von MAREN SOLMECKE und SÖNKE KREFT
On 23rd of July the International Court of Justice issued its long-awaited Advisory Opinion regarding the obligations of States in respect of climate change. The opinion has the potential to elevate climate action and influence negotiations under the United Nations Framework Convention on Climate Change with COP 30 ahead. This involves plans for a global fossil fuel phase-out, more ambitious national climate programs and the expansion of climate finance. For Loss and Damage the opinion provides an unprecedented basis for accountability.
In its long-awaited Advisory Opinion, issued on 23rd of July after being adopted unanimously, the International Court of Justice (ICJ) expresses clearly that States have a legal obligation under international law to act on climate change with the highest ambition. While Advisory Opinions are not legally binding, they still hold significant authority. Thus, the opinion has the potential to elevate climate action and especially influence negotiations under the United Nations Framework Convention on Climate Change (UNFCCC) with its 30th Conference of the Parties (COP) coming up in November in Brazil. This involves plans for a global fossil fuel phase-out, more ambitious national climate programs in the form of Nationally Determined Contributions (NDCs) and the expansion of climate finance. For Loss and Damage – the negative impacts of climate change – the opinion provides an unprecedented basis for accountability and an affirmation of the rights of those most affected by climate change.
Requesting an Advisory Opinion on the reality of climate impacts
Started by the youth-led grassroot organization ‘Pacific Islands Students Fighting Climate Change (PISFCC)’ the campaign for an Advisory Opinion by the ICJ elaborating on State’s obligations concerning climate change led to the Republic of Vanuatu initiating a request for such an Advisory Opinion at the UN General Assembly. The outcome was Resolution 77/276 requesting an Advisory Opinion from the ICJ considering two major questions: First, it asked for the obligations States have under international law regarding the protection of the climate system. Second, it inquired about the legal consequences for breaching those obligations.
It is noteworthy how the initiative aimed at requesting an Advisory Opinion as well as the advisory proceedings were shaped by the effort to draw a comprehensive picture of climate impacts and the everyday life of the people most affected by climate crisis. The advisory proceeding received close attention worldwide with 91 written statements being filed in the written proceedings, the highest number in an advisory proceeding in the court’s history. In the oral proceedings 107 statements from States and international organizations were presented. The campaign “The Witness Stand” by PISCC gathered testimonies by people affected severely by climate crisis, which showed that: “climate change is not a distant threat but a present-day catastrophe – one that has already uprooted communities, unraveled cultures, and upended entire ways of life“. Altogether, the proceeding provided a momentum for discussions about responsibility, compensation and climate impacts.
What does the Advisory Opinion mean for COP 30 and global climate action?
The Opinion is a vital message ahead of COP 30 to strengthen climate action firmly based in international law. It provides legal arguments that back up demands that have been debated in the policy realm for years.
As Brazil’s environment minister recently suggested, COP 30 could deliver a “roadmap to end fossil fuels”. The ICJ opinion has the potential to fortify this demand as it explicitly mentions obligations States have regarding their national fossil fuel industry: “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 licences or the provision of fossil fuel subsidies – may constitute an internationally wrongful act which is attributable to that State.”
Additionally, COP 30 is anticipated to deliver enhanced climate plans – the NDCs 3.0. While 90% of the Parties to the Paris Agreement failed to submit their revised NDCs by the original deadline in February, the opinion observes that States bear an obligation of result to prepare, communicate, and maintain successive NDCs. This clarification sets a new standard of accountability regarding the delivery of NDCs. Also, the court provides a powerful legal foundation for demanding more ambition within the NDCs. While countries have discretion in determining how they cut emissions, the ICJ formulates that it is a legal duty to present NDCs in line with the 1.5 °C temperature goal. This clarification points out a serious need for more ambitious action as full implementation of current NDCs would lead to a temperature rise of 2.5-2.9 °C.
Another major topic at the negotiations this year is the “Baku to Belém Roadmap”, which is based on the decision made on a new collective quantified goal on climate finance (NCQG) at COP 29 in 2024. The roadmap is supposed to provide a solid foundation for scaling up climate finance in the years to come. The Advisory Opinion supports this aim, as it affirms the duty to cooperate States have, pointing out financial assistance as one of three major means of cooperation.
While the “Baku to Belém Roadmap” is set on scaling up climate finance, the NCQG does not specifically address finance for Loss and Damage. The finance mechanisms for addressing Loss and Damage under the UNFCCC, the Fund for Responding to Loss and Damage (FRLD), is solely based on voluntary pledges by States. Although Loss and Damage has become a vital part of the UNFCCC negotiations in recent years, the topic is usually not negotiated in a context of demands for compensation and reparation – a notion which is being strongly opposed by developed countries. This reflected in intense debates about the legal basis for climate obligations of States in International Law. The Opinion is providing clarity regarding the relation between the UN climate treaties – the UNFCCC, the Kyoto Protocol and the Paris Agreement – and other international law. The court opines that the principle of lex specialis does not apply here. Rather, the climate treaties are complemented by other international law. This reasoning clarifies that States are not limited to UN climate treaties when seeking redress for climate harm. While this realization provides a momentum for scaling up Loss and Damage finance under the UNFCCC, it also supports the ability to seek accountability outside the UNFCCC – in front of courts.
All in all, the Advisory Opinion affirms that climate action is not solely a political or moral challenge but a definite legal obligation for States. It provides a robust legal foundation that strongly supports demands for more ambition and accountability.