von PHILIPP REHM
The Advisory Opinion on climate change [“the Advisory Opinion”] by the International Court of Justice [“ICJ”] has, after its release on 23 July, sparked a lot of praise and enthusiasm: “landmark opinion”, “a turning point in the international law governing climate change”, or “the moment international law explicitly rose to the climate challenge”. Interesting is that, although it is a nearly impossible task to address a topic as complex as climate change in a format as limited as an ICJ advisory opinion, there is hardly any criticism (for an exception, see here).
In the following, I will argue that there are two perspectives on the Advisory Opinion that are currently severely underdeveloped: a critical sensibility that highlights the insufficiencies and shortcomings of addressing climate change through legal proceedings in general, as well as in this particular Advisory Opinion, and – probably even more important – an analytical sensibility on the reasons why legal proceedings concerning climate change are generally met with so much enthusiasm.
A critical sensibility – but towards whom?
In recent years, there has been an increase in legal proceedings relating to climate change, including the four advisory initiatives at the ICJ, the ITLOS, the IACtHR and (still pending) the AfCHPR, or the broad field of “strategic climate litigation”. While a critical perspective should not scrutinize the variety of legal interventions altogether, it must at least be conscious of the Janus-faced position of legal proceedings between realistic actions within current legal frameworks and the necessary re-imagination of institutional settings or of normative vocabulary. In fact, strategic litigation as an affirmation of a legal status quo might even be counterproductive.
After all, international law is part of the structure that enables climate change and even legally protects destructive practices. Thus, scholars draw the conclusion that “international environmental law and general international law are structured in ways that systematically reinforce ecological harm.” This structure includes, but is not limited to, the north-south divide, state sovereignty or the perpetuation of a binary separation of humans and non-humans. Therefore, international legal vocabulary can be considered incapable of adequately addressing climate change and ecological crises.
There are several reasons why legal proceedings can be counterproductive, but this post will focus on one: the normative stabilization of insufficient action and vocabulary through its universalization and normalization in legal proceedings.
The ICJ operates in a (more or less) clear-cut doctrinal system, in which international law is the basis for its decisions and where rules on jurisdiction, sources, etc. sharpen its material contours. Therefore, the Court itself states that “as a court of law [it] can do no more than address the questions put to it through and within the limits of its judicial function” (para. 456). Within this function, the Advisory Opinion will and does not remain without legal criticism (e.g., here), but a critical perspective must primarily be aimed at the normative role of legal proceedings in general. Once asked, the ICJ has to give an advisory opinion with all its legal, political and moral implications, but the actors who start such proceedings also have the option of not asking the Court, or asking it differently. Starting proceedings is a choice that needs to be justified and can in return be criticized.
From the vantage point of the necessary measures to seriously confront climate change, the Advisory Opinion is insufficient at best. One shortcoming is, inter alia, the overly formalistic approach through which the Advisory Opinion does not take distinct responsibilities in historical and current contributions to climate change into account (Judge Yusuf, paras. 20 ff.), or the lack of argumentation in regard to statehood (Judge Tomka, para. 11). The lack of argumentation is particularly regrettable, as international courts often rather act as “interpretive agents”, in which their “semantic authority”, i.e., their ability to find persuasive and acceptable interpretations, creates the value of a decision.
In any event, even considering the advances within the Advisory Opinion, it is – needless to say – not able to overcome foundational problems such as the human/non-human divide, a state-centric outlook and the complex interdisciplinary program necessary to confront climate change; an issue the ICJ superficially pointed out, writing that law can only “inform and guide social and political action” (para. 456). Here, the ICJ affirms its primarily discursive role and maybe even incorporates a sensibility towards the interdisciplinarity of the climate crisis.
However, the more Courts have to frame existential questions in their limited vocabulary, and the corresponding growing presence of legal reasoning in the discourse on a complex, interdisciplinary aim – namely to address climate change and the interplay of humans and non-humans in their totality – the more insufficient, mediocre vocabulary and topical boundaries become stabilized. This is especially important as legal language, through the growth of advisory proceedings and strategic litigation, may increasingly find its way into a general discourse and suggest a way out of a crisis that it is structurally not able to provide.
This leaves a differentiation: In certain settings, court proceedings can certainly help claimants to gain compensation or obligate states to act (albeit only in a limited way and of course not in advisory proceedings before the ICJ). Moreover, such proceedings can motivate and sustain support (such as with the student-led movements to start proceedings before the ECtHR or the ICJ). But the more these proceedings are focused on, the more concerning a subtle slide into insufficient mitigating actions through formalized legal vocabulary constrained by professionalized reasoning becomes. Such a reliance on courts rather closes ways of imagining a sustainable world than it opens them.
An analytical sensibility – a sense of hopelessness?
Against the backdrop of an idealistic and deeply critical reimagining of a sustainable world, activists, lawyers and other actors now celebrate rather uncritically the growth and “success” of climate change litigation, although it risks stabilizing insufficient vocabulary and practical solutions. Yet, without hesitation, the ICJ was praised for a “historic turning point” or a “momentous ruling”. One sentence on climate change migration, the ever-lasting silence on indigenous knowledge, or the perpetuated human/non-human dichotomy are only some of many downsides of this Advisory Opinion; some grounded in the legal content of the Advisory Opinion, and some in the decision to ask an international court in disregard of its legal confines.
It seems as if the Advisory Opinion says less about climate protection than the reactions to it reveal about the current state of hope for a more sustainable future. These actors seem to be so much devastated by political inaction that any form of textual appreciation of climate change is considered “progress”. While it is undoubted that such authoritative statements can be used to counterargue governmental policies, the overall euphoria about the standard of climate action set out by the Advisory Opinion is still worrisome. The political inaction to counter the planetary destruction seems to have changed expectations about climate protection so dramatically that even major shortcomings in environmental legal vocabulary can lead to “landmark” decisions and “miracles”.
Zitiervorschlag: Rehm, Philipp, Remaining critical in the face of crisis, JuWissBlog Nr. 82/2025 v. 02.09.2025, https:/www.juwiss.de/82-2025/
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