related obligations. Earlier in July, the Inter-American Court of Human Rights issued an advisory opinion. It concluded that states have obligations to address the ongoing climate emergency under the American Convention of Human Rights (pinsentmasons.com). Last year, the European Court of Human Rights ruled that the right to respect for private and family life (Article 8 of the European Convention on Human Rights) extends to a right to be effectively protected by states against the serious adverse effects of climate change (pinsentmasons.com). The African Court of Human and Peoples’ Rights is also preparing an advisory opinion on climate change (pinsentmasons.com).
This growing body of international legal opinion collectively shapes international climate law. It also increases pressure on states and creditors to act responsibly. The ICJ opinion could strengthen African states’ leverage in negotiations, demanding accountability from high-emitting nations (wy4cj.org). For example, Uganda’s submission to the ICJ, aligned with the African Group, emphasized that high-emitting states bear primary responsibility for climate impacts due to their historical emissions (wy4cj.org). This is critical for countries like Uganda, where limited resources hinder the implementation of their Nationally Determined Contributions (NDCs) under the Paris Agreement (wy4cj.org).
Accountability Mechanisms
Non-state actors have various international mechanisms to hold debtors and creditors accountable for failing to perform their duties related to environmental and human rights obligations. These mechanisms include National Contact Points (NCPs), which exist in states that have signed the OECD Principles of Responsible Conduct for Multinational Enterprises (theconversation.com). NCPs are government-backed offices that handle complaints against companies regarding alleged breaches of the OECD Guidelines (riskandcompliance.freshfields.com).
Independent accountability mechanisms (IAMs) in multilateral development banks also offer avenues for recourse (theconversation.com). IAMs are non-judicial grievance mechanisms associated with international financial institutions. They provide a channel for individuals or communities to seek redress for harm caused by projects funded by these institutions (riskandcompliance.freshfields.com). Courts in a growing number of states are seeing cases where governments, central banks, and private actors are being sued for violating climate change obligations (theconversation.com).
Translating Opinion into Action
While the ICJ’s advisory opinion is not legally binding, it carries substantial legal and moral weight. It influences the interpretation and development of international law (sustainablefutures.linklaters.com). This can strengthen the legal basis for climate litigation. It can also encourage states to enact stronger domestic climate legislation. Furthermore, it provides leverage for climate-vulnerable nations in international negotiations (wy4cj.org).
For private actors, the opinion reinforces the expectation that states will regulate their activities to align with climate obligations. This could lead to new regulatory frameworks and increased scrutiny (riskandcompliance.freshfields.com). The ICJ’s advisory opinion implies that states have an obligation to regulate private sector activities to mitigate greenhouse gas emissions and protect the climate system. This could lead to states implementing stricter environmental impact assessments, mandating emissions reduction targets for industries, imposing carbon pricing mechanisms, promoting renewable energy adoption, and enforcing due diligence requirements for businesses (riskandcompliance.freshfields.com).
African Debt Negotiations
Based on the ICJ’s advisory opinion, African countries might pursue several legal or procedural changes in debt negotiations. This could include advocating for debt-for-climate swaps, where debt is forgiven or restructured in exchange for commitments to climate action (wy4cj.org). They might also push for the inclusion of climate resilience clauses in new loan agreements. They could also argue for reduced debt burdens from high-emitting nations. This would cite the principle that those who have contributed most to climate change should bear greater responsibility for its impacts and associated costs (wy4cj.org).
The relationship between sovereign debt and environmental obligations in the African context is complex. High levels of sovereign debt can limit a country’s financial capacity to invest in climate change adaptation and mitigation measures. Conversely, incorporating environmental and social impacts into debt negotiations can create opportunities for debt relief or restructuring tied to climate commitments. This could potentially free up resources for environmental protection and sustainable development (theconversation.com).
Effectiveness of Accountability Mechanisms
The effectiveness of non-state actor accountability mechanisms, such as National Contact Points (NCPs) and independent accountability mechanisms (IAMs), in practice, particularly in African contexts, can vary. While they offer avenues for redress and can influence corporate behavior, their effectiveness often depends on several factors. These include the political will of states to enforce recommendations, the accessibility of the mechanisms to affected communities, the resources available to complainants, and the responsiveness of the implicated companies (riskandcompliance.freshfields.com).
Challenges can include limited enforcement powers, lengthy processes, and power imbalances between complainants and corporations. Despite these challenges, these mechanisms provide crucial avenues for non-state actors to advocate for environmental and human rights. They also push for greater accountability from both states and private entities. The ICJ’s advisory opinion strengthens the legal basis for these efforts. It provides additional leverage for communities and activists seeking justice for climate-related harms.
Climate Change and Human Rights
The ICJ opinion affirms the right to a clean, healthy, and sustainable environment as a human right. This could significantly influence domestic laws and policies in African countries. Recognizing this right at the international level provides a powerful tool for advocates to push for stronger environmental protections and climate action within their own nations. It can also lead to increased litigation at the domestic level, holding governments and corporations accountable for environmental degradation and its impact on human well-being.
For example, the alarming increase in sexual violence in the Democratic Republic of Congo (DRC) highlights the intersection of conflict, displacement, and human rights abuses, often exacerbated by climate-related factors. Médecins Sans Frontières (MSF) treated an unprecedented number of survivors of sexual violence in the DRC in 2023, averaging over two every hour (msf.org.uk). In 2024, MSF teams in North Kivu province treated nearly 40,000 victims and survivors of sexual violence (msf.org). While not directly linked to the ICJ ruling, this situation underscores the urgent need for comprehensive approaches to human rights protection that consider environmental factors and their cascading effects on vulnerable populations.
Understanding Greenhouse Gas (GHG) Emissions
Greenhouse gas (GHG) emissions are gases in the Earth’s atmosphere that trap heat, leading to the greenhouse effect and global warming. Common GHGs include carbon dioxide (CO2), methane (CH4), and nitrous oxide (N2O), primarily released through human activities such as burning fossil fuels, deforestation, and industrial processes.
What is an ICJ Advisory Opinion?
Customary International Law vs. Treaty Law
Customary international law refers to international obligations arising from the general and consistent practice of states, followed by them from a sense of legal obligation. Unlike treaty law, which is based on explicit agreements between states, customary international law is unwritten and evolves from the widespread and consistent behavior of states, recognized as law.
ABOUT THE AUTHOR
Darius Spearman has been a professor of Black Studies at San Diego City College since 2007. He is the author of several books, including Between The Color Lines: A History of African Americans on the California Frontier Through 1890. You can visit Darius online at africanelements.org.
